Vaughn-Martel Law Blog

Wednesday, May 21, 2014

Digital Life After Death: What Happens To One’s Social Media and Online Storage Accounts After Death?

With an estimated 1.23 billion active monthly Facebook users at the end of 2013, nearly 1 out of every 6 people on planet earth have at least some identity or presence on line.  In the United States, nearly 1 out of 3 people review or update their Facebook account each day!  We share photos, vacation highlights, accomplishments, bad news, political commentary, cat videos, and we give and receive congratulations and support.  In some ways, at least some part of us 'exists' on line.

Have you ever wondered what happens to your online presence when you pass away?   For example, what happens to your Facebook Timeline, your LinkedIn account, and all of the photos you have stored and shared on Shutterfly?  Like your personal effects and bank accounts, you have the power to choose who should have access to your online accounts after your death using carefully drafted estate planning documents, subject, of course, to the terms and conditions of any particular website.  When I draft a Will or a Trust for a client, I include provisions naming a person or persons my client would like to have access to his or her digital assets after death.

Most websites have terms and conditions that you have agreed to in order to participate in the forum, and you should read them.  Many websites will honor your wishes if you have included wording in your Will or Trust regarding digital account but, as mentioned previously, some websites will have their own procedures that will trump the instructions you leave in your estate planning documents.  It is important to acquaint yourself with the terms and conditions of all websites you are utilizing and take appropriate measures to ensure that the digital assets stored on that website would not be lost in the event of your unexpected demise.  Consider leaving a list of websites and corresponding user names and passwords for your personal representative with your Will.

Just as one example, Facebook has a clear policy for how it handles the accounts of deceased users.  Facebook will memorialize the user’s Timeline upon notification of the death of the user.  The request to memorialize the account can be made by anyone who knew the deceased user.  You can submit a Facebook Memorialization Request by clicking here.  Once the death is confirmed by Facebook, the account will become memorialized, meaning that the deceased user cannot obtain new friends, users will not be able to post to the deceased user’s Timeline, and other personal information will be removed.

This is an ever-evolving area of the law, as are most internet-related issues.  As users of the fast-paced technology, it is our responsibility to review the policies of the sites we use and make appropriate provisions to protect ourselves both during life and even after death.  Be sure to review the terms and conditions as well as the personal settings of every social media website and digital storage website you utilize.  A well written estate plan along with a list of sites and login information will go a long way in the event your personal representative ever has to start picking up the pieces of your digital estate.  If you have an estate plan, review it to see whether there are provisions regarding your digital estate or websites that you use regularly.  If there are no provisions or if it has been more than a three years since your estate plan was drafted, make an appointment with an estate planning attorney to discuss your options and to update your plan.

Emily Towne McNeil is an estate planning and probate attorney at the Boston law firm of Vaughn-Martel Law.


Tuesday, November 12, 2013

Vaughn-Martel Law Attorneys Walsh and McNeil Make Boston Magazine's 2013 List of 'Rising Stars'

Congratulations to Attorneys Jessica M. Walsh and Emily Towne McNeil, who were both recognized as 'Rising Stars' by Boston Magazine in its 2013 list of Super Lawyers.


Read more . . .


Tuesday, September 10, 2013

A Brief Overview of Recent Changes to the Massachusetts Child Support Guidelines

Calculating Child SupportOn August 1, 2013, updated Massachusetts Child Support Guidelines went into effect, and will remain in effect for the next four years.  The child support guidelines provide instruction and guidance to both recipients and payors of child support.  The new guidelines clarify the laws regarding support orders and modifications, and provide guidance to the courts when creating, modifying, and enforcing child support orders and obligations.

Additionally, there exists a Child Support Guidelines Worksheet, available online, which parents and courts use to determine the appropriate amount of child support on a case by case basis.  The following is a brief overview of the important changes to the guidelines.

DETERMINING INCOME

  • Income derived from a means-tested public assistance program (for example, TAFDC, SNAP and SSI benefits) shall not be counted as income for either party.
  • Guidelines now give judges discretion to consider income from second jobs and overtime income even if it was earned prior to the entry of the order.
  • When a judge is attributing income to a parent, the availability of employment at the attributed income level must now be considered. This revision accounts for the realities of the job market.

