Rhode Island Divorce Tips by Attorney Chris Pearsall

A Lawyer who Hates Lawyers? What is this RI Divorce Lawyer Really Saying?

Today, I am a Rhode Island lawyer focusing my practice on divorce and divorce coaching.  Looking back decades ago I remember another lawyer who had been practicing in another state for some 40+ years who said something that perplexed me.

* * * Remembering the Lawyer who Hated Lawyers! * * *

The lawyer was about as true, honorable, and generous a gentleman as I have ever met.  He had all the qualities I envisioned a good lawyer would have.  He truly cared about each of his clients.  He fought for each one within the bounds of the law, within his professional code of ethics, and with a high degree of morality. The lawyer knew that I greatly admired him as both a person and as a lawyer.

One extremely hot summer afternoon this lawyer returned to his office after losing a district court hearing.  He plopped himself down in the chair at the opposite end of the short conference room table I was sitting at in his office law library.  His secretary nervously brought him a lemonade and napkin then quickly skirted out of the room.  There was an endless silence.  

Finally, I spoke, 

Chris:  "I'm considering becoming a lawyer."

The lawyer lifted his head, wiped his brow with a napkin, grabbed a nearby law book and flung it across his law library breaking the law book's spine.

It was one of the first times I had ever seen this man so upset.

I was quiet until the lawyer spoke.

Lawyer:  I HATE LAWYERS!

This time the pause was endless yet I was just too puzzled not to speak.

Chris:  "I don't understand!?!  You ARE a lawyer."

The lawyer was quiet again, so I asked it as a question.

Chris:  "How can you hate lawyers when you ARE one? 

The lawyer waited quite awhile before speaking.

Lawyer:  Chris, if you're anything like me, you'll understand when you get there. 

The conversation ended.

* * * 20 Years Later We Agree * * *

I've been working in the legal field now for more than 20 years since that conversation.  

As a Rhode Island lawyer, I am bound by a Professional Code of Ethical Conduct among other things.  There are things that I shouldn't say or do and there are things that I can't say or do despite the right to Free Speech guaranteed to all of us by the United States Constitution.  The layperson would be amazed. 

* * * A Message for Roger * * *

For a point of reference only, the lawyer's name was Roger.

Hopefully he's still alive and hopefully he is in tune enough with today's "internet" that he reads this article.

First, to this great lawyer.

Roger, I was like you.  I understand!

* * * A Message for Readers * * *

Now, to my readers I offer this.

You may not understand this statement until you meet with me.

If you like lawyers, you probably won't like me.

With that said, I can tell you that as a Rhode Island Lawyer who has focused my practice exclusively in the area of divorce and family law, I cannot make your problems go away.  No lawyer can!  Yet some lawyers may tell you they can to get you as a client.

Lawyers can't make your problems go away because fundamentally they are your problems.  Only you can take responsibility for those challenges in your life.  Only you truly have the power to resolve those challenges by your decisions.

However, I can tell you that I can help you understand and get through your Rhode Island divorce or family law challenges by working with you either as your Coach or as your Representative.

* * *  Your Divorce Coaching Program * * *

Roger's words were invaluable.  Today, they are the powerful force motivating the continued growth of your Family Law Coaching program.  

I call it Your Program because it is designed specifically for you.  It is designed to teach you, train you, advise you, inform you, and save you time and money in the areas of divorce and family law.

As Your Coaching Program continues to evolve, it will continue to work faster for you, become more economical for you, and become more helpful for you.

Whatever you choose to believe, there is one thing you can know with certainty. I am one lawyer trying to make a difference for YOU with a new and innovative way of practice designed by hard work, my belief that you can do more than you believe you can at this moment, and your willingness to be open to something new that works. 

What can Your Coaching Program help you with?  Here is a brief list . . .

Rhode Island Divorces & Legal Separations, Rhode Island Child Support Establishment, Modifications, Collections and Terminations, Rhode Island Child Custody Matters and Child Custody Modifications, Rhode Island Petitions to Enforced Marital Settlement Agreements and Property Settlement Agreements, Preparing Pre-Nuptual Agreements and Ante-Nuptual Agreements in Rhode Island, RI Petitions to Move Out of State with Minor Children, Petitions to Establish Paternity in Rhode Island, Rhode Island Motions to Adjudge In Contempt and Defense of those Contempt Motions, Protection from Abuse Petitions and Defense Against Such Petitions, Rhode Island Motions and Petitions to Establish, Modify or Terminate Visitation, RI Common Law Divorces and their Defense, Rhode Island Legal Rights, Rhode Island Family Court Procedures, 2nd Opinions about your Attorney on Rhode Island Divorce Cases, Pro Se Representation (i.e. Representing Yourself Appropriately in Family Court), and many more . . . 

