Jul
26

Our House

Our house is a very, very, very fine house with two cats in the yard, Life used to be so hard,
Now everything is easy …… (Crosby, Stills and Nash)

Recently, I overheard a conversation between a father and son. The son was think of buying a house, and they spent the entire conversation only on money issues. While money issues are obviously important, there are more issues. This made me think that while buying a house is a grueling process taking from days up to a few months, or maybe even years, numerous first-time buyers make mistakes that can be easily avoided. Here are a number of issues to think about:

 Letting your emotions control your decisions! Buying a house can be a long and frustrating process. These days, starter houses go quickly, and it’s common for first-time buyers to experience rejection on the first offers they make. In this kind of environment, it’s easy to fall in love with a house that’s out of your budget, or get caught up in the heat of a bidding war and end up paying more than you expected. “It’s OK to get excited when you think you’ve found your house, but you don’t want to put yourself in a bad spot,”

 Being Too Picky! Go ahead and put everything you can think of on your new house wish list, but don’t be so inflexible that you end up continuing to rent for significantly longer than you really want to. First-time buyers often have to compromise on something because their funds are limited. You may have to live on a busy street, accept outdated decor, make some repairs to the house, or forgo that extra bedroom. Of course, you can always choose to continue renting until you can afford everything on your list. You’ll just have to decide how important it is for you to become a house owner now rather than in a couple of years.

 Lacking Vision! Even if you can’t afford to replace the hideous wallpaper in the bathroom now, it might be worth it to live with the ugliness for a while in exchange for getting into a house you can afford. If the house otherwise meets your needs in terms of the big things that are difficult to change, such as location and size, don’t let physical imperfections turn you away. Besides, doing house upgrades yourself, even when you have to hire a contractor, is often cheaper than paying the increased house value to a seller who has already done the work for you.

 Being Swept Away! Minor upgrades and cosmetic fixes are inexpensive. If you’re on a budget, look for houses whose full potential has yet to be realized. Also, first-time buyers should always look for a house they can add value to, as this ensures a bump in equity to help you up the property ladder.

 Compromising on the Important Things! Don’t get a two-bedroom house when you know you’re planning to have kids and will want three bedrooms. By the same token, don’t buy a condo just because it’s cheaper when one of the main reasons you’re over apartment life is because you hate sharing walls with neighbors. It’s true that you’ll probably have to make some compromises to be able to afford your first house, but don’t make a compromise that will be a major strain.

 Not Thinking About the Future! It’s impossible to perfectly predict the future of your chosen neighborhood, but paying attention to the information that is available to you now can help you avoid unpleasant surprises down the road. What kind of development plans are in the works for your neighborhood in the future? Is your street likely to become a major street or a popular rush-hour shortcut? Will a highway be built in your backyard in five years? What are the zoning laws in your area? Is there is a lot of undeveloped land? What is likely to get built there? Have house values in the neighborhood been declining?

Once you have found your dream house, and you have avoided many of the first-time buyers mistakes, then it is time to call you attorney before you sign and contract obligations.

Jun
02

The K&G Brand: Attorneys & Counselors at Law

Attorney & Counselor at Law: Isn’t that redundant? No, you want me to be a counselor so that you don’t need me as an attorney. As a counselor, I’m a coach—an expert trusted advisor directing from the sidelines. As an attorney, I’m in the game calling plays on the field as your agent.

In 2017, three different client situations arose and I noticed how my dual roles as a counselor and attorney came into play:

  • My acumen as an attorney and counselor at law is best described as being a listener and a mentor.
  • I work with individuals and companies as a partner. My clients rely on me to thoroughly think about their business goals and apply my many years of experience to provide advice based on principled thinking that not only has their back, but also their future.

The three clients were two high end executives ready to launch new careers in new companies, and a business corporation involved in a convoluted contract dispute.

Each client knew that they would benefit from my outside insight. They knew that I would see what they could not see. They are on the outside looking in. I would observe their life, ask questions and gather facts, and resolutions would begin to emerge. It is my job to help them clearly see their options and the decisions which will provide fresh insight. For Executive A, we discussed the value of a base salary versus a year-end bonus. After several chats, Executive A understood that the real upside was going to be his bonus, not his salary. He was able to negotiate a new bonus at twice the amount of money. For Executive B, we discussed his ability to maintain an important lifestyle aspect. This lifestyle enables him to perform certain charitable work. He was able to negotiate an acknowledgement that he would be unavailable weekly for a certain portion of the day, and still maintain his new position. As for the Business Corporation, it was time to stop fighting this battle, regroup, and move on in a completely different, new, and exciting direction.

