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Bernadette Stark

Bernadette Stark’s Answers

24 total

  • In Massachusetts are there any negative consequences to moving out of the family home once I tell my spouse I want a divorce?

    I want to make sure that I don't hurt my negotiating position in dividing assets or make the divorce process more difficult than it would otherwise be if I stayed at home. However, staying at home will be emotionally very difficult once the subje...

    Bernadette’s Answer

    This is a very difficult decision to make and any attorney providing you with advice on this issue will need a lot more information. By way of background, in Massachusetts, all property owned by either party is considered marital property regardless of who's name it is in or who is currently "using" or "living in" such property. It is up to a judge to determine who receives what, according to a number of factors listed in the statute (M.G.L. ch. 208 sec 34). The judge can consider factors such as who owned the property going in to the marriage, who contributed to any increase in value of such property (either financially or by maintaining it), etc. Moving out of the home, per se, does not necessarily waive your right to claim a financial interest in the home. That being said, if you would like to stay in the home during or after the divorce, moving out of the home before could have a negative impact on your claim to "use and occupancy" during the divorce or after. Also, if there are minor children who reside in the home, a judge might be reluctant to have the children move out of the home if it would not be in their best interests. This could mean that whoever has physical custody of the children might also have use and occupancy of the home. However, the judge will also consider each party's ability to financially keep or maintain the home after the divorce and whether either party can "buy the other out" of the home. Again, there are a lot of factors to consider here and I strongly encourage you to speak to an attorney about your options, considering your specific situation. Good luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • My landlord has not deposited my security deposit. What are my rights?

    I moved into my apartment September 15, 2010. My landlord took my security deposit and did give me bank paperwork showing a deposit was made. Soon after, I opened a new, countrywide bank account and have transferred everything to the new account. ...

    Bernadette’s Answer

    Massachusetts la regarding security deposits provides that the security deposit is ultimately the tenant's money, unless and until a landlord makes a legal claim for such funds. The law also requires the landlord to deposit the funds in an interest-bearing account and to provide the tenant with the requisite receipts so that the tenant is aware where his/her funds are located. Further, the law provides that "A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit." Although the statute does not provide a specific time limit by which the landlord has to deposit your funds, this could be read to mean that your landlord has to deposit the funds into the account within 30 days and the receipt is to serve as proof of such deposit. According to the statute, your remedy could include the refund of your security deposit. I would speak to an attorney with experience handling security deposit matters about the specifics of your situation and your options. Good Luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • Tenant's right

    dose tenant has to pay rent on the first day of each month? or the landlord should give tenant 5 days break to prepare rent? this is for residential rent. can landlord get into house without telling tenant ? thank you

    Bernadette’s Answer

    I agree with the previous post regarding when rent is due. However, it is important for you to know that Massachusetts law prohibits a landlord from charging a late fee if the rent is less than 30 days late. Which means if there is a provision saying that a late fee will be imposed if rent is not paid within 5 days, this is illegal. Nothing in this response is meant to suggest that a landlord cannot take other actions when the rent is consistently late, however to charge a late fee before 30 days is a violation of the consumer protection regulations. Regarding the second part of your question, a tenant has a right to the quiet enjoyment of his premises. The courts have interpreted this right to mean that a landlord must respect a tenant's right to privacy in his premises and must give the tenant "reasonable notice" before entering (unless there is an emergency, such as emergency repairs required). If your landlord is constantly invading your right to privacy by coming inside your home unannounced, you should speak to an attorney about your legal rights.

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • If I divorce my husband will it affect his chances of renewing his permanent residence card or applying for citizenship?

    My husband and I married 18 years ago, he has a permanent resident card(He is from Guatemala).His card will expire on 2013. He will need to renew soon. I would like him to be able to get his citizenship because of our children. I would need him to...

    Bernadette’s Answer

    It depends on how long ago he obtained the permanent resident card and whether he has a conditional card. When you first obtain a lawful permanent resident card ("LPR card"), it is conditional for two years. You have to file a petition to remove the conditions and then it is renewable every ten years. If he obtained the card more than two years ago and is not in conditional status, then a divorce does not affect his permanent resident status. However, if he is within the conditional period, then it might cause a problem for him (unless he files a waiver).

    If he has had his LPR card for over 5 years, then he can immediately apply for naturalization, regardless of whether or not you are divorced. For more comprehensive advice, it might be worth speaking to an immigration attorney. Good Luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • While in divorce proceedings

    While in divorce proceedings a death occurs with one of the spouse's parents and money is willed. Is the other spouse entitled to any portion of the willed money to become part of the divorce settlement?

    Bernadette’s Answer

    As the previous answer indicated, the Court will examine a number of factors in determining whether or not a spouse is entitled to any portion of the inheritance. Some of these factors include: the length of the marriage, needs of the parties and conduct of the parties (particularly with respect to financial issues during the marriage), among others. I recommend that you meet with an attorney who offers a free consultation. That attorney may be able to give you more information based on your specific facts. Good luck!