Look for the Testimonials Section about Your Coaching Program which is coming soon.  Feel Free to Call Me for a low-cost Coaching Session!

Attorney Christopher A. Pearsall - Phone: (401) 632-6976

Rhode Island Divorce Coaching Tips on Challenging The Guardian Ad Litem's Report

In many cases involving children, the Rhode Island Family Court will appoint a lawyer or attorney familiar with Rhode Island family law and it's standards as a Guardian Ad Litem for the child(ren).

The role of the Guardian Ad Litem is typically to investigate the circumstances of the parents and protect the best interests of the minor children.  The Guardian Ad Litem will use his or her factual investigation and apply his or her findings to the standards set forth by the Rhode Island Supreme Court in the case of Pettinato v. Pettinato, 582 A.2d 909 (RI 1990).

The Pettinato case is the primary case in which our Rhode Island Supreme Court set forth the factors to be considered when determining "the best interests of the child." 

Once the Guardian Ad Litem applies the Pettinato factors, he or she will make one or more recommendations regarding placement, visitation, and sometimes treatment for the minor child(ren) or even the parents.  The nature of the recommendation(s) are usually  based upon the reasons why the court appointed the Guardian Ad Litem.  

For instance, if the Family Court Judge wanted a recommendation regarding placement, then the Guardian will usually focus his or her investigation on investigating issues relating to placement of a child and the end result is likely to be a recommendation by the Guardian Ad Litem as to placement.

The factors for determining the "best interests of the child" as outlined in the Pettinato case include: 

1)  The wishes of the child's parent or parents regarding the child's custody.

2)  The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3)  The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

4)  The child's adjustment to the child's home, school and community.

5)  The mental and physical health of all individuals involved.

6)  The stability of the child's home environment.

7)  The moral fitness of the child's parents.

8)  The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

The formal report of virtually every Guardian Ad Litem will reference the Pettinato factors.  

So what does a Rhode Island family law attorney do if the Guardian Ad Litem's report and recommendations are adverse to their client?  Sadly, this is where things become problematic.  Too many Rhode Island family law attorneys will advise their client that the Guardian's Report "went against them", "that the judge will give the Guardian's Report tremendous weight/importance"  and therefore it is not practical to challenge the recommendations at a full hearing on the merits.  

So what do you do if a Guardian Ad Litem's report is not in your favor any you believe that the recommendations to the court are clearly wrong.

First, family law clients and attorneys need to discuss the Guardian's report and recommendations and what they mean from both a legal and a practical standpoint.  Why?  Because you do not want to spend time, effort and money challenging something if you don't understand what it means to you as a client and particularly as a parent.

Second, clients/parents must understand that a Guardian's Report is based solely upon that solidity of the Guardian Ad Litem's investigation.  

Third, clients/parents need to understand that not every Guardian Ad Litem will perform the same type or depth of investigation.  Therefore, some recommendations will be based upon a solid investigation and others may be based upon a weak investigation.

Fourth, clients/parents need to understand that some Rhode Island family law attorneys are not willing to question or challenge the recommendation of another attorney who may be a well-known attorney by reputation or a friendly colleague. 

Whether you are a family law client or a litigant representing yourself before the Rhode Island Family Courts, you must be aware that a Guardian Ad Litem's recommendation and report is just that... a recommendation.  The court is NOT bound by the Guardian Ad Litem's recommendation and it is the judge, based upon all the factors and all of the evidence presented who makes the final decision.

Why is it important to know these things?

Imagine that you are a judge.  You are presented a report and recommendation by a well-known Guardian Ad Litem that you assigned to the case.  The matter goes through a full trial.  During the Judge you hear all the evidence from a client/parent who was unwilling to accept the report and settle the case.  As the Rhode Island Family Court judge you want to make sure that any information and recommendation you are given is accurate and is based upon sound investigation so that you make the best possible decision.

Now as the judge you hear testimony and take evidence from people that you believe the Guardian Ad Litem should have spoken to before making his or her recommendation.  There is no explanation why the Guardian didn't consider these various people or records.  

In the end, as the Judge you believe that the Guardian simply didn't look deep enough or drew conclusions that were not reasonable because important information was not considered.