As an excellent listener and strategist, I have trained ears to hear my clients’ goals and then translate them into actionable next steps. My clients help me develop strategies to increase our success and harness the power of us working as partners. As a partner, I ask specific questions about their personal and professional life to ensure that they’re an example of excellence. For instance, I talk about marriage and family, lifestyle, nutrition, exercise and other disciplines: as for Executive A, it was made clear in his employment contract that there would be very limited overnight travel; as for Executive B, he had a national presence, aside from his new position, and we carved out his ability to speak and write blogs; as to the Business Corporation, the “fighting” was having an adverse effect upon the CEO’s health, the change in strategy reduced his stress level.

Is it redundant? No! In connection with our move we changed our tagline from just “Attorneys” to “Attorneys and Counselors at Law.” Why? Because either as a coach or an attorney we are very deliberate in our advice and our approach. At K&G, these roles are interchangeable.

Jun
02

Massachusetts Legislators: Shame on YOU

Full Disclosure: As of this article going to print, the jury, officially, the members of the Massachusetts House and Senate are still out. On Tuesday, May 16, 2017, the Joint Committee on Public Health held a hearing on equal access to birth records for all persons born in this state who happen to have been adopted during a particular span of years: July 17, 1974 to January 1, 2008. All those who fall outside of the time line are exempt from this barrier.

And why say shame on the Massachusetts Legislators? Because this is not the first time bills to right this wrong have been filed, only to be sent out to committee and never heard from again. This issue has been kicked around the State House since 2015. Thank you, Sean Garballey and Kate Hogan, for presenting the bill in the House: Bill H. 1163. Thank you James Eldridge for presenting the bill in the Senate: Bill S. 1195. And thank you to all of the legislators who joined as petitioners.

Massachusetts has always been ahead of the wave: single parent adoptions, same sex adoptions, same sex marriage, enforceable open adoption contracts for contact, pre-birth orders in gestational carrier agreements, as well as so many other family issues for which I applaud our courts. And yet, our legislature falls flat when considering the needs of all persons who were born in Massachusetts and subsequently adopted.

Let’s hope the Joint Committee on Public Health has listened carefully. The current statute: M.G.L.Ch. 46 s.2B precludes people adopted who happened to be born in Massachusetts between July 17, 1974 and January 1, 2008. WHY? Those opposed assert that anonymity was promised during those particular years for mothers who gave birth in Massachusetts and made an adoption plan.

There is no good or valid reason why this statute should remain as is for several basic and constitutional reasons:

  1. The premise upon which opponents rely, that mothers who gave birth in Massachusetts between July 17, 1974 and January 1, 2008, and made an adoption plan, were promised confidentiality is false. The Massachusetts Surrender is an unconditional and voluntary surrender of one’s child. M.G.L.Ch. 208 § 2. Any promises made to mothers or fathers premised upon the voluntary termination of their parent rights are prohibited and if true, would void the surrender.
  2. The statute is in violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.
  3. Courts of competent jurisdiction have overruled this so-called promise of anonymity countless times, based upon a showing of good cause, a discretionary standard.
  4. Biological family medical history is key to prevention, early diagnosis and treatment.

Perhaps by the time this article goes to print, it can be thrown out with yesterday’s newspaper.

Jun
02

Adult Adoption: Choosing a New Family

Adult adoption is legal in most states and is more common than you think. Why would one adult wish to adopt another adult? The most common reasons for an adult adoption are formalizing an existing parent-child relationship between a former foster child and a foster parent, formalizing an existing relationship between a step child and a step parent, and creating legal inheritance rights within a relationship.

The requirements in each state may differ, but overall the process is fairly straightforward and less complicated than the adoption of minor children where the court must consider the parental fitness of the adoptee’s parents, the ability of the parent to support the adoptee and what is in the best interest of the adoptee. In Massachusetts, there are few requirements. First, an adult may adopt someone who is younger as long as the adoptee is not a spouse, brother, sister, uncle or aunt. Second, if the adult petitioning the court for adoption is married, the spouse must also join in the adoption. Third, the adoptee must consent to the adoption as is the case for the adoption of any person over the age of 12. Fourth, Massachusetts further requires that if the adoptee is married, the spouse must also consent to the adoption, but the consent of the adoptee’s birth parents is not required. Finally, the court requires a statement of affidavit of the petitioner(s) explaining the parent-child relationship and reason for the adoption. The adoptee has the option of requesting a new name and new birth certificate, but neither is required.

