What is an arraignment?
An arraignment is a court proceeding at which a defendant is formally charged with the offenses for which he or she has been arrested or summonsed into court and at which he or she enters a plea of either “guilty” or “not guilty.” Arraignment takes place only if the district attorney decides to file criminal charges. Arraignment is also the hearing at which bail is generally decided.
What is the difference between a misdemeanor and a felony?
In Massachusetts, a misdemeanor is a crime that is punishable by a maximum of two and one-half years in a House of Correction. It could also be punishable by a continuance without a finding of guilt, probation or a suspended sentence. Examples of misdemeanors include assault and battery, violation of a restraining order, driving under the influence of alcohol or drugs, disorderly conduct or shoplifting, among many others.
A felony is a crime that is punishable by a sentence to a state prison. Examples of felonies include murder, rape, armed robbery, and assault and battery with a dangerous weapon, among others.
How does bail work?
Bail is an amount of money used by the court to ensure that the defendant returns to court when required to do so. This allows a defendant to remain free, rather than in jail, while his criminal case is pending. (Jail is a place where somebody would remain if he or she could not afford to pay the bail while his or her case was pending for trial whereas a house of correction and a state prison are places where a defendant would be sent after he or she has been convicted.) Generally, judges consider two main factors when setting bail: whether the defendant is a danger to the community and whether the defendant is likely to flee. The court can present several bail options, including:
- Cash Bail. The defendant is responsible for paying the entire amount of bail in order to be released or, the defendant might be allowed to post ten percent (10%) of the full amount of bail in cash. The defendant will receive his or her bail back at the completion of all court appearances.
- Release On Own Recognizance. If the judge is convinced the defendant is not a flight risk or a risk to the community, he or she may release the defendant without imposing any bail.
- Surety Bond. A bail agent assures the court that he or she will be responsible for the bond if the defendant fails to appear in court when required. Not every court in Massachusetts has bail bondsmen.
What kind of sentence should I expect?
Sentencing options from which judges may choose include continuances without a finding of guilt, probation, fines, community service, suspended sentences or incarceration. Sentences imposed depend on the type and seriousness of the crime committed, the criminal history of the defendant and what, if any, threat the defendant poses to the larger community.
Why should the defendant plead guilty?
In certain cases, when the evidence against the defendant would be impossible to refute, the best option might be to enter a guilty plea to a lesser offense. This avoids a trial and might also avoid a harsher sentence.
Are criminal convictions a matter of public record?
Yes. Both misdemeanor and felony convictions are public record.
Do I have to talk to the judge or jury?
No. As a defendant, the Constitution of the United States protects your right to remain silent. This means that the choice to testify is one that you and your attorney will make together. In certain cases, it is better for a defendant not to testify at trial. Judges instruct the jury that a defendant’s failure to testify may not be considered an indication that he or she is guilty of the crimes alleged.
Will the police officer who arrested me be in court?
In order to be convicted of a crime, the District Attorney’s Office must prove the crime beyond a reasonable doubt. If the police officer who arrested you witnessed the case and there were no other witnesses, in all likelihood the police officer’s presence would be necessary in court and he or she would testify against you. If nobody from the police department is there to testify against you, it can sometimes lead to a dismissal of the charges.
Should I bring witnesses to court?
Every case is different, and you should speak to a qualified attorney about what options are best for your particular circumstances. However, if you have witnesses who can provide evidence in your defense, then it is best to have those witnesses speak with your attorney.
What rights do I have at the time of arrest?
Your “Miranda rights” are guaranteed by the Constitution of the United States and include your right to remain silent, your right to have an attorney present while you are questioned, and your right to have an attorney appointed to represent you if you cannot afford one.
Most people think that they are guaranteed their Miranda rights when they are arrested. However, the police do not have to give you your Miranda rights unless you are being questioned and are not free to leave. For instance, if the police take you into a room and start to ask you questions and you are not free to get up and leave, you must be given your Miranda rights for them to question you. If you feel pressured into speaking with them and you were not given your Miranda warnings, your lawyer would most likely file a Motion to Suppress your statements. On the other hand, it is your right to speak with the police if you choose, although most seasoned criminal attorneys would tell you not to do so.
Can the police question me after I have been read my rights?
If you agree to speak to authorities, you may be questioned after your Miranda rights have been read to you. You may, however, change your mind at any time and refuse to answer any further questions.
Is there a difference between federal and state laws?
Yes. In certain cases, state and federal law will conflict with each other. In those cases, federal laws supercede state laws.
Can I appeal?
You might be able to appeal if you believe that there is an error of fact or an error of law. However, as there are strict deadlines associated with appeals, you should speak immediately with a competent attorney if you wish to file one. The appeal process begins with the next highest court and ends when the highest court, either the state supreme court or the U.S. Supreme Court, either rules on your case or decides not to hear the case.
Can I represent myself in court?
You do have the right to represent yourself in court. However, you are well-advised to seek the services of a competent attorney. If you cannot afford an attorney, the court will appoint one to represent you for free if the crime you are charged with carries with it the possibility of incarceration if you are convicted.
Can the police conduct a search without a warrant?
