Property Acquired During Divorce Proceedings Remain Subject to Division

When a couple is going through a divorce and figuring out alimony, the amount of alimony is calculated based upon the “length of the marriage.” While this term seems arbitrary, Massachusetts General Law c. 208, § 48, inserted by St. 2011, c. 124, § 3, which was adopted as part of the Alimony Reform Act of 2011, defines the length of the marriage as “the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support.”

In August, the Massachusetts Appeals Court was faced with the task of determining whether the definition used in calculating alimony should also be used in determining the length of the marriage when dividing marital assets. Valaskatgis v. Valaskatgis, 87 Mass. App. Ct. 756 (2015).

In this case, the wife was served with the complaint for divorce on August 29, 2012 and the parties entered into a separation agreement on September 30, 2013. During this time period, the husband earned approximately $96,000 in overtime compensation. The lower court found that the marital assets were to be divided as of the date of the separation agreement and not as of the date of service of the complaint.

The husband appealed the ruling, arguing that the definition from the Alimony Reform Act should be applied and that his overtime should not be included as part of the marital estate since it was earned after the divorce complaint was served. The wife, on the other hand, argued that the earned income should be included in the marital estate and that she was rightly entitled to one-half of the $96,000.  

The Appeals Court determined that the definition of the length of the marriage as being the number of months from the date of the marriage to the date of service is not applicable when used elsewhere in Massachusetts General Laws. A couple is not divorced until the judgment becomes absolute pursuant to Massachusetts General Law c. 208, § 21. Additionally, judges have a great deal of discretion when determining the division of marital assets, which includes examining the time period after the complaint was served.

The Appeals Court affirmed the lower court’s decision to divide the marital assets, including the husband’s additional income of $96,000, from the date of the separation agreement.

If you feel like you may be entitled to marital property acquired subsequent to the complaint for divorce being served or have general questions pertaining to divisible marital assets and divorce, please contact the Family and Domestic Relations Division at Shapiro Law Group, PC.

By Anna Shapiro

Employee or Independent Contractor? Are Your Employees Classified Correctly?

On July 15, 2015, the U.S. Department of Labor (USDOL) Wage and Hour Division (WHD) issued an Administrator’s Interpretation on the application of the Fair Labor Standards Act’s (FLSA) “suffer or permit to work” standard and the misclassification of employees as independent contractors.

WHD Administrator, David Weil, describes the misclassification of workers as a “problematic trend” and WHD continues to bring successful enforcement actions against employers who misclassify workers. While the subject matter of the interpretation is nothing new, it is meant to offer guidance regarding the application of the FLSA and to aid in curtailing misclassification. The WHD is committed to combating misclassification as some employees intentionally misclassify in order to cut costs and avoid compliance with labor laws. The misclassification means that employees are not afforded workplace protections such as minimum wage, overtime compensation, and workers’ compensation.

Determining The Classification

To determine whether a worker is an employee or an independent contractor, Courts look at whether the worker is economically dependent on the employer. The Supreme Court and Circuit Court of Appeals developed an “economic realities” test to determine a worker’s status under the FLSA. While no single factor is determinative and the list of factors is not exclusive, they typically include:

1.    The extent to which the work performed is an integral part of the employer’s business; 2.    The worker’s opportunity for profit or loss depending on his or her managerial skill; 3.    The extent of the relative investments of the employer and the worker; 4.    Whether the work performed requires special skills and initiative; 5.    The permanency of the relationship; and 6.    The degree of control exercised by the employer.

Ultimately, the determination rests on whether the worker is economically dependent on the employer. If the worker is genuinely in business for himself then he is probably in independent contractor, if he is economically dependent on the employer then he is probably an employee.

It does not matter whether the employer has classified the worker as an employee or an independent contractor. The economic dependence factors are guidelines to help determine the correct classification of workers. Proper classification is crucial to afford both employers and workers proper legal protections. If you have questions concerning how to classify your workers or the legal implications of such classifications, please contact the Business Law Division at Shapiro Law Group, PC. 

By Anna Shapiro

New Visa Bulletin for October Changes the Way to File for Green Cards!

For years, the United States Department of State has controlled when people can file for permanent residence (green cards) based on family-based and employment-based petitions. For everyone other than a spouse, parent or minor child of a U.S. Citizen, they must wait their turn before they can even file their green card application. These wait times can range from 1 month – 14 years or more. Imagine that the United States only has a certain number of green cards available each year to potential applicants. Being the spouse, minor child, or parent of a U.S. Citizen means that you never have to wait – you are considered an “immediate” relative and are eligible to apply for your green card “immediately” after the approval of your relative petition, or sometimes, even earlier. However, adult children, relatives of permanent residents (those with green cards), and siblings of U.S. Citizens are not considered as high a priority.