Whether intended or not, adult adoption creates inheritance rights. The adoption gives the adoptee the right to inherit from the adopter as a legal child under a will and under the laws of intestacy which is when someone dies without a will and the state dictates who can inherit, and in what order of preference.

In Massachusetts, we are fortunate that our adoption statute supports and encourages adult adoptions and the formalizing of existing parent-child relationships. Our office has handled numerous adult adoptions, each with its own set of unique circumstances. Recently, we have represented step parents wishing to formalize the long term and loving parent-child relationship with a step child, a couple who adopted their former high school exchange student from Europe, now married, and to whom they had grown close over the years, and an aunt who adopted the adult niece whom she raised, after the niece’s mother passed away. In each instance, the adult adoption enabled the adult adoptee to choose and become part of a new family. Even for an adult adoptee, an adoption can provide comfort and security by giving legal permanence to an emotional bond.

Jun
02

Before You Say, “I Do”

It is no secret that divorces tend to be emotionally painful, protracted, and very expensive. The filing for divorce is only the beginning and these issues are usually brought on when the parties are determining the terms of the divorce who keeps the house, what happens to the money in joint bank accounts, whether there will be spousal support, etc. One way to minimize the difficulty of this process is to have a premarital agreement, colloquially referred to as a “Prenup.”

In situations where one partner expresses any hint of wanting a Prenup to the other, the other’s reaction is usually one of disapproval. Understandably, when we hear the word “Prenup,” negative associations, such as noncommitment, usually come to mind. Another common association with prenups is that only people with significant assets utilize them. The stigma behind premarital agreements must change. They should not be thought of as casting doubt on the strength of the marriage or as something only wealthy people use, but rather as a pragmatic protective measure against the potential emotional chaos and financial disputes inherent in a divorce. Premarital agreements can spell out the terms of a divorce, such as how assets are to be divided, simplifying and speeding up the process, which in turn saves emotional stress and attorneys’ fees. When considering having a premarital agreement, it is important to remember these three important points: (1) you can contract about almost everything; (2) there must be full disclosure; and (3) enforcement is not automatic.

While a premarital agreement can have terms about almost anything, any term addressing the custody of children or child support will be unenforceable. A premarital agreement can help spare heartache and stress of asset division, but cannot address any issues relating to children. If it contains terms surrounding issues relating to children, those portions will be stricken and the rest of the agreement will remain.

Before the parties execute the agreement, they must have fully disclosed all assets to the each other. This helps to ensure that the parties understand the extent of their rights and what it is they are agreeing to. In the event that enforcement of the premarital agreement is necessary, one spouse’s failure to fully disclose all assets can render the agreement unenforceable.

Lastly, before a premarital agreement can be enforced, it must pass two tests; it must be fair and reasonable, (1) at the time of its signing, and (2) at the time of its enforcement. Factors such as one party’s not receiving legal advice, failure to fully disclose assets, or if the agreement is too one-sided can lead a judge to find the agreement not fair and reasonable at its signing. A common concern about prenups is that during the marriage, financial situations can change drastically and the prenup will leave one spouse at a significant disadvantage, but the second test helps to allay this concern. If such was the case, then the premarital agreement would not be considered fair and reasonable at the time of its enforcement.

Prenuptial agreements have slowly started to gain acceptance in the legal system, but for many, the idea of a prenuptial agreement still elicits negative feelings. It is important to remember that a prenuptial agreement may very well never be needed after it is signed, but when faced with the reality that “til death do us part” is sometimes cut short, a prenuptial agreement makes sense to protect both spouses from a lengthy and emotional divorce process.

Apr
19

Just a little change…

One of the ways I give back to the Probate and Family Courts is by volunteering as “Lawyer of the Day” in the courts where I frequently practice. There are many reasons why I do this. As always, it is because I appreciate how hard the staff works assisting attorneys and litigants in a resources limited environment. Initially, it was an opportunity to learn more about the procedures and forms I would not necessarily encounter in my practice at the time. Then, it was to have the opportunity to practice thinking fast “on my feet” and problem solve one case after another quickly. (There are often long lines for the lawyer of the day).

That was then, and this is now. I still volunteer as Lawyer of the Day, but I bring a different perspective. I view my role as assisting people to resolve their issue, not just by filling out the necessary paperwork and honing my skills, but also by posing questions such as: What harm is there in changing the rules of the game? Could a shift in your attitude possibly bring about a compromise of some sort? I then often role play with them. Surprisingly, the role playing frequently clarifies the point!