CHANGES TO THE CHILD SUPPORT FORMULA

  • There is a new formula that applies when parenting time is less than equal (each parent has the child 50% of the time) but more than the common split of two thirds to one third. There is now a formula for calculating child support when the non-custodial parent has the child between 1/3 and ½ of the time. This allows for the payor parent to pay less if he or she has the child more than 1/3 of the time, and to pay more if he or she has the child less than 1/3 of the time. This change accounts for the fact that a non-custodial parent may still have the child for a large portion of the week and accounts for the fact that, in some instances, the non-custodial parent has very limited parenting time with the child and may only see the child a few hours per week.
  • Clarification is given as to how child support should be allocated between the parents when their combined income exceeds $250,000.00, including a statement that the guidelines should be applied on the first $250,000.00, and the support obligation for the portion of combined income that exceeds $250,000.00 shall be in the discretion of the court.

DEVIATIONS FROM CHILD SUPPORT GUIDELINES

  • Circumstances justifying a deviation are expanded to include extraordinary health insurance expenses, child care costs that are disproportionate to income, or when a parent is providing less than one-third parenting time

MODIFICATIONS

  • Regarding modifications, orders may no longer be modified solely because the existing order is at least three years old. Additionally, if the support is going through DOR and the entry of the last order was within the last three years, in order to modify, the requesting party must demonstrate a substantial change in circumstances IN ADDITION TO an inconsistency.

Please contact an experienced family law attorney in your area if you believe, based on the modifications to the child support guidelines, your child support order needs to be reexamined for accuracy and appropriateness.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific child support orders, or wish to speak to an attorney about a family law matter, we invite you to contact us.


Monday, August 26, 2013

Boston Landlords: Only Days Remain to Comply With New "Rental Inspection and Registration" Ordinance

Beginning August 31, 2013, landlords all over the City of Boston must register their rental units with the Inspectional Services Department, and comply with a mandated inspection and registration schedule.

Previously, most rental units in Boston were inspected only in the event of a housing complaint or in the midst of a tenant-landlord dispute over housing or safety conditions.  Under the recently-approved ordinance, every private rental unit in Boston must be registered by August 31, 2013.  The program was to begin August 1, but landlords will now have until Aug. 31, 2013, in order to come into compliance with the ordinance, after city officials decided to extend the deadline, according to the Boston Inspectional Services Department.

City of Boston Code Ordinance CBC 9-1.3 will require all private rental units to be registered on an annual basis and inspections will be conducted for non-exempt units on a 5-year cycle starting January 2014.  Relatively few rental units will qualify as "exempt" under the new law, but publicly-owned properties and owner-occupied residences with fewer than six units will be exempt.

Boston landlords should assume that they are non-exempt from the new law and act accordingly.  Non-compliant landlords will be subject to a fine of $300.00 per month, and will be assessed 1 point in a new "chronic offender" point system.

The full text of the new Rental Inspection Program is available for download and viewing.  The City has issued an outline of Homeowner Landlord Responsibilities as well as a page on Rental Inspection Program Frequently Asked Questions.  Homeowner landlords can register online, by mail, or in person at Inspectional Services Department, 1010 Massachusetts Avenue, 5th Floor, Boston, Massachusetts, 20118.

According to a recent article on Boston.com, only about 20% of the total estimated rental units in Boston have registered for the program.

Since the registration period began on May 1, only about 26,150 units have been registered with the city, said department spokeswoman Lisa Timberlake. That represents less than 20 percent of the estimated 140,000 total units that are required to register.

Landlords who fail to register will be subject to fines and other action from the city, officials said.

But, the city will likely use discretion in deciding whether to discipline landlords, according to Brian Swett, Boston’s Chief of Environment and Energy.

“We’ll have to make an assessment as we get closer to Aug. 31,” he said. “If there are folks who are willfully not registering their properties that’s different from someone who hasn’t been informed about this yet by our outreach.”

“We did anticipate that this would take some time,” added Swett. “To start from zero and get to as close to 140,000 as we can – that’s going to take some time. We never thought we’d be at 100 percent right away.”

He said that registrations have picked up significantly in recent weeks as word about the new program and its deadlines continues to spread.

