Rhode Island Divorce Tips by Attorney Chris Pearsall

Rhode Island Divorce Lawyers - Be Careful that a Lawyer doesn't Tell You Exactly What you Want to Hear!

As a Rhode Island Lawyer focusing my practice exclusively in the area of Rhode Island Divorce and Family Law, I have learned that when people come in for a consultation they want to tell me their story and they want to be told exactly what they want to hear. 

Yes, despite the fact that every divorce lawyer may not portray a realistic scenario to the potential client, clients need to realize that a lawyer may tell them exactly what they want to hear.

If you skimmed that last paragraph which was only one sentence long and you have already forgotten it, then . . . my dear reader . . .WAKE UP!

I'll repeat it because it is so crucial and I'll even be more blunt.  Some lawyers . . . to get your business . . . will tell you exactly what you want to hear!  They may give you results that are not realistic not just for your divorce case but for ANY divorce case.

Lawyers are businesspeople and they get hit by economic times too.  Without clients they don't have income.  Without income, many of them can't afford that cushy little porshe or mercedes they drive.  Without income,  they may have to consider making a late payment on their house or their summer home.  Without clients, the lifestyle a lawyer may have developed for him or herself doesn't last long.  So the lawyer needs to bring in clients. 

That may be you!  Wouldn't it be nice to go into a divorce lawyer and give him or her a quick snapshot of your life with your spouse and kids and then he or she tells you how everything is going to be fine, that they've dealt with this scenario a million times before and that if you hire them, then they will deal with all that anxiety for you and it will be over before you know it.  Imagine a lawyer telling you that all this stress you are feeling right now is needless because the lawyer is going to get you a great divorce settlement and that you should let him or her deal with it and your troubles will be over.

Now, here you are all comfortable and feeling that this lawyer is going to take care of all your divorce troubles when he tells you the cost.  If you are especially stressed out, are you likely to agree to provide him or her with a $3,500 retainer at an hourly rate of $250 per hour?  Most people will find a way to do so because the lawyer is offering a solution to divorce stress and anxiety in your personal life.  What is more painful to you?  The stress and anxiety at home or parting with a few thousand dollars.  In many instances the stress outweighs the money. 

Some, but not all lawyers will do this.  Let me give you an example that came up recently but I'll change the players and the issue itself to protect the privacy of the individual involved.

Clyde met with me for a consultation.  Clyde wanted to divorce his wife Cassie.  Clyde and Cassie had a fight and Cassie told Clyde that he could go ahead and divorce her because she'd be set for life.  Clyde didn't know what Cassie was talking about so he asked her.  "Well", Cassie snapped, "I've already been to a lawyer and he already explained to me that you're going to have to pay me alimony and I'll be doing just great and you'll be broke."  Clyde looked at her in disbelief. 

"Really?" Clyde stated in disbelief.  "Yes.", Cassie answered.  The lawyer told me that you'll have to pay me alimony "indefinitely".  Clyde answered, "I don't think that's true Cassie.  You may want to check with another lawyer."

Cassie got angrier.  "I don't need you telling me what to do.  I've already seen a lawyer and I know what is going on and my lawyer said you're going to be paying me alimony FOREVER!"

"I don't think that's how it works Cassie. So you may want to check with another Rhode Island divorce lawyer."  Clyde was urging her now.

"Nope.  I like this guy and he's told me exactly how it's going to go for you and I like that just fine.  So go ahead and serve me with the papers because I don't like the way you're handling the money as it is."

In this situation it isn't hard to see what has happened.  Cassie went to a lawyer for what was probably a free consultation and she told the lawyer what was probably only her side of the story.  The economy is hurting and the attorney figured out what Cassie wanted to hear in order to hire him as her attorney.  So the attorney painted Cassie a very rosy picture and told her exactly what she wanted to hear in order to get her as his divorce client.

Only too often this is the rule rather than the exception.

It is best to remember the old adage.  If something sounds too good to be true. . . it probably is!  The easiest way to get a divorce client is to tell him or her what they want to hear instead of being honest about the process and what may or may not occur.

If a lawyer is pressing you to engage him or her as your divorce lawyer, usually this is a warning sign.  If you don't hear a few things that put you on edge during a consultation because they cause you to worry a little, this is another warning sign.  If you hear everything you want to hear AND you are pressured into retaining the lawyer's services quickly this is a warning sign as well.