Admittedly, there are times when I get discouraged hearing negative after negative comments from clients as well as others caught in the system. Stating that the courts are not fair, the system does not work, and my former spouse seems to get away with his/her antics every time, only exacerbates the tension between the parties. Moreover, it appears that judges grow tired with these self-defeating attitudes.

The likely result: little is accomplished; constructive changes are few, and anger levels do not dissipate! One of my goals at Konowitz & Greenberg is to support a client in making a change, small as it may be.

Before blaming the system, muster the courage to stand outside of yourself; take a stab at seeing your conflicts and friction in a different light. Treat life as a kaleidoscope.

As the song from Beauty and the Beast states, “Just a little change, small as it may be… both a little scared, neither one prepared…”

Apr
10

What is Implicit Bias and Why is it Important?

The Massachusetts Supreme Judicial Court implemented a rule requiring newly admitted lawyers to complete the “Practicing with Professionalism” course, which I did a few weeks ago. This eight hour course touches on several topics, but one topic I found particularly useful was that of multicultural competency in lawyering.

We began this segment of the course by participating in an exercise where pictures of cars were displayed on the projector and in groups, we were to guess the demographics of that car’s driver. The whole auditorium envisioned the driver of the sleek BMW to be a middle-aged male. Likewise, the consensus was that the soccer mom drove the minivan. These associations are the product of implicit bias (i.e. stereotypes) and while this exercise with the cars was lighthearted, implicit bias can have dangerous implications when positive or negative associations are linked to people or groups of people.

Lawyers will work with clients and potential clients of all different ages, genders, races, sexual orientations, religions, nationalities, etc., making multicultural competence extremely important to a successful attorney-client relationship. To achieve multicultural competence, lawyers must confront their own implicit biases and be aware of what biases they hold. It is normal to develop biases because throughout the course of life, people have interacted and continue with countless social groups and people, causing these positive and negative associations to form based upon our experiences. Although it is normal to have biases, they can affect decision-making and ultimately, the caliber of representation a lawyer provides.

To overcome these biases, first, one must engage in honest self-reflection and actively locate both positive and negative biases held. When these biases are present in an issue, additional measures should be taken to mitigate the influence the bias may have. Using note-taking or other types of information processing can help to ensure that a decision is logical and merit-based, rather than influenced by bias. This type of processing allows for opportunities to catch when biases are creeping into the thought process. Allotting more time or discussing with teammates for cases where a bias is present also serves to safeguard decisions from bias. This ensures that the reasoning behind a decision is grounded in strategy and merit.

The law applies to all people and lawyers must confront their own biases to better represent the diverse clientele to whom the law applies to. By being self-aware and active about one’s own implicit bias is the first step to combatting the harm these biases cause.

Feb
28

“The times they are a-changing”

Ever since Donald Trump was elected President, I noticed an increase in activism. A day has not gone by in which I am not engaged in conversation about a Trump Policy. I realize that I was not concerned about the position I took or the position of the person I was talking with, but rather I was excited that a discussion was on going. This activism continues in my family when my wife attended a rally in Boston, and my daughter attended a different one. I have taken to writing letters to our elected official, about once a week.

The First Amendment of the Bill of Rights addresses five rights. The limits on government interference with religion, speech and the press were the result of the uniquely American experience. The right to peaceable assembly was a needed protection to exercise the first three. The First Amendment’s fifth right will come as a surprise to many. Only 1% of Americans even know that it exists. The Right to Petition was central to constitutional law and politics in the early United States. It is the First Amendment’s capstone: “Congress shall make no law … abridging … the right of the people …to petition the Government for a redress of grievances.” The Right to Petition is unknown to most Americans, or, if known, considered to be an extension of the first four rights, and not a right that stands on its own. This ignores Chief Justice John Marshall’s declaration: “[N]o provision of the Constitution was meant to be without effect…” Marbury v. Madison, (1803).

