I am moving to Massachusetts from another state, do I need a gun license?

If you wish to bring guns with you from another state to Massachusetts, or to purchase and possess firearms in Massachusetts, then you need to obtain a license.  To obtain an LTC (License to Carry) or an FID (Firearms Identification Card) you need to follow the same process as a current resident of Massachusetts, which we outline in this previous post: How do I obtain a gun license in Massachusetts?

Some firearms or accessories that may be legal in other states may not be legal in Massachusetts or may only be legal to possess if you obtain the full LTC/A.  You should confirm that any firearms you bring in are legal to possess in Massachusetts and that you have applied for the correct license to possess that firearm.

It is also important to note that the law exempts the move in and possession of firearms in the home for new residents for sixty (60) days.  Until you receive the proper license, do not transport any firearms and/or ammunition.

While there is this “grace period” for new residents, new license applications are taking more than the 60 days allotted by statute so you should apply right away.  Additionally, it may be necessary to temporarily store your firearms with a properly-licensed individual or FFL until your license is approved to be in full compliance with the law.

How do I obtain a gun license in Massachusetts?

In Massachusetts to legally possess firearms you need to have an LTC (License to Carry) or a FID (Firearms Identification Card).  Since the LTC allows you to possess more types of firearms than the FID and obtaining an LTC/A (Class A) will also grant you the rights and privileges that attach under the lesser FID, we recommend that everyone apply for an LTC/A.  You do not need to apply for both licenses.  (See M.G.L. c. 140 §§ 129B and 131).

You will need to apply to the Chief of Police of the Massachusetts town in which you reside, or, if you own a business, the Town in which you reside or own a business.  The official state application for an LTC/A is a three-page form; however some towns have additional requirements, such as additional letters of recommendation, or request that you sign a memorandums on the lawful use of force.

We suggest that you contact the police department in the town you intend to reside, and request their “packet”, which will have all the forms required.  The fee to apply for an LTC/A is $100.00.  (See M.G.L. c. 140 § 131).

Before you can submit your application, you will need to take a firearms safety course approved by the Massachusetts State Police.  There are a number of certified courses available, and you should not have any difficulty obtaining a safety course certificate.  Most instructors charge between $60.00 and $100.00 for the basic firearms safety course, and the course generally runs four (4) hours.  When signing up for the course, be sure to confirm beforehand that the course is sufficient to obtain your LTC.

Even once you have your LTC/A there are many restrictions on the types of firearms you can own in Massachusetts and on how you must store and otherwise maintain them.  Given the intricacies of Massachusetts firearms laws and the unique legal issues facing firearms owners in the Commonwealth, it is advisable to have an attorney who understands and practices in firearms law, criminal law and civil litigation.

Can I Expunge a Criminal Conviction in Massachusetts?

Unlike some other states, Massachusetts does not have an Expungement statute.  It is not possible to expunge a conviction in Massachusetts.  In fact, the Massachusetts Supreme Judicial Court recently ruled again in Commonwealth v. Moe 463 Mass. 370 (2012) that the Court lacks the authority to order a record expunged, even where the resulting record is the result of fraud on the Court.

It is sometimes possible to reopen a trial and undo a conviction, but this can only be done in very specific circumstances, and the arrest will still appear on your record.  Attorney Trask was successful in one case in reopening a juvenile conviction from almost thirty years earlier and thereafter having the charges dismissed based on the client's clean record since.  While the original conviction is no longer on the record, the charge is not expunged.

It is sometimes possible to seal a record, so that access to the record is prevented from certain requests.  For more information on that possibility read our previous post entitled: Can I Seal My Criminal Record in Massachusetts?

Do the New Child Support Guidelines affect my Bankruptcy Case?

On Thursday, June 20, 2013 Chief Justice of the Massachusetts Trial Court, Robert A. Mulligan, announced via Press Release the latest revisions to the Massachusetts Child Support Guidelines which will become effective on August 1, 2013.  We have provided a summary of the new Guidelines here.

The new guidelines will result in a typical reduction of between 10 and 15% for most cases, which could also affect bankruptcy cases.

Here are a few of the ways in which a change in child support could affect your bankruptcy case:

1. If you pay child support and are in the process of filing for bankruptcy, the budget your are preparing as part of the required schedules and your means test qualification calculations can both change if your child support changes.
    
2. If you receive child support and are in the process of filing for bankruptcy, your income and your means test qualification calculations can both change if your child support changes.
    
3. If you receive child support and you have already filed a Chapter 7 liquidation bankruptcy but have not received a discharge yet, a change in child support could require amending your filings to update your current income (or you might be asked this question at your Section 341 meeting).
    