If a police officer has “probable cause,” he or she may search your vehicle, body and home. An officer has the right to search your person at the time of arrest to ensure his or her own safety. There are other circumstances under which police may conduct searches without a warrant and your attorney can help you determine whether or not your rights have been violated by a warrantless search. If they have, any evidence obtained from that search may be inadmissible in court.
Can I file for a divorce in Massachusetts?
In order to obtain a divorce in the Commonwealth, you must have lived with your spouse in Massachusetts. If you did not live with your spouse in the Commonwealth, you may still obtain a divorce here if you have lived in Massachusetts for at least one year prior to filing for divorce.
How do I begin my divorce action?
The divorce action begins with one party filing a Complaint for Divorce in the Probate and Family Court of the Commonwealth. Once this is filed, it must be served upon the other party, known as the defendant. He or she then must file an Answer to respond to each allegation in the Complaint. The Answer must be filed with the Court and a copy must be sent to the plaintiff or his or her attorney. The defendant can also file a counterclaim for divorce if he or she chooses. These matters can become complicated, and you are well-advised to seek the assistance of an experienced attorney before filing for or responding to a Complaint for Divorce.
How long will my divorce take?
There are two types of divorces — contested and uncontested. Uncontested divorces are those divorces in which the parties have come to an agreement before beginning court proceedings. These divorces can be finished fairly quickly. Divorces that are contested — those in which an agreement has not been reached on one or more issues such as property division, custody, child support, etc. — may take up to a year or more to complete depending on the complexity of the circumstances surrounding the divorce.
If I file for divorce, what will stop my spouse from running off with all of our money?
As soon as a defendant is served with a Complaint for Divorce and a Summons, an automatic restraining order on assets goes into effect. This is a court Order that prohibits both the plaintiff and the defendant from liquidating, selling or otherwise disposing of any assets except in the normal course of business.
Who will keep our marital assets?
Division of assets can be complicated. In most cases, the parties complete a full and honest financial disclosure to each other and then reach an agreement on how to divide the marital estate. This is not always a 50-50 division. The Court considers several criteria when making a determination on the appropriate division of marital assets. In addition to those criteria, though, the Court may also take into consideration the contribution each party made to the acquisition, preservation and appreciation of the marital assets and the contribution that each party has made to the family as a homemaker. This ensures that “stay-at-home” parents, etc., are given their fair share of the marital property.
The length of the marriage can have a significant impact on the division of assets. Unless a valid prenuptial agreement has been executed, most personal and real property of each party is considered to be a marital asset.
Who will get custody of our child(ren)?
The judge uses the “best interests of the child” as the benchmark by which he or she will determine custody. To determine what those interests are, the Court considers the age of the child(ren), who has been the primary caregiver for the child(ren) and the details of the child(ren)’s daily activities.
Custody is divided into two types — legal and physical. In most cases, the parties will agree to share joint legal custody of the child(ren), which means that all decisions regarding the health, education and welfare of the child(ren) will be shared by both parents. Physical custody refers to where the child lives. More often than not, one parent will be awarded sole physical custody, meaning the child(ren) will live with him or her primarily. The “noncustodial parent” is granted visitation rights. Parties also have the option to share joint physical custody.
If the parties cannot agree on custody, a Guardian Ad Litem (“GAL”) may be appointed by the Court to represent the interests of the child(ren). This individual typically meets with all parties involved, including the child(ren) and issues a recommendation to the Court, which the judge takes into consideration when making a decision on custody.
How is child support determined?
Child support is based on the Massachusetts Child Support Guidelines, a formula designed by the Court to determine how much support will be paid weekly from the noncustodial parent to the custodial parent.
How is alimony determined?
Unlike child support, there is no formula for calculating alimony. In fact, alimony is not awarded in all cases. The purpose of alimony is to ensure that the needs of both parties are met, which is often understood to mean that both parties are able to maintain the standard of living that they became accustomed to while married.
Massachusetts law requires the Court to consider 14 separate criteria when considering whether and how much alimony to award. Those criteria are:
- Length of the marriage
- Conduct of the parties
- Age of the parties
- Health of the parties
- Station in life of the parties
- Occupation of the parties
- Amount and sources of each party’s income
- Vocational and other skills of the parties
- Employability of the parties
- The estate of the parties
- Liabilities of the parties
- Needs of both individuals
- Each party’s opportunity for future acquisition of capital assets and income
- Current and anticipated future needs of any dependent children
The alimony reform law enacted in March 2012 significantly changed the way alimony is characterized and awarded. The terms “temporary alimony” and “permanent alimony” are no longer relevant. Instead, the duration of alimony — if it is to be awarded at all — is a function of the length of the marriage. However, the court has discretion to award alimony for an indefinite period.
Alimony is considered taxable income for the payee, and is tax-deductible for the payer spouse.
My spouse is abusing or threatening to abuse me. What do I do?
If your spouse is abusing you, threatening to abuse you or putting you in fear of imminent abuse, you should contact the police as soon as possible. You can also seek an abuse protection order from the Court to prevent your spouse from abusing or threatening to abuse you.
When can I get remarried?
If yours is an uncontested, no-fault divorce (1A divorce), you can legally remarry 120 days after entry of the order approving the separation agreement. If yours is a contested, no-fault divorce (1B divorce) or a fault divorce (1 divorce), the divorce will not be final until 90 days from the date of the hearing if a judgment is entered. At that point, you will be free to remarry.