On rare occasions when there is an uncontested divorce or when the parties have good respect and communication with each other, then it is reasonable to hear everything you want to hear from the lawyer.  Otherwise, if the lawyer doesn't raise some possible issues that give you cause for concern, then you should consider whether the lawyer is just telling you what you want to hear just to get your business, especially if the lawyer stands to gain a substantial hourly rate off the arrangement.

In the end, be careful.  If you hear exactly what you want to hear when there could be issues of alimony, child support, visitation, placement, retirement plans and real estate division, then you should shop around by selecting lawyers who are known to routinely practice divorce law before the Rhode Island Family Courts.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Now

Rhode Island's Premiere Legal Divorce Coach !!

Copyright 2009.  Christopher A. Pearsall, Esquire
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers

A Rhode Island Divorce Lawyer's Second Tip for the Alimony Language in a Marital Settlement Agreement or Family Court Decision!

This Rhode Island divorce tip article is a follow-up to my first tip article which may be found at http://www.rhodeislanddivorcetips.com/2008/11/rhode-island-divorce-lawyers-tip-on-alimony-language.html

This first tip article is helpful, if not essential, to helping you understand rehabilitative alimony in Rhode Island.  Therefore I recommend that you read my first alimony tip article if you do not already know how Rhode Island law treats alimony in general.

Lanuguage is crucial in both Rhode Island Settlement Agreements and especially in the Rhode Island divorce proceedings when it comes to alimony awards and alimony waivers.

Whether you are representing yourself or you have a Rhode Island lawyer to represent you in your divorce proceeding, it is best to be vigilant when it comes to the language used by you, your lawyer and even the judge.  In this divorce tip article the crucial word you should focus on is "non-modifiable."

Leaving out the word "non-modifiable" in your Marital Settlement Agreement or failing to clarify to the judge a request for the court's order to include the word "non-modifiable" could lead to hazardous consequences.

Consider this Rhode Island Divorce example about Mr. and Mrs. Lawyers:

Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of $400 per week for a period of three (3) years in their Marital Settlement Agreement and he has testified to that on the record of the court.  Mrs. Lawyers agrees that Mr. Lawyers' testimony is accurate and that $400 per week for three (3) year is precisely what they agreed to in their Marital Settlement Agreement.

Mrs. Lawyers testifies that she wants to waive alimony after that three (3) years has been paid, that she knows that this waiver would be permanent, and that she believes she will be able to sustain herself at the end of the three year period and therefore she would like the court to grant her permanent waiver.

At the end of the hearing, the Court orders the following:

Mrs. Lawyers is awarded weekly alimony of $400 per week for a period of three (3) years from Mr. Lawyers and that upon completion of the three (3) years Mrs. Lawyers' request for waiver of alimony is granted and she waives alimony permanently.

Do you notice that the word "non-modifiable" does not appear anywhere in the excerpt of the testimony above?  Do you notice that Mrs. Lawyers confirmed that it is "precisely what they agreed to" in their Marital Settlement Agreement? 

Let's assume this is correct and that the Marital Settlement Agreement doesn't contain any reference to alimony being "non-modifiable". 

Now, imagine that Mr. Lawyers secures a job that pays considerably more than his last job, that he becomes a partner in a very profitable business, that he creates a very successful invention, that Mrs. Lawyers gets into a tragic accident in the first year after their divorce which leaves her with brain damage which prevents her from proceeding with her attempts to rehabilitate herself and become self sustaining.

Choose any one of these events or any other event that you might think of that drastically affects the earnings or abilities of Mr. and Mrs. Lawyers within the three (3) years alimony is to be paid.

What is important here is what Mrs. Lawyers DID NOT agree to!

Even though Mrs. Lawyers waived alimony permanently after the three (3) years of payments, she DID NOT agree at any time that the alimony during those three (3) years would be non-modifiable.

If Mrs. Lawyers wanted to, she could retain a Rhode Island lawyer and once again return to court and request that the alimony she is receiving in those first three years be increased based upon either Mr. Lawyers' increase in his ability to pay more alimony and/or her own decrease in her ability to provide for herself over the long term as planned.

Though the agreement provided for $400 per week of alimony for a period of three years, this merely indicates to the court that this is an amount and timeframe that was either agreeable to the parties or ordered by the Rhode Island family court judge at the time of the divorce.  However, without the word "non-modifiable" before the word "alimony" this DOES NOT prevent Mrs. Lawyers from arguing that neither the parties or the court intended that it could not be modified during that three (3) year period if circumstances changed which warranted a modification of the amount of alimony.