About the Firm.  Vaughn-Martel Law represents both landlords and tenants throughout Massachusetts in landlord compliance, tenancy creation, eviction, and housing dispute resolution and litigation. If you have a question about the new ordinance, compliance, and the rights and obligations landlords or tenants in Massachusetts, we invite you to contact us.


Thursday, August 22, 2013

New Rules Will Simplify Certain Uncontested Family Court Matters

This summer, the Massachusetts Probate and Family Court announced changes to Rule 412 of the Supplemental Rules of the Probate and Family Court.  These changes went into effect on August 1, 2013.  The changes to Rule 412 allow parties to jointly request modification of a judgment or order of the Probate and Family Court where:

  1. the parties are in agreement;
  2. the agreement is in writing; and
  3. all other requirements of the Rules are met.

Following this procedure - and assuming that the parties' file is otherwise in order - will allow the parties to be granted a modification without having to appear in court.

Previously, Rule 412 addressed only child support judgment modifications, and if the parties were in agreement regarding a modification of child support, they were required to file a joint petition for modification of child support.  The parties would not be required to appear in court.

Rule 412 has now been expanded to allow parties to modify temporary orders in addition to final judgments, and to modify judgments or orders other than child support using this procedure as well.  These changes will allow the courts to handle more cases administratively and help to alleviate backed up clerk’s offices in the probate and family courts throughout the state.

If you are interested in modifying a judgment or order of the Probate and Family Court with the assent of the other party, contact a local family law attorney to learn about your options and the newly simplified procedure.

A complete copy of Massachusetts Supplemental Probate and Family Court Rule 412: Uncontested Actions to Modify a Judgment or Order can be read in the link provided.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific parenting plan, marital settlement agreement, or court order, or wish to speak to an attorney about effectively parenting with a former spouse or partner, we invite you to contact us.


Sunday, August 18, 2013

Two Months After SCOTUS's Landmark DOMA Ruling: Who is Married?

Section 2 of DOMA remains fully intact, and still permits individual states to disregard same-sex marriages.  Many experts are left scratching their heads over the question of how the federal government will ultimately decide whether or not a couple is married.  So will the federal government follow a "place of residency" rule or a "place of ceremony" rule?


Read more . . .


Thursday, May 09, 2013

A House of Cards: Consumer Financial Protection Bureau Cracks Down on Debt Settlement Industry

CreditCardDominos_43_0As reported by USA Today ("N.Y. Mission Debt Settlement Firm Charged With Fraud"), the Consumer Financial Protection Bureau has charged the owner of Mission Settlement Agency and three of its employees with fraud and conspiracy.  The article explains:

"As alleged, Mission preyed upon the financial desperation of people around the country who — like so many ordinary Americans — were simply struggling to pay down their debts after the financial downturn," said Manhattan U.S. Attorney Preet Bharara.

"Most of Mission's customers failed to achieve the reduction in debt that the defendants had promised them, and some of them suffered further declines in their credit ratings, were sued by their creditors and/or fell into bankruptcy," the indictment alleges.

The CFPB alleges that the owner of the debt settlement company used its customers' fees to pay the expenses of his family's popular Brooklyn nightclub, luxury car leases, and somewhat ironically, credit card bills.  The article points out that this case,

represents the first criminal charges stemming from a referral by the Consumer Financial Protection Bureau, the federal watchdog agency created in response to the 2007 national financial crisis.

Sadly, there is nothing unique or shocking about this story.  In fact, the "business model" employed by Mission Settlement Agency is used throughout the country by countless so-called "debt settlement companies".  These debt settlement companies prey on often desperate consumers who are overwhelmed by their level of debt, who are being threatened and harassed by debt collectors, and who are unable to keep up with the minimum payments, late fees, and charges on their debt.  Consumers are typically told to stop making payments to creditors and to make immediate payments to the debt settlement company instead.  In most cases, the majority of payments made by a consumer go directly toward the debt settlement company's fees, and not to any creditor.  The simple fact is that, when a consumer fails to pay a creditor for a period of time, that creditor will file suit in court against the debtor.  At that point, the debt settlement agency is nowhere to be found and happy to point out that they are not attorneys.

A copy of the three-count criminal indictment can be viewed here.