Today, in this electronic world, everyone is aware of how the President can get his message out by a Tweet. However, we, as citizens, have the electronic power as well to get any message we want out there. There is a website which give you instruction on “How to Petition the Government in Under 5 Minutes” (http://usgovinfo.about.com/od/rightsandfreedoms/a/How-To-Petition-Government-Online.htm). If you want to get even more narrow, you can petition directly to the White House (https://petitions.whitehouse.gov). This is a website developed by We the People which “expands the options for contacting the White House and does not displace current official methods of communication, such as mailing or emailing the White House.” On this website are several petitions already and you can just simply join one of them; or alternatively start your own. Even further, you can contact the White House directly through the White House Office of Correspondence, which maintains a contact form and information about communicating with the White House at (www.whitehouse.gov/contact)

How prophetic the words from the recipient of the 2016 Nobel Prize in Literature, Bob Dylan: “Come senators, congressmen; Please heed the call; Don’t stand in the doorway; Don’t block up the hall; For he that gets hurt; Will be he who has stalled; There’s the battle outside raging; It’ll soon shake your windows and rattle your walls; For the times they are a-changing.

Jan
31

Do You Know What’s In Your Will?

Before you signed your Last Will and Testament, did you read it carefully? Do you know and understand the contents of your will? Does your will reflect your wishes today for the disposition of your assets? The language in a will is not always easy to follow or comprehend, but there is a reasonable expectation that you are familiar with the terms of the will, either by discussing the terms with an attorney before it’s drafted and, by reviewing it before signing to ensure the will accurately reflects your wishes.

For over a hundred years in Massachusetts there has been a presumption that one who signs a will, a testator, knows its contents. While this presumption is rebuttable, in Massachusetts, unlike many states, there is no clear standard setting forth the burden someone challenging the allowance of a will must meet to overcome the presumption. In a recent case, Barounis v. Barounis, the Massachusetts Appeals Court faced this hurdle when confronted with multiple challenges to three conflicting estate plans that a Greek business owner with limited English language skills signed in the decade prior to his death. Assuming the need for “clear” evidence in support of a finding that a testator did not as a matter of fact know the contents of the most recent will he executed, the court found that the presumption was rebutted where the testator spoke only Greek, did not read or speak English, and did not ever express his wishes to his accountant who arranged for the will to be drafted by an attorney, who himself, did not speak Greek, and never spoke to the testator before meeting with him to sign the will.

While the facts in the Barounis case may seem extreme, they serve as a reminder to take special care when preparing an estate plan for a client. First, a client who does not have full command of English must have an independent translator during all attorney-client communications if the attorney does not speak the client’s native language. Second, regardless of the circumstance, adult children of the client should not participate in the initial meeting between attorney and client to protect the client from potential undue influence. Finally, it is critical that attorneys not only request written information about assets from a client, such as with a questionnaire, and document the wishes of the client during the drafting process, but also review the details of the estate plan before a client executes the documents. These steps will ensure that a testator knows and understands the terms of his will and estate plan, and can avoid dire consequences as we saw in the Barounis case.

So, on a final note, if you don’t remember what your will says or whether it still reflects your wishes, dig it out of the safe deposit box or contact your attorney. It may be time for an update.

Dec
23

What Will THEY Think of Next?

Three Person Embryo

MITOCHONDRIAL REPLACEMENT THERAPY (MRT)

I recently wrote an article entitled DNA What’s it to you? which can be found on the K&G website www.kongreen.com. My current blog focuses on another aspect of DNA: the manipulation of embryos to avoid inherited mitochondrial DNA. MRT is a controversial therapy which will allow women who have faulty DNA to avoid the risk of passing on genetic diseases to their children.

MRT was made legal in Britain in 2015. The treatment seeks to prevent mothers who have a high risk of transmitting certain diseases to their children, caused by mutations in mitochondria (tiny structures that provide energy inside cells). Children inherit all their mitochondria from their mothers. MRT uses healthy donor mitochondria to replace the faulty ones. The child will have 46 chromosomes from its parents, plus additional DNA from the donor’s mitochondria. The nucleus from the mother’s egg is plucked and then placed in a healthy donor egg to be fertilized, or a fertilized egg.

The jury is out. Thus far, it appears only one child, born April 2016, in Mexico, assisted with a U.S. medical team, is the product of this experimental procedure. Whether or not this process will in fact avoid serious health risks will be determined as the child continues to grow.

There has always been controversy over human embryo research. Concerns that jump out are the commercialism of such procedures, impacting on an (“innocent”) embryo. MRT preclinical research or clinical investigations involve the creation, manipulation and possible destruction of embryos. Others say MRT is not about saving children because the technique does not address a medical need likened to treating someone who is currently stricken. And, of course, there are other not so controversial options available. Families may be created through other means, notwithstanding the children will not be genetically related to the mother. Research and funding would be better spent by focusing on children afflicted with diseases caused by mutation in the genes of the nuclear DNA, rather than embryos.

Once again I say, DNA, what’s it to you?

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