What could this mean for Mr. Lawyers?

If either Mr. Lawyers or his Rhode Island attorney did not add that one word "non-modifiable" then Mr. Lawyers could end up paying $600, $900 or even $1,200 per week to Mrs. Lawyers for the remainder of the three (3) year period, if the Rhode Island family court judge found that Mrs. Lawyers had that need for such alimony and Mr. Lawyers was capable of paying that amount of alimony.

What monetary difference could this make to Mr. Lawyers?

Let's say the court found Mr. Lawyers had the ability to pay Mrs. Lawyers Rhode Island alimony in the amount of $900 per week for the last 28 weeks of the three (3) year alimony period that was agreed upon.  Let's also assume that the court held Mrs. Lawyers to the three (3) year period of alimony because she had validly waived alimony permanently after that three (3) year period of time.

Mr. Lawyers had agreed to pay $400 per week.  Mr. Lawyers is now ordered to pay an extra $500 per week for the last twenty-eight (28) weeks.  This now requires Mr. Lawyers to pay Mrs. Lawyers an extra $14,000 that he hadn't planned on.

To Mr. Lawyers and/or Mr. Lawyers' Rhode Island attorney, the omission of that single word . . . "non-modifiable" . . . just cost Mr. Lawyers $14,000. 

The words you use in your agreement and the words used in the order by the court are crucial.  Care should be taken in drafting any alimony provision in a Rhode Island Marital Settlement Agreement.  Care should also be taken to make sure that the word "non-modifiable" is used by the court in its order, if that is what is intended or expected by the parties.

In this example it was worth $14,000 to Mr. Lawyers.  That's one very costly word, don't you think?

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers

Rhode Island Divorce Lawyer's First Tip on Alimony Language in a Divorce Decision!

In a Rhode Island Divorce proceeding alimony must be awarded or denied by the Family Court Justice.

Since alimony under Rhode Island law is rehabilitative in nature, more often then not it is waived by one or both parties during the course for most Rhode Island divorce proceedings.  

Alimony that is rehabilitative is awarded by the court based upon the recipients need for financial support while he or she (1) re-establishes himself or herself in the working world with existing skills, (2) re-trains himself or herself with skills sufficient to sustain himself or herself with more modern skills, (3) is unable to care for himself or herself due to injuries, illnesses, handicaps or other circumstances that reasonably warrant the award of alimony for an extended period of time because one spouse is unable to care for himself or herself.

Alimony may be agreed to by the parties in circumstances when an award of rehabilitative alimony may be considered inevitable by the parties and/or their lawyers.  In other instances, a spouse may agree to pay rehabilitative alimony to the other spouse because their is an ability to make such a payment, even if the court would not normally award it, and one spouse wants to help the other spouse for a reasonable period of time until he or she regains a financial foothold on his or her own.

 
Whether alimony is by an award of the court or by an agreement of the parties, it is important that the language used by the court for any award of alimony is accurate pursuant to the agreement of the parties or as intended by the court.

The typical example is when an award of alimony is made for a specific amount of money for a specific period of time.  In this instance, clarity of language is essential!

Assume that Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of exactly $400 per week for a period of three (3) years.    Now let's assume that the alimony award is phrased as follows in both the Marital Settlement agreement of the parties as well as the Decision of the Court.  Nothing else is mentioned about alimony.

    "Defendant Mrs. Lawyers shall pay Mrs. Lawyers rehabilitative alimony of $400 per week for a period of three years."

Here is where accuracy in the language regarding the rehabilitative alimony provisions is crucial when it comes to clarifying the Marital Settlement Agreement and/or the Decision of the Court.  If this is the ONLY alimony that Mrs. Lawyers is to receive per their Marital Settlement Agreement, then Mrs. Lawyers MUST request to waive alimony permanently on the record of the court and Mr. Lawyers or his attorney must make sure that the decision of the court is clarified to state that Mrs. Lawyers waives alimony permanently after that three year period.  Either Mr. Lawyers or his attorney should do so even if it means clarifying to the judge BEFORE the hearing or trial is concluded that the award of alimony should involve a waiver of alimony permanently with the exception of that three year period.

Why is this so crucial in a Rhode Island divorce proceeding?