Our office has recovered thousands of dollars on behalf of consumers who have fallen prey to these debt settlement schemes.  Typically, a client will have paid large sums of money to debt settlement companies, only to have to pay additional sums of money to retain bankruptcy counsel or consumer debt defense counsel to deal with creditors when the illusive promise of settlement fails.  The truth is that there is no quick fix in dealing with debt issues, and only a licensed attorney can advocate for a consumer in court when creditors or debt collection companies enforce debt obligations in court - which they all will.

Vaughn-Martel Law advocates for consumers both in and out of court.  Our consumer debt attorneys have assisted debtors throughout Massachusetts in resolving their debt obligations one debt at a time, with no tricks, gimmicks, or quick fixes.  We have saved our clients hundreds of thousands of dollars by employing pre-suit debt resolution strategies, and aggressively defending our clients when creditors  do file suit.


Friday, April 19, 2013

Federal Children's Passport Issuance Alert Program: What You Need to Know!

child on a planeWHAT IS THE CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM, OR "PASSPORT LOOKOUT SYSTEM"?

The Children’s Passport Issuance Alert Program ("CPIAP") is administered by the State Department and allows parents to register their U.S. citizen children under the age of 18 in the Department’s Passport Lookout System.  If a passport application is submitted for a child who is registered in CPIAP, the Department contacts and alerts a parent or parents that there are possible plans for international travel with the minor child at issue.  The alert system gives all United States passport agencies as well as United States embassies and consulates abroad an alert if a parent or guardian registers an objection to the issuance of a passport for his or her child.

WHO MAY BENEFIT FROM THE PROGRAM?

If you are a parent that is divorced from your child(ren)’s other parent, a parent that is separated from your child(ren)’s other parent, or a parent who is concerned that your spouse may attempt to take your child(ren) out of the country without your knowledge, the State Department’s CPIAP "Passport Lookout System" may be an invaluable resource for you.  CPIAP provides information to a parent or court when a passport application is submitted on behalf of a registered child.

HOW TO REGISTER THE CHILD.

In order to avail the benefits of the CPIAP, the child must be a U.S. Citizen under the age of 18 and must be registered by filing a written request with the State Department.  It is not necessary for a parent to have any specific custodial rights to the child in order to fill out the request.  The Passport Lookout System Child Registration Form can be downloaded on the State Department’s website at http://www.state.gov/documents/organization/80112.pdf.

Besides a child’s parent or guardian, this form may also be filed on behalf of a child by law enforcement, a court, or someone acting on behalf of a parent.

WHAT ARE THE BENEFITS OF REGISTRATION?

The CPIAP’s mission is to prevent international parental child abduction.  If a child is registered, all U.S. passport agencies and U.S. embassies and consulates abroad are given an alert on the registered child’s name.  If a passport application is submitted for a child who is registered in the CPIAP, the Department contacts the parent or parents of the child, giving the parent advance warning of the possibility the other parent is planning on traveling internationally with the child.

If the child you seek to register already has a passport, the program will notify you if Passport Services receives an application for renewal of the passport. The Department may not revoke a passport that has already been issued to the child.

WHAT HAPPENS IF A PARENT ATTEMPTS TO OBTAIN OR RENEW A PASSPORT FOR THE REGISTERED CHILD?

After receiving notice of the passport request from the CPIAP, the parent will have about 30 days to consent or object to issuance or renewal of the passport for the child.  If the parent who applied for the passport for the child can demonstrate that he or she has sole authority to apply for the passport (for example, by providing a court order indicating he or she has sole custody of the child or a court order specifically authorizing the applicant parent to travel with the child) then the passport may be issued at any time after application regardless of obtaining consent from the other parent.

About the Firm.  Vaughn-Martel Law represents parents and children throughout Massachusetts in divorce, child custody, modifications, co-parenting, and all aspects of family creation and family law.  If you have a question about your specific parenting plan, marital settlement agreement, or court order, or wish to speak to an attorney about effectively parenting with a former spouse or partner, we invite you to contact us.