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  • Section 12-will this affect my custody request?

    i was suicidal at one point & had a section 12 out against me. will that affect my chances of winning custody of my daughter?

    Bernadette’s Answer

    • Selected as best answer

    In making a custody determination, a court has to examine several factors and determine what is "in the best interest of the child." This is the standard that governs all custody determinations. The Section 12, in and of itself, does not automatically prevent you from getting custody, but it could be difficult if it is recent. Your mental health history will be examined within the context of what is best for your child and to ensure that she is safe with you. Also, your history of contact (such as visitation or past custody) will be examined as well. If you are concerned about your medical history (as well as the Section 12), and are interested in seeking custody of your minor child, you should speak with an attorney who can learn more about your background and give you a better assessment of your chances of getting custody. Good luck.

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • Custody and support for the FATHER

    My ex wife signed over custody of our 16 year old son in January after dropping him off at my home October 2009. 1) we have a court date for child support - will she be ordered to pay? 2) Can I get back pay from the day he moved in with me? ...

    Bernadette’s Answer

    • Selected as best answer

    Custody determinations depend on a variety of factors. The judge will examine all these factors and determine what is in the "best interest of the child." Therefore, you can lose custody of the child if a judge determines that it is not in his best interest to reside with you, but rather with the other party who is making a claim for custody.

    In Massachusetts, public policy (and the law) mandates that both parents are obligated to financially support their children unless a judge finds a reason or justification to deviate from that obligation. Even if she in unemployed, a minimum order of $18.50 per week could be entered.

    It is generally a good idea to have a court order regarding custody, even though you may have an informal agreement. You will often have to verify that you are the custodial parent of a child (i.e., for his school, medical providers, emergencies, etc.) and you want to have that documentation available to you. If you think that this will be a contested case with respect to custody, you should definitely speak to an attorney for more specific information regarding what factors are examined by the court. Good luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • If you have an agreement when you go to case Management Conference can a decision be made and it become final at that time?

    I have a case management conference scheduled and we have agreed to everything, he is not going to it due to the fact he lives in another state. He also needs permission to go, which he can't get. Will the decision be made on that same day, or wil...

    Bernadette’s Answer

    It's possible to have your divorce heard at the case management conference provided that all the necessary documents for an uncontested divorce are on file, including a separation agreement, and that both parties would be available for the hearing. Along with all the necessary documents, you will also need to file a Motion to convert the divorce to an uncontested divorce. If the other party cannot physically be present at the hearing, the Court may allow them to participate by telephone, provided that you file a Motion to allow them to participate in this way and that the Court approves it. Assuming all this can be accomplished before the case management conference, it may be possible to get divorced at that time. In any event, once you have an Agreement and file all the appropriate documents with the Court, you can ask the Court to schedule a divorce hearing at any time. If you have questions regarding the specific documents needed in your case, you can ask the court clerks. Good Luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • My ex-landlord is trying to charge me 1000$ for "damage to walls and ceiling" which doesn't exist.

    My ex-landlord is trying to charge me 1000$ for "damage to walls and ceiling" which doesn't exist. I have pictures (undated unfortunately) that show that there isn't anything like 1000$ worth of damage. What can I do?

    Bernadette’s Answer

    You should definitely speak with an attorney about this right away, as time can be of the essence in these matters. First, did you pay a security deposit when you first moved in? If so, then a landlord can withhold your security deposit to pay for some of the damage that you caused and that is not considered 'normal wear and tear.' If you paid a security deposit, the landlord should have given you a statement of condition which described any damage that existed when you moved into the premises. You cannot be held responsible for damage that was there before you moved in. If you feel that your landlord is charging you for damage that you did not cause or that is beyond 'normal wear and tear,' then you need to contest the charges immediately. F you have proof such as photos, that will help your cause. Finally, before a landlord can withhold your security deposit, he has to provide you with an itemized list of damages, along with evidence such as receipts or invocs for any repairs, and signed under the pains and penalties of perjury. If your landlord has no done this, you can challenge the charges if he tries to collect in Court. However, you should speak to an attorney about how you can properly deal with this situation. Good luck!

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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  • What can a mother do about a fathers visitation when they aren't in the child's life till later on?

    The father of my little girl denies she is his. when he decides to believe me will I be able to only give him supervised visitation?

    Bernadette’s Answer

    There is not enough detail in your question to provide you with a thorough response. Generally, supervised visitation is used in circumstances where there is a history of abuse or neglect, or where there is a need for supervision due to special needs of the child or other special circumstances. If the child and the father have never met, this could potentially give rise to a need for supervision, depending on the age of the child, history of the father and other issues. It would be in your best interest to speak to an attorney about this matter to determine your options. As a side note: I practice in Greenfield and the waiting periods for many of the supervised visitation centers in the area can be pretty long. MSPCC is the most commonly appointed and their waiting period ranges from 2-6 months. Good Luck.

    The response given is not intended to create, nor does it create an attorney-client relationship or an ongoing duty to respond to questions. This is not intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. For a specific answer to your question, you should speak with an attorney who practices in this specific area of law.

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