Well, in the first instance it is significant to Mr. Lawyers.  If there is no permanent waiver of alimony by Mrs. Lawyers other than that three year period, then Mrs. Lawyers has a viable legal argument that alimony WAS NOT expressly limited to that three year period of payments because she DID NOT waive alimony permanently.  Therefore, if things aren't going well for Mrs. Lawyers at that time and Mr. Lawyers still has the ability to pay continued alimony, then Mrs. Lawyers might decide to return to court for another 1, 3 or more years of alimony.

In the second instance, if Mr. Lawyers has hired a Rhode Island attorney to protect his interests in the divorce, then the attorney may have made a crucial mistake because he or she didn't make sure a permanent waiver of alimony was made by Mrs. Lawyers.  Unless there was a miscommunication or some other circumstance which explains why the Rhode Island attorney didn't insure the permanent waiver of alimony was made, then the Rhode Island attorney may find himself or herself on the receiving end of a legal malpractice claim.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers

What some RI Divorce Lawyers do that Judges may buy into!

A Rhode Island divorce can be traumatic even if you have a lawyer to help you through it.  There is no doubt that some people are more fragile than others.  Some women who have been "jilted" or "scorned" may be angry, experience denial or otherwise need counseling.  Some men who have been good providers and faithful for years may find that they need some mental health services to get through a difficult divorce when they just don't understand what went wrong in their marriage.

Though it is often difficult for most people to deal with divorce, some people seem to get through it just fine even if they are not the party who filed the divorce action.  Experiences are not only varied but they are interesting to note.

Yet what is not so interesting, nor enjoyable is when Rhode Island family law lawyers represent a client and help them to achieve what may be self-centered goals by helping them create a situation where none existed before.

An example is perhaps the best way to illustrate this.

Peter and Claudia have been married for 18 years.  They have no minor children and own a home together.  Peter files for divorce which Claudia claims is "out of the blue" and a "complete shock to her" even though Peter has approached her numerous times over the last year about how unhappy he was with their relationship.  Apparently Claudia attributed it to a mid-life crisis or something Peter would pass through.  Peter files for divorce.  Claudia had been working for the past ten (10) years and she is upset and depressed about the divorce filing.  Claudia takes time out of work and begins thinking and re-thinking why Peter would do this to her.  Claudia considers that there must be another woman.  Claudia also considers that Peter should have done more in the marriage to make it work or that he should have suggested counseling.  Claudia gets angry and then more upset as thoughts of the last 18 years run through her mind. 

This is not an uncommon thought process for a woman to go through. 

Claudia returns to work but her mind isn't on her work as it should be and her work just isn't up to par.  Claudia's boss mentions it and Claudia is now fearful for her job security.  Claudia consults and hires a divorce attorney who suggests that she go to a psychologist or a mental health counselor about her feelings.  Claudia takes the attorney's advice and goes to an individual and marriage counseling specialist.  The counselor confirms that Claudia is understandably depressed by the divorce situation.  Claudia feels better after going to the counselor and continues to see the counselor on a weekly basis.

Claudia is advised to take an extended leave from work to deal with her divorce and the emotions she is going through.  Claudia continues to go to counseling.  After a month or so Claudia's attorney starts arguing to the court that Claudia should receive alimony from Peter for at least two years.

Peter's attorney asks for the reason why Claudia should be awarded alimony.  Claudia's attorney is adamant that Claudia is now in a deep depression, has lost time out of work and is unable to do her work effectively as a result of Peter's filing for divorce.  Claudia's attorney argues to the judge that if he can prove Claudia's depression and that it resulted from the divorce filing then Claudia needs a recovery period and needs to rehabilitate her mental state to be able to function in the working world again.

Situational depression is a common side effect of most divorces.  However, to argue that alimony should be awarded because one party has an adverse reaction to a divorce filing is essentially punishing the payer spouse merely for filing for divorce because the relationship has failed.

Yet it has been argued by some Rhode Island divorce lawyers that rehabilitative alimony is justified for a spouse who gets situational depression as a result of the divorce filing itself.  Regrettably, some Rhode Island family court judges have bought into the argument if it is adamantly argued with the right tenor and the right documentation. 

An important tip is to note when the onset of the depression symptoms occurred.  Even if the depression relates directly to the breakdown of the marriage, the lack of a diagnosis of chronic depression by a psychologist, depression is not and should not reasonably a basis for rehabilitative alimony, especially for those spouses who were previously capable of earning an income and only incur difficulty as a result of the divorce filing or the breakdown of the relationship. 