Tuesday, April 02, 2013

Amid Constitutional Challenge, A Chance For Same-Sex Couples to Recoup Overpayments in Taxes

April-15Last week, the United States Supreme Court heard two very important cases concerning the federal rights and benefits of LGBT individuals throughout the country.  In particular, the case of Windsor v. United States presents a very real opportunity for the Supreme Court to consider and possibly to strike down the Federal Defense of Marriage Act (DOMA).  The whole country is intently watching and waiting, and the outcome of the Proposition 8 case and the DOMA case will directly impact the LGBT community, particularly the federal rights of married same-sex couples.

DOMA Has Resulted in a Higher Tax Burden for Same-Sex Married Couples.

Since 1996, DOMA, the federal law which defines marriage as the legal union of one man and one woman, has resulted in the non-recognition of same-sex marriage for federal purposes.  As a result, many of the benefits afforded to opposite-sex married couples are denied to their same-sex counterparts.  Some of these benefits include Social Security Administration benefits, marital estate tax exemption, tax treatment of health insurance premiums, and most important for the purposes of this article, the filing of joint tax returns.

If DOMA is Held to be Unconstitutional, Same-Sex Married Couples May Be Entitled to Amend Previous Tax Returns to Obtain Refunds for Overpayments Made Under the Unlawful Act.

If DOMA is struck down by the Court, an outcome which appears to be at least somewhat likely, same-sex married couples who were excluded from filing joint income tax returns will have the ability to file amended income tax returns for the years they were legally married but did not have the ability to file jointly due to DOMA.

However, because federal income tax returns are only amendable for three years (or two years from the date the tax was paid), same-sex couples will lose their right to amend returns outside the time limitation unless additional steps are taken to protect the ability to amend in the future.

Same-Sex Couples Should Consider Filing a "Protective Claim" Now to Preserve the Right to Amend Returns Beyond the IRS's 3-Year Limit.

Because the IRS limits a taxpayer's right to amend previous returns to three years, one recommended solution to this problem is the filing of a “Protective Claim for Refund”.  Filing a Protective Claim now allows a taxpayer to file an amended return at some future date when the refund resulting from that amended return is contingent on some future event (such as the Court’s decision in the DOMA case).

For example, a taxpayer who believes she would be entitled to an additional refund for tax year 2009 may file a Protective Claim at any point prior to April 15, 2013, thus preserving her right to amend her 2009 tax return in the event that DOMA is overturned later this year.  As an article in The Tax Advisor explained in December, 2012:

[Tax preparers] should discuss with their same-sex married clients whether to file protective individual income tax refund claims with the IRS using the married-filing-jointly status and other tax benefits that are currently available to opposite-sex married taxpayers.

A protective refund claim can be submitted as a formal written claim or as an amended return on Form 1040X, Amended U.S. Individual Income Tax Return. A protective claim is filed by a taxpayer when the right to the refund is contingent upon the finalization of litigation proceedings such as the constitutionality of DOMA. A protective refund is filed for a taxpayer when the resolution of the litigation will extend beyond the statute of limitation for filing an accurate amended tax return (IRS Publication 556, Examination of Returns, Appeal Rights, and Claims for Refund, p. 14 (2008)).

The same-sex couple must be legally married under state law at the end of the year for which the amended return for the protective claim is filed. A document, such as a marriage certificate, confirming the marriage should be attached to the amended return.

In addition to the above article, Internal Revenue Service Publication 556 provides a helpful checklist for sames-sex couples who may be entitled to a tax refund if DOMA is overturned.  IRS Publication 556 reads, in relevant part, as follows:

Protective claim for refund.   If your right to a refund is contingent on future events and may not be determinable until after the time period for filing a claim for refund expires, you can file a protective claim for refund. A protective claim can be either a formal claim or an amended return for credit or refund. Protective claims are often based on current litigation or expected changes in the tax law, other legislation, or regulations. A protective claim preserves your right to claim a refund when the contingency is resolved. A protective claim does not have to state a particular dollar amount or demand an immediate refund. However, to be valid, a protective claim must:

  • Be in writing and be signed,
  • Include your name, address, social security number or individual taxpayer identification number, and other contact information,
  • Identify and describe the contingencies affecting the claim,
  • Clearly alert the IRS to the essential nature of the claim, and
  • Identify the specific year(s) for which a refund is sought.

Generally, the IRS will delay action on the protective claim until the contingency is resolved. Once the contingency is resolved, the IRS may obtain additional information necessary to process the claim and then either allow or disallow the claim.

