Thursday, June 26, 2014

Criminal Law and Double Jeopardy by Michael S. Berg, guest blogger

One commonly misunderstood concept in criminal law is that of double jeopardy. The Fifth Amendment to the United States Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." However, this is narrowly read and there are some exceptions, and it applies only to cases where a final decision has been entered.

First, it only applies to the same sovereign, meaning the same government. So the same state cannot put you on trial for the same conduct more than once. However, you can be put on trial by two different states or by a state and the federal government. So, say you're accused of running a scam from your house in Florida over the internet. The government claims that you convinced a woman in Georgia to send you money. Even if you're acquitted in Florida, Georgia can still try you without violating double jeopardy, because it's a separate state. The federal government can also try you for any federal crimes you may have committed at this point. 
Double jeopardy also does not apply when you win an appeal. Appealing is when you ask a higher court to review the procedure or decisions of the court that had your trial. If the appeals court agrees with you, they will send your case back to the trial court with instructions on what they need to change. In this case, the court is allowed to have another trial.
The court is also permitted to retry you if there was a hung jury or if the judge had to declare a mistrial. A hung jury means the jury couldn't come to an agreement. Because there must be a legal decision, the case will be retried with a new jury. A mistrial means something went so wrong that it compromised the entire trial. For example, in some high profile cases the jury is sequestered and not allowed to speak with anyone about the case or access any news or media. If a juror violates this rule, the judge may declare a mistrial. Since the trial wasn't completed, there will generally be a new trial.

This article on Double Jeopardy is a guest post from Michael S. Berg , a San Diego based Certified Specialist in Criminal Law who focuses on criminal cases.

Sunday, June 22, 2014

My spouse is cohabitating.  Can I stop alimony payments?

In 2012, a new alimony law went into effect in Massachusetts. This alimony law contains a provision that reads:

General term alimony shall be suspended, reduced or terminated upon the cohabitation of the recipient spouse when the payor shows that the recipient spouse has maintained a common household, as defined in this subsection, with another person for a continuous period of at least 3 months

This language seems to say that if the ex-spouse cohabits for three months or longer that alimony is automatically terminated, reduced, or suspended. However, that is an incorrect interpretation of this law.

The payment or non-payment of alimony is controlled by court orders. Unless and until a Judge orders termination or suspension of alimony existing orders must be obeyed. This means that alimony must continue to be paid until a judge issues an order that changes the existing orders. Some separation agreements and divorce decrees have language that automatically terminates alimony upon cohabitation. Other agreements can't be modified by a Judge and alimony must continue to be paid despite the cohabitation. The rest of the orders of alimony must be presented to a judge in the form of a modification action in which the relief sought is termination of alimony. This allows the judge to hear facts to determine if cohabitation has occurred. In some cases, a judge may reduce alimony instead of terminating the payments.

This is a complicated area of law. Wrongful termination of alimony can result in a judgment of contempt against the payor. Before taking a unilateral action that violates a court order a family law attorney should be consulted. Such an attorney can review the existing orders and evidence of cohabitation and advise on the parties rights and obligations concerning future alimony.

Sunday, June 8, 2014

Don't fall for this child support trap!

It is not unusual for custody arrangements to need adjustments to change as the children get older. Visitation schedules often change. Children's friends and activities need to be taken into account. Sometimes children move from one parent's home to the other and primary custody changes. The courts encourage cooperation between parents and generally support all custody and visitation changes that occur through agreements. Even if these changes occur without approval from a Probate Court Judge they seldom are the cause for a contempt action in court. It is almost unheard of a court actually finding a parent in contempt for not returning a child to a parent where there is an agreement for a change of schedule.

Changes in child custody can effect the amount of child support paid. The current Massachusetts ChildSupport Guidelines use as a factor the amount of time spent with each parent. As a result, when child custody changes, the amount of child support changes as well. Parents who can cooperate to change custody and visitation for the benefit of the child may also cooperate to adjust child support. Just as parents change custody without judicial approval, they may also change child support by agreement and without judicial approval. This results in a trap for the parent who reduces or stops paying child support.

In the case of Taylor v. Taylor, Mass.App.Ct. 13-P-997 (5/13/2014) the daughter moved from father's home to mothers. The parties agreed that the mother would stop paying child support due to this change in custody. The father even signed a written waiver of child support. Three years later the father filed a contempt for unpaid child support. The court found that despite the written waiver by the father, the mother still violated a court order and was in contempt of that court order. As a result, she had to pay the three years of child support with interest and penalties even though the daughter lived with her and she supported the daughter. The trap is that despite an agreement of the parties, the mother paid to support he daughter and then paid years of child support to the father.

While Massachusetts encourages agreements between the parties, it is necessary to seek approval of such agreements by a Judge. There is a simplified procedure for approval of such matters. Frequently, the court approves these agreements without the necessity of a court appearance.

If parties are contemplating an agreement to modify a child support order, they should consult an experienced family law attorney to avoid falling into the child support trap.