A person's inability to cope with the actual legal proceeding that precipitates the alleged depression is not a reasonable basis for alimony.  No rehabilitation is needed to acquire more education or new skills or for entry into the workforce.  These are the fundamentals for rehabilitative alimony in Rhode Island and as such alimony based upon anything other than a longstanding chronic depression should be opposed strenuously.  Most judges will see this for what it is if you give evidence of the timing of the depression but be wary.  A difficult battle may be on the horizon if Alimony is a primary goal of your spouse.

Authored By:

  Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, A New Rhode Island Divorce Lawyer for a New Millenium

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers |  

RI Alimony - A Refresher by Rhode Island Divorce Attorney Christopher A. Pearsall

Alimony is an important concept to understand under Rhode Island law.

The Rhode Island media, in fact the media in general with television shows like, LA Law, Law and Order and articles about fat divorce settlements that include large alimony payments in the National Enquirer and even movies such as the comedy Liar, Liar leave Rhode Islanders with the notion that alimony is typical, commonplace and, in fact, an entitlement.  Unfortunately as the media creates its entertainment or information to sell more newspapers and raise its profitability can, and does, foster the idea in the minds of our citizenry that alimony really is an entitlement by a spouse and should be demanded by an aggrieved spouse who expects to suffer a decrease in his or her finances after a divorce if alimony is not granted by the court.

To gain a better understanding of Rhode Island alimony, you may wish to review the Rhode Island Domestic Relations section of the General Laws regarding Divorce & Separation, the more specific section relating to alimony appears below but since the laws are updating constantly it is always advisable to check your local library and any update services as well as the cases that interpret the Alimony statute before taking any action on your own.  The section below has been quoted, in pertinent part, from the Rhode Island Government Website as of this date.

[Exerpt]

To read the complete article on Rhode Island Alimony go to:

http://www.attorneypearsall.com/2008/05/ri-alimony.html

Also feel free to review my other articles on Rhode Island Alimony at:

http://www.rhodeislanddivorcetips.com/rhode_island_alimony_lawyer.html

http://www.christopherpearsall.com/alimony.rhode.island.family.courts.system.html

http://www.pearsall-law-associates.com/RhodeIslandDivorce-Alimony.html

 

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Get them Back to Work from a Rhode Island Divorce Lawyer

After eight (8) years as a Rhode Island lawyer dedicated to divorce and family law and another thirteen years in law here in Rhode Island, there is one situation that I have seen consistently and it almost always results in an unhappy husband paying alimony to his spouse.  The scenario goes pretty much like this one.

John and Melissa get married and have a child.  Melissa stays home to take care of the child because daycare expenses would be too costly and Melissa doesn't want her child raised by someone else.  Melissa promises that when the child gets into school full time that she will get a job or return to work to help with the family income.  The day comes when the child is in full time school and Melissa refuses to go back to work.  She wants to be able to bring the child to school, participate in school events during the day and pick the child up after school.  This situation often ends with a very upset husband and may eventually lead to the husband filing for divorce. 

John files for divorce and Melissa who has not been working for years seeks alimony and child support as the primary caregiver for the child.  John is upset.  John can't understand it.   He pulled the financial weight for his family for years and now when he wants to get out of the relationship he might be expected to pay for several more years. 

Why?   

Just because Melissa stayed home with their child and refused to return to work as she had agreed to help out their little family?

The answer is a resounding "NO".

It is not because Melissa broke her promise.

Practically speaking it is because John allowed her to stay home without contributing to the household income.

Many families are economical.  Attorneys understand that.  Yes, I understand that.  However, everyone should take into consideration that more than one out of every two marriages end in divorce.

When you have that kind of figure working against you then you have to consider the consequences if your marriage happens to be one of those that don't make it.

So what is the answer?  Families need two incomes even if it means the majority of one income goes to daycare for a while.  Women can earn as much as men these days and the old ways of the mother just staying home with the child are disappearing.  Frankly, they should be.

The answer to John's predicament and for many other men is to get the mother out and working for your financial future as soon as possible after the child is born.  It is not a right of a mother to stay home with the child any more than it is a right of the father not to pull his weight with diaper changing and late night feedings.

In the end, if John, or you, or your neighbor Tim, is one of those two marriages that isn't going to make it for 50 years or so and you end up in Rhode Island Divorce Court, then if you let the mother stay at home with the child then prepare to pay alimony for a few years.  At that juncture you have no one to blame.  You should be informed.  We balance the pros and cons on house buying.  We also do it on whether we take a job or not.  Why shouldn't we expect to do it with a marriage?  After all, isn't it one of the biggest decisions in our lives?!