4. If you receive or pay child support and you are currently paying a Chapter 13 bankruptcy plan, your plan payment could be affected by a change in support and you may need to file an amended plan and notify the trustee of the change.

These are just a few of the ways that a child support change could affect a bankruptcy filing, and if you believe that you might be subject to a child support modification you should also discuss this issue with your bankruptcy counsel.

SCOTUS decision on DOMA affects Joint Bankruptcies

On June 26, 2013, the Supreme Court of the United States declared in United States v. Wilson, that section 3 of DOMA (the "defense of marriage act") is unconstitutional. Previously this section prevented federal agencies from treating same-sex marriages as marriages for benefits and tax purposes. This means that many federal spousal benefits (such as spousal benefits for federal workers) were not be available to same-sex spouses.

Additionally, for Federal tax returns, same-sex married couples could not file under married status. The ruling in Wilson changed all this and for federal purposes marriages valid in Massachusetts are now also recognized by the federal government.

Although it is administered at a state level and each state has the ability to specify its own procedural rules and an alternate exemption scheme, the Bankruptcy Court applies federal law. Since the Bankruptcy Code applies federal law, bankruptcy courts were required to follow the requirements of DOMA (the Defense of Marriage Act) and refuse to recognize joint bankruptcy filings by same-sex married couples.  Under DOMA section 3 the definition of marriage for federal law was limited to marriage between one man and one woman, thereby excluding same-sex marriages from federal recognition.

The Wilson decision now provides same-sex married couples the same bankruptcy benefits as all other married couples including:

1. A married couple can petition for relief jointly. 
2. Debts that are owned by either spouse individually, and/or by both spouses jointly can be discharged under one proceeding. 
3. Both debtor-spouses proceed through the bankruptcy process together under the same case, meaning that all conferences and appearances are jointly held with both debtors, and both spouses can count on consistent relief from one bankruptcy court judge and one bankruptcy trustee. 
4. There is a financial savings to filing jointly: Joint debtors pay only one filing fee for the petition (ranging from $274 to $1,049, depending on the chapter) and usually attorney’s charge less fees for one joint filing then they would for two separate individual filings.
5. There is also a significant benefit to filing jointly because of how exemptions are calculated. Exemptions, i.e. the amount of property that cannot be taken to pay your debts, doubles for a joint filing, making it possible to protect more assets, regardless of which spouse owns the property.

Can I Seal My Criminal Record in Massachusetts?

sealing records. The act or practice of officially preventing access to a particular (esp. juvenile-criminal) records, in absence of a court order. See expungement.

expungement of record. The removal of a conviction (esp. for a first offence) from a person’s criminal record.

(Black’s Law Dictionary – Seventh Edition)

Under the Massachusetts 2010 Criminal Offender Record Information (CORI) Reform Act, an individual convicted of a crime (including entry of a plea of guilty) may seek permission from the court to seal (restrict access to information regarding the conviction) but not expunge (remove the conviction) from their criminal record.

Records may be sealed in generally three circumstances for most convictions:

1. Upon the expiration of time (10 years for a felony conviction; 5 years for a misdemeanor conviction)
    
2. Cases that were dismissed without probation, or that resulted in a not guilty finding may be sealed immediately; and
    
3. Offences that are no longer a crime (e.g., possession of less than one ounce of marijuana).

Determining when a record may be sealed is important. The waiting period is calculated from the date that the convicted person was released from custody, if incarcerated; or if the defendant was not incarcerated, the date of the disposition of the case. Additionally, conviction of any subsequent offence will reset the timing. This means that the five/ten year rule is determined from the date of the last criminal conviction.

In instances where there is no conviction (including a continuation without finding without probation, an acquittal, a finding of no probable cause, or a nolle prosequi), a petition to seal records may be filed immediately, but the Court must make a specific finding on the record that by sealing, substantial justice must be served. A vague risk of future harm, including a general threat to reputation or privacy is insufficient.

Are there any exceptions?

Yes.

Certain sex offenses can be sealed after 15 years, provided that the defendant has no duty to register as a sex offender and/or was never, at any time classified as a Level 2 or Level 3 sex offender. Otherwise, sex offense convictions may not be sealed. Crimes against public justice, such as perjury, filing a false report, witness intimidation, escape from custody and resisting arrest, as well as certain firearms offenses cannot be sealed under any circumstances.

Bankruptcy & Litigation Series: #2 My Ex is filing Bankruptcy!

While we have previously posted about the many issues that can arise when a bankruptcy happens at the same times as a divorce, what happens if a bankruptcy is filed after the divorce is final?