In those cases, Immigration has prioritized who they feel is the most important to reunite with their U.S. Citizen or permanent resident relative. These categories are:  – First: Unmarried children over 21 of U.S. Citizens – Second, part A: Spouses and minor children of Permanent Residents – Second, part B: Unmarried children over 21 of Permanent Residents – Third: Married children of U.S. Citizens – Fourth: Brothers and sisters of U.S. Citizens

The same can be said for employment-based applications. Immigration has prioritized these applications as well, in terms of who they believe are a priority:  – First: Priority workers  – Second: Professionals with Advanced Degrees or Persons of Exceptional Ability  – Third: Skilled workers, professionals, and other workers  – Fourth: Special Immigrants  – Fifth: Employment creation

The Visa Bulletin, published each month, lists the dates by which a person waiting their turn may be eligible to file for their green card. This helps people waiting to apply for permanent residence get a general idea of when they can apply and how long they may have to wait. Until today, a person waiting to apply for permanent residence would look at the chart for the current month, find their category, then look at the date published. If their relative or employer filed for them before that date, then they could move forward with their application for permanent residence.

However, starting today, Immigration has changed the way they are accepting all applications based on these wait times. There are now two charts that should be considered.

Start by looking at the (A) chart called Application Final Action Dates. 1.You should start by finding your priority date. That is typically the date your relative or employer began the process of filing for you. 2.Looking at the Visa Bulletin, you should find the right set of charts (family-sponsored or employment-based). 3.Find the appropriate priority category (first, second, third, fourth, or fifth) in the chart. 4.Check to make sure you are looking at the right country of birth (only China, India, Mexico and the Philippines have specific dates that are different than the rest of the world). 5.If the date listed is “C” (meaning that the category is current and that it applies to everyone) or your priority date is before that date, then your case can be approved. Then look at the (B) chart called Dates for Filing.

1.Find the appropriate priority category (first, second, third, fourth, or fifth) in the chart. 2.Check to make sure you are looking at the right country of birth (only China, India, Mexico and the Philippines have specific dates that are different than the rest of the world). 3.If the date listed is “C” (meaning that the category is current and that everyone can apply) or your priority date is before that date, then your case can be filed. The important difference is that, now the date when you can file can be drastically different than the date by which you can be approved. In some cases, you may be able to file a year early or more. For this month, this process is the same whether you are outside or inside the country, but that may change month to month.

For additional information on the impact of these changes to filing for permanent residence, or to have an immigration attorney review your particular case to see if you have been affected, please contact the Immigration Division at Shapiro Law Group, PC. By Vivian Salib Crowell, Esq.

Green Card Lottery Begins Today!

The United States has long been known as a “melting pot” of nationalities, cultures, and ethnicities. In order to keep the United States diverse, Congress enacted a program called the “Diversity Immigrant Visa Program.” This program makes up to 50,000 immigrant visas (green cards) each year to random applicants from across the world. The eligible countries are determined each year from countries with particularly low immigration rates to the United States. Applicants are accepted 1-2 years ahead of the drawing; in other words, applicants selected from this year’s applications may be eligible to begin filing for their green cards from October 2016 – September 2017.

Applications for the random drawing will start being accepted today at 12:00 PM (EST) through November 3, 2015 at 12:00 PM (EST). This time window is extremely important, as the website only accepts applications during this narrow window. Each applicant is only allowed to apply once, and any duplicate applications will be completely disqualified, so submitting a proper application the first time is critical.

Determining your eligibility can be tricky. There are a number of factors that must be taken into account before deciding if you can actually win. To start, because the Diversity Visa program is intended to diversity the United States, natives of certain countries with high immigration rates are disqualified from even applying. These countries include: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

However, just because you are a native of one of the above countries doesn’t mean you are completely ineligible. There are certain exceptions that may apply – for example, if your spouse was born in an eligible country, you may be eligible by claiming your spouse’s country of birth. In addition, if you were born in an ineligible country but neither of your parents were born there or were legally resident at the time of your birth, you may be able to use the country of your parents’ birth.

In addition, there is an educational or work experience requirement that must be met for each lead applicant. More specifically, the lead applicant must have a high-school degree or two years of work experience in a qualifying field of employment. However, a high school degree in certain countries are not necessarily the same as a high school degree in the United States – further analysis may be required to be sure you are qualified. More problematically, the list of jobs that qualify for work experience can be difficult to navigate.

Most interestingly, if you have more than one person in your family that qualifies, you may be eligible to submit more than one application – giving you more than one chance to win. However, you have to be careful to know which people to include in each application so as to avoid accidentally disqualifying yourself. For example, failing to include the right dependents in your application – including your spouse and the appropriate children – can disqualify you as well.

Without knowing for certain if you meet all the requirements, the Diversity Visa Lottery process can be confusing and potentially dangerous process if you are already out of status in the United States. Don’t be someone who manages to be one of the lucky few who “wins” the lottery, only to discover during the green card interview that one minor error on the application caused your disqualification. Even improperly formatting your photograph may result in your disqualification.

There are a number of fraudulent, or fake websites that exist to confuse the issue even more. Be sure that, if you apply for the Diversity Visa Lottery program, you only use a website that belongs to the United States Department of State. Other programs that offer to file your application for you, like visa consultants or visa agents, can potentially take your money and your personal identity. For example, many websites offer to file your application for you but claim there is a filing fee, which is false – the United States government does not require a fee to filing the application. Other websites will send emails claiming to be the Department of State and notifying you of your selection for the program. However, the United States government will never email you to notify you of your selection – you must visit the lottery website after May 3, 2016 to enter your confirmation number and determine yourself if you are eligible.

If you seek help, only seek the help of a licensed attorney. And if you are unsure about your eligibility, please feel free to contact the Immigration Department at Shapiro Law Group, PC.

By Vivian Salib Crowell, Esq.