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Issues Rhode Island Divorce Lawyers Face.

The Rhode Island Family Court deals with numerous issues in divorces. There are primary issues that judge's handle on a daily basis that everyone should be aware of.

In understanding these issues it is good to know that the area of Family Law grew out of Contract law. It's fairly easy to see how this occurred. Generally speaking, a man makes an offer to a woman to marry him and be his one and only wife. A woman accepts that offer and promises to marry the man from the offer that he has made her. Traditionally an engagement ring is given to the woman by the man to seal that promise and make it known to others. Later, sometimes with or without a ceremony, formal promises are exchanged between the man and the woman before an officiant. Wedding rings and vows (promises) are exchanged and a marriage certificate is signed by both parties and filed with the State.

It's not hard to see how family law, particularly divorce, grew out of contract law. Though contract law is very diverse and has taken on great depth, it's foundations mirror the marriage process. In a contract there are at least two parties. One party makes an offer. The other party accepts the offer. Usually a document memorializing the promises is signed by both parties, sometimes before witnesses.

Just as there are issues when one of the parties does not live up to their part of a contract. There are also issues that must be addressed when a divorce occurs because it is the division of a marriage contract.

Legal Issues in Rhode Island Divorces

1.  Jurisdiction - Jurisdiction is the power of the court to decide a case based on its authority over the subject matter and the person's involved. The court must make a finding that it has the power over a cause of action, in this case a divorce. Subject matter jurisdiction for divorce is defined by statute in Rhode Island, namely that the Rhode Island Family Court has the jurisdiction to hear divorce cases. The court must also make a finding that it has authority over the persons involved in the action. Personal Jurisdiction is also defined by the Rhode Island Statutes in two ways. Assuming that we're dealing with a divorce based on Irreconcilable Differences, the court must find that one of the parties has been a continuously domiciled resident and inhabitant for the period of at least one year immediately prior to the filing of his or her Complaint or Counterclaim for Divorce, Additionally, the non-filing party must be served by a person authorized by law with the Divorce Complaint and any extraneous documents required by law.

2.  Legal Custody - Legal custody is the legal right of a parent or guardian to make decisions for a child in major areas of the child's life including health, education, religion, and the child's general welfare. The court must make a finding as to whether the parents of any minor children born of the marriage are fit and proper persons to have legal custody of the minor children. Then the court must make a ruling as to who should be awarded legal custody of the minor child or children.

3.  Placement - Placement is the right of a parent or guardian to have a minor child physically living with him or her. The court must make a ruling as to who a child should be placed with/live with. Underlying that court's ruling is the finding that the court's ruling regarding the placement of the minor child(ren) is in the best interests of the minor child(ren).

4.  Child Support - Child Support is the right of a child to be supported by his legal parents or guardians. It is calculated using the Gross Incomes of the parents or guardians of the minor child(ren) and applying them to the Rhode Island Child Support Guidelines. The placement parent is typically the recipient of the child support while the non-placement parent is the payer or the child support. The court must determine the number of children, the gross income of the parties and the amount of child support that is due to the children and must be paid by the non-placement parent.

5.  Equitable Distribution - Equitable Distribution is the family court's equitable division of the assets of the marriage (marital assets) and who should be entitled to what asset or what portion of an asset; and equitable division of all the debts of the marriage (marital debts) and who should be responsible for which debts or what portion of what debt. When apportioning the marital assets and debts of a couple, the family court looks a various factors, including, but not limited to, the length of the marriage, the contribution of each of the parties, and the conduct of the parties during the course of the marriage, to name a few.

6.  Alimony - Alimony is support that one spouse may be ordered to pay to the other spouse. In Rhode Island, alimony is rehabilitative in nature. Alimony is therefore only to be awarded to a person who needs to rehabilitate his or her skills in order to be able to enter or re-enter the workplace at a level of income that can allow him or her to survive. In awarding alimony the court will look at the job history, age, education, skills and the current marketplace to determine if the spouse is in need of rehabilitation. The courts will also look to the contribution of the former spouse to the needs of the person seeking alimony as well as the actual monetary needs of the person seeking alimony and may take into consideration the cost of the rehabilitation.