If a Bankruptcy action is filed immediately after the divorce becomes final it is possible for the Bankruptcy Court to undo the Agreement or Judgment of the Divorce Court if it appears the parties were attempting to defraud creditors (for instance if all of the assets were transferred to the non-debtor spouse rather than split equitably).  If the division is equitable, though, then it is unlikely that the Bankruptcy Court would want to revisit the divorce division.

However, the debtor might be bound to make payments in the divorce case which could affect eligibility for bankruptcy, and might have made promises to divide property that is now an issue. Domestic Relations Orders are non-dischargeable in most cases and therefore the decisions made in a divorce settlement, will have significant impact on what can and can't be discharged in the bankruptcy. There are three main areas where a bankruptcy can affect or be affected by a divorce judgment:  property division issues, support issues, and joint debts.

Property Division Issues in a Post-Divorce Bankruptcy:

If a divorce judgement requires that certain property be transferred from the debtor to their ex-spouse then the bankruptcy could affect that transfer.  If the transfer is made within 1 year prior to the bankruptcy then this could be considered a transfer to an insider and if it is not for fair value (for instance if the property division was not equitable), then the bankruptcy court can, upon motion of the trustee, require that the property be returned to the debtor's estate.

If the transfer hasn't been made yet, then that property is included in the debtor spouse's bankruptcy estate and the ex-spouse becomes another creditor of the estate.  Whether they take priority or not will depend on the nature of the property to be divided, and whether their claim is a non-dischargable domestic relations order or not.  Domestic relations orders are treated slightly differently for Chapter 7 and Chapter 13 bankruptcies, so the type of bankruptcy that is filed may also affect whether the property transfer is required or not.

Usually a failure to transfer property required by a Divorce Judgment would subject the debtor spouse to a Complaint for Contempt in the Probate & Family Court.  However, the Bankruptcy Court takes precedence and the Automatic Stay prevents creditors (even ex-spouses) from proceeding in other courts without first getting the permission of the Bankruptcy Court.

Support Issues in a Post-Divorce Bankruptcy:

Alimony and Child Support are considered Domestic Support Obligations, which are non-dischargable and must be paid by the debtor in a bankruptcy.  Any child support or alimony arrears are non-discharable in a bankruptcy and take priority over other debts.  In addition, if the family court awards the costs and attorneys fees of collecting alimony and child support in a Contempt action, those debts are non-dischargable as well.  In a Chapter 13, arrears may be paid overtime as part of the plan, but in a Chapter 7 they remain due immediately.

Practically speaking, going through a bankruptcy, might gain a debtor spouse some leeway from the Probate & Family Court in obtaining a payment plan for payback of the arrears, but they will still need to be paid.  If the ongoing support order itself is incorrect or onerous, this cannot be changed in the Bankruptcy Court, but can still be revisited by the Probate & Family Court by the filing of a Complaint for Modification.

If the debtor spouse is receiving child support or alimony this counts towards their income for bankruptcy means test purposes.  If it is owed but is not being paid then it does not need to be included, though the arrears may be an asset that should be listed.

Joint Debt Issues in a Post-Divorce Bankruptcy:

Post-Divorce there may be debts for which both parties are liable to the creditor but one or the other party has agreed (or been ordered) as part of the divorce to pay these debts.  Some typical examples of joint debts are home mortgages, joint credit cards, joint tax debt, and co-signed car loans.  If a joint debt is not paid off in the divorce, then from the creditor's perspective it is still owed by both parties.  If the divorce judgment requires one spouse to pay the debt and they do not make payment, it will affect both spouse's credit and the creditor can come after either or both of them to collect.  The spouse who was supposed to be protected in the divorce can likely file a Complaint for Contempt against the other spouse but this won't undo any credit damage and doesn't stop the collection action by the creditor.

In a Bankruptcy, the debtor is required to list co-debtors and the Bankruptcy Court can discharge debts to the third party creditor.  Whether or not the obligation of a debtor spouse to their ex-spouse is also discharged will depend on whether or not it is considered a domestic support obligation or non-dischargable domestic relations order.  It is likely important for the ex-spouse to participate in the bankruptcy and file a Proof of Claim if they believe there is an obligation to them as well as the creditor.  However, it is also important to note that even if a debt is non-dischargable, as a practical matter it may still be difficult to collect.  A debtor with no assets, found in Contempt in the Probate & Family Court, may not be able to pay the joint debt and the creditor will still pursue the non-bankrupt spouse.  It is therefore important to anticipate potential issues such as this at the time of the divorce, especially if it is obvious that one spouse's budget will not allow them to pay the bills they are agreeing to pay.