Mail your protective claim for refund to the address listed in the instructions for Form 1040X, under Where To File.

Taxpayers who believe a Protective Claim for Refund may be beneficial should consult his or her tax adviser to discuss the possible advantages and disadvantages to filing a Protective Claim for Refund prior to April 15, 2013.


Tuesday, February 26, 2013

Social Security Benefits and DOMA: Know Your Rights, Protect Your Benefits

IRSAs we all know, the Defense of Marriage Act disqualifies same-sex married couples from the innumerable federal benefits of marriage, including social security benefits.  Two federal lawsuits are challenging the legality of DOMA, one of which is presently before the United States Supreme Court.

Boston-based GLAD (Gay & Lesbian Advocates & Defenders) has created a comprehensive resource for same-sex couples outlining the additional benefits that same-sex couples and their children would otherwise be entitled to in the absence of DOMA.  As GLAD's publication, "Social Security Benefits And the Defense of Marriage Act: Can I Do Anything Now to Preserve My Rights? YES", explains:

In the Social Security context, DOMA means that a person married to someone of the same sex cannot claim the Social Security benefits that might be due to a spouse, including:

• the spousal retirement benefit;
• the spousal disability benefit;
• the lump-sum death benefit; and
• the survivor benefit.

DOMA also can limit a child’s access to Social Security benefits. For example, when a married working parent dies, DOMA means that a child of the marriage may be denied benefits unless the worker is that child’s birth or adoptive parent or the family lives in a State where the child could inherit from that parent under the State’s intestacy law (this should include all States that permit same-sex couples to marry and Washington, D.C. as well as States that recognize marriages of same-sex couples from other states).

Download the Publication:  GLAD Social Security Benefits and DOMA

GLAD's publication also describes what same-sex couples can do now in order to preserve their access to social security benefits in the event that DOMA is either repealed or deemed unconstitutional, as many expect that it will be.  In some instances, the law mandates that an applicant apply for social security benefits within a specific time frame, for example within 2 years of the death of a spouse.  Under some circumstances, GLAD explains, it may make sense in certain circumstances to apply for benefits now - expecting your claim to be denied - in order to preserve important rights of appeal in the event that DOMA is overturned.

If you are in a position to access benefits under social security, and you believe that your right to benefits may be impacted by DOMA, reach out to your legal and tax professional.  GLAD encourages individuals to reach out to them with questions on their InfoLine: (800) 455-GLAD.

Vaughn-Martel Law also invites concerned individuals to contact our own Emily Towne McNeil to discuss your estate planning, including social security benefits to which you believe you may be entitled or how to preserve them in the event of a repeal of DOMA.


Sunday, February 24, 2013

Vaughn-Martel Law's Jessica M. Walsh Named to Massachusetts Domestic and Sexual Violence Council

Earlier this month, Attorney Jessica M. Walsh was voted into membership of the Massachusetts Domestic and Sexual Violence Council ("DSVC").  The DSVC is a Boston-based organization comprised of experienced lawyers and advocates, hailing from various law firms, legal service organizations, and community support centers in Massachusetts.

The DSVC works to promote awareness of domestic and sexual violence and assist the Massachusetts legal community in working appropriately and successfully with survivors.  DSVC members are chosen because they possess unique knowledge and expertise in working with survivors of domestic violence and sexual assault, specifically in the legal context.

Vaughn-Martel Law congratulates and thanks Attorney Walsh for her continued advocacy on behalf of survivors of sexual assault and domestic violence.


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Vaughn-Martel Law represents clients in Suffolk County, Middlesex County, Essex County, Norfolk County, Plymouth County, Bristol County, Worcester County, Hampden County, and Franklin County. In Suffolk County MA, our Boston divorce attorneys and other attorneys can represent you if you reside in Allston MA 02134, Boston MA, East Boston MA 02128, Back Bay MA 02116, Beacon Hill MA 02114, Brighton MA 02135, Revere MA 02151, Cambridge MA 02139, Cambridge MA 02140, Charlestown MA 02129, Jamaica Plain MA 02130, Winthrop MA 02152, Roxbury MA 02118, Roxbury Mission Hill MA 02120, and Chelsea MA 02150.

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