7.  Health Coverage - This issue is self-explanatory. Health coverage is a major issue these days not only for adults but especially for children. If none is made, the Rhode Island Family Court will make inquiry as to who has provided medical coverage for the couple (or family) in the past and endeavor to make provisions for how medical coverage will continue in the future for both spouses, if possible. The court has particular concern for the continued coverage of minor children and is uniquely aware that not all healthcare costs are covered by insurance, and therefore if it is not brought up by the parties during a divorce proceeding then the court will order provisions in its decree for how the uncovered, uninsured or unreimbursed medical expenses of the minor children will be paid. Generally speaking the court will order each parent to pay a portion of each expense incurred.

8.  Visitation - Visitation is the right of the non-placement parent to have physical placement of the minor child or children, usually for a specified amount of time, or under specified conditions in more extreme cases, before returning the child(ren) to the non-placement parent. When the family court determines visitation for the non-placement parent, the judge will usually consider the age of the child(ren), the amount of prior involvement of the parent, the suitability of the home environment the child(ren) would be spending their visitation in, and any history of violence or criminal conduct relevant to the children or the other spouse. The court encourages spouses to work together to positively reinforce minor children that their place in the family unit is still in tact, it is simply that the parents could not live together happily anymore. Visitation is encouraged by the court as long as it is conducive to productive behavior and reinforces a healthy attitude in the minor children. However, the court will step in and make appropriate orders if it becomes apparent that the visitation is doing more harm than good.

9.  Irreconcilable Differences - This is the basis used by the vast majority of people who file for divorce. The full basis is that there have arisen between the parties irreconcilable differences which have led to the irremediable breakdown of the marriage. This is a fundamental determination made my the court. The court must find, through the testimony, that the parties had differences, that those differences were irreconcilable, that the marriage has broken down, that the cause of the breakdown was these differences, and finally that the marriage is irremediably broken such that the spouses can no longer live as husband and wife. Naturally there are other basis for divorce, however since this is the most frequently used, it is included here for your information.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Rhode Island Child Support: What is Earning Capacity?

In a Rhode Island family law proceeding, usually involving the establishment or modification of child support, you may hear the judge or an attorney state that perhaps one or the other of two parents need to have an earning capacity set.  Yet what is an "earning capacity" and what affect might it have on the child support at issue?

Earning capacity is generally raised when one or the other of two parents is alleged to "not be pulling their weight" so to speak when it comes to the amount of money they could or should be earning in order to support the minor child(ren). 

Typically the issue is addressed when one parent files a Motion to Set Earning Capacity for the other parent.  You see this motion more frequently where a father is making considerable money and he gets laid off from his company or gets taken out of work for reasons of TDI (Temporary Disability) and is not bringing in nearly as much as when he was working full-time.  You will also see it when the payer of the child support, usually the father, has a change of position or change of career and that change comes with a reduced income.

A Motion to Set an Earning Capacity is typically an evidentiary hearing which allows both parties to question witnesses under other and to enter into evidence any relevant and admissible documentation that has a bearing on the issue of the respondent's ability to earn income.

Regrettably this motion is somewhat insidious in character.  The objective of the moving party may be one of two tacts.  Usually the moving party wants to show that the respondent has previously made more money than he or she is currently making and therefore his or her earning capacity is the higher amount of money he or she previously made.  If the court were to buy this argument then the respondent may only be bringing in $488 per week in actual income but the court may find that the respondent's earning capacity is the $975 per week the respondent used to make through former employment.

As you can imagine this has a dramatic affect not only on the amount of child support that the court may order the respondent to pay but it also may render the respondent unable to survive if he complies with the child support order.  The respondent is then placed in an untenable position where he or she will end up in contempt of court simply because he or she paid minimal expenses to survive.

The purpose behind the Motion to Set an Earning Capacity seems to be to stop the malingering of men and women who work the system and do not properly support their children by avoiding work and essentially becoming deadbeats who prey on public programs not because they have to but because they choose to as a way of life.

Unfortunately, all too often the Motion to Set an Earning Capacity is used by many Rhode Island Family Law Attorneys as a method of squeezing more money out of good people who have, in fact, supported their children, but may have come upon rough times.  Attorneys know full well that without substantial documentation or witnesses presented on behalf of the respondent, that the decision of the court may come down to an issue of credibility between the movant and the respondent.  This becomes a sad state of affairs if the respondent answers truthfully and correctly and provides ample information by testimony to demonstrate that an earning capacity should not be set above what he or she is making but the judge believes either from appearances or demeanor the testimony of the movant which may well consist of lies.

You can consider "Earning Capacity" to be your ability to earn income at the current time, based upon your previous employment, trade skills and education in the current marketplace under current economic conditions.

If any of the foregoing article was confusing and you are faced with this motion, do not take it lightly.  You should contact a family law attorney and get legal advice to know the proper means of your defense for your situation.

In a nut shell, the establishment of an Earning Capacity for you means that you will be paying child support or perhaps temporary spousal support based upon an amount of money that you do not make and perhaps have no chance of making but which the court orders that you have the "ability" to make.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

A Mistake Men Make in Rhode Island Child Support!

Men shouldn't misunderstand this article about Rhode Island Child Support.  This is by no means a criticism of men who fall prey to this mistake.  Unfortunately, too many men do get stuck in the situation I'm about to describe and frankly, the women who truly place fathers in this situation should think twice about whether they have any integrity whatsoever or whether they are just being greedy at the father's expense regardless of what the law may allow the mother to do.

Fathers should not enter into private agreements with Mothers who have placement of children regarding the reduction and/or payment of either child support, daycare amounts or even temporary spousal support or alimony for that matter.

Private agreements of this kind are completely unenforceable and unrecognized by the court because they must be adjusted by a court order.

What can happen?  Consider Paul's situation in the Providence Rhode Island Family Court.

Paul and his Lucy were divorced 17 years ago.  15 years ago Paul hit hard times after moving to Oklahoma.  Paul spoke with Lucy and they agreed over the phone that Paul could pay $50 less per week on his child support.  Paul paid $50 less per week until just before his son's 18th birthday after graduating from high school.  On the day before his son turned 18, Lucy filed a Motion to Adjudge Paul in Contempt for not paying the court ordered child support.  She asked for the $50 per week for 16 years plus interest compounded at 12% per year, plus her attorneys fees.

Paul was served and had to fly in from Oklahoma.  Paul explained that they had an agreement.  Lucy denied that there was ever such an agreement.  The court didn't care either way.  You can't unilaterally agree to modify child support.  The court found Paul in contempt and ordered him to pay what amounted to tens of thousands of dollars in back child support.  The court scolded Paul and told him he should have known better.

For my part, if they had made an agreement (which I believe they did) then Lucy is dishonest, greedy and lacks integrity.  With any luck, this type of conduct will be repaid to her 10 fold in her life-time.

Father's be aware.... you must have a court order on the issues addressed in this article.  No matter how much you want to....DO NOT simply trust the mother's word on any reduction.  Return to court and get an ORDER.

Do it right or pay the price!

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Rhode Island Divorce - Sylvia, Merlin and the Disappearing Alimony

Sylvia and Merlin have been married for decades.  Merlin's been the primary financial provider while Sylvia took care of the kids and then got a job as an assistant showing apartment units at an apartment complex.  Merlin makes decent money as an HVAC installer.  As many people do, they fell out of love and Merlin asked for a divorce.  Sylvia and Merlin spoke for quite some time over many months and Merlin apparently promised to take care of her by way of alimony.

Merlin files for divorce even though he had agreed with Sylvia that she would be the filing party.  Merlin's attorney makes Sylvia an offer on behalf of her husband.  Most things are agreeable to Sylvia but there is no mention of alimony.  She asks Merlin about it.  He is silent about it.  Sylvia retains an attorney to look into the offer and the alimony aspect. 

Sylvia's attorney confirms that she is a viable candidate to ask for rehabilitative alimony in the divorce.

Sylvia wants to make demand for a higher amount of alimony than might otherwise be prudent.  Sylvia and her attorney go over the options and realize their might be a better option, namely to take more of a cash distribution on Merlin's 401k or buyout on the house and waive the alimony.

Sylvia likes the idea of getting the money up front but realizes her attorney's suggestion means that Sylvia will receive somewhat less over time. 

Sylvia's attorney quickly explains that alimony is taxed as income and therefore she will not get all the money she projects as alimony actually in her pocket.

Sylvia realizes that she actually is better off with a payment upfront than with alimony for several years because she now sees a substantial part of her alimony disappearing and going to taxes.

Sylvia's focus changes to an upfront payment and how she can get it and disregards considering it as alimony.  In the end Merlin may regret the disappearing alimony.

Note:

Alimony under Rhode Island Law is rehabilitative in nature and is based upon a plethora of factors that that the Rhode Island Family Court Judge takes into account at the time of trial. 

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

However, one key factor to remember in this instance is that the payor of the Alimony gets a dollar for dollar deduction against his or her taxes and the payee/recipient of the Alimony must pay tax on the alimony received in the same manner as if it were income.