As the judge, how much significance would you give to the Guardian Ad Litem's recommendations if you believe the Guardian's investigation was not thorough enough?  Would you give the recommendations very little significance?  Perhaps even none?

This is not a rare scenario.  A Rhode Island Family Court judge wants to make the best decision possible for minor children.  The judge may well find that the Guardian Ad Litem's report should be given very little consideration when making his or her decision because the Guardian neglected to speak with key people, look at important records that were available, or to ask important questions which may substantially impact the Guardian's recommendation and the court's decision.

In my history working with Rhode Island Divorce Attorneys, I have witnessed too many attorneys who advise their client to settle a case when a Guardian Ad Litem's report and recommendations are unfavorable to their client.  This can be a grave mistake.

Individuals who represent themselves and attorneys with their client's best interests at heart need to scrutinize not simply the Guardian Ad Litem's recommendations, but more particularly the factual investigation.

In the end, a good Rhode Island Family Lawyer does not simply defer to a Guardian Ad Litem's recommendations simply because he or she holds the title of Guardian Ad Litem.

Consider this analogy. Carports are rarer these days but the idea is simple.  A carport is a roof that protects a car or truck and its owner/driver from the elements of sun, snow, wind, rain, etc...   This roof is held up at each corner by a post that must be strong enough to bear the weight of the roof and withstand the various elements that are thrown at them.

The recommendation of the Guardian Ad Litem is the roof of the carport.  A  judge would like to rely upon it for a reasonable level of stability just like the driver of a car sitting in his car under the carport wants to be to trust that the carport's roof will keep him safe.

Yet what happens if you show the driver of the car (i.e. the Judge) that the posts (i.e. the investigation) holding up the roof (i.e. the recommendations) are filled with termites, are made of weak wood, and can't support the roof (i.e. the investigation doesn't support the recommendations)? 

Is a judge likely to rely upon the builder (i.e. the Guardian Ad Litem) in that instance, or remain under the builder's roof (i.e. rely upon the Guardian Ad Litem's recommendations)?  The answer is . . . no. 

In short, a Guardian Ad Litem's Report is not the end.  The judge has the final word based upon all the evidence.

Carefully scrutinize the recommendations and particularly the investigative report upon which they are based.  If you are able to invalidate or weaken the investigation, then you remove the support for the recommendations. 

If you show a weak investigation then the Guardian's report and recommendations may not even be given the weight of the paper it is written on.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

Rhode Island's Full-Time Divorce Lawyer is Now
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Copyright 2009.  Christopher A. Pearsall, Esquire
A New Rhode Island Divorce Lawyer and Coach for a New Millenium!

* Rhode Island licenses all attorneys in the general practice of law.

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Some Rhode Island Divorce Lawyers are using Forensic Computer Data Recovery Specialists!

In Rhode Island divorces, lawyers are finding that much of what they may be looking for regarding marital infidelities, finances, investments, and other crucial information is often found on the family computer.

Yet technology isn't the easiest thing to understand.  If you were to look at a computer motherboard with all its wires, diodes, slots and soldered circuits, you'd probably wonder how it does what it does.  In many respects it is like creating an engineered human brain that is designed to perform certain functions.

All in all, computers do amazing things.  Emails are sliced up into manageable units called "packets" and sent around the globe in different directions only to be reassembled at their intended destination where for the user to read.  Photos are transferred from one computer to another via peer to peer networks.  Computer programs are downloaded from internet servers where we type in words or a numeric address and within seconds we are transported to a personal or company profile or website half way around the world.  Computer programs such as Excel, Peachtree or Quicken are installed on our computer to help us maintain our finances, investments and even work with our banks to complete transactions between bank accounts.

Much of what I have described in the prior paragraph occurs through computer hard drives that contain discs spinning inside our computers in small metallic boxes at high speeds.  Based upon your computer keyboard commands and the program(s) you may be running, these drives record, save, delete, move, compress, and duplicate information.  Hard drives operate programs and store vast amounts of data of all kinds for all kinds of purposes.  These "hard drives" are currently the epicenter for all long-term data storage on your computer by virtue of magnetic impressions placed on the hard drive/disc.

These magnetic impressions may be located in a single location of the hard drive or scattered over several sectors of a hard drive disc.  The magnetic impressions are, in essence "memorized" or "tracked" by the computer to form a cohesive impression of any one piece of information.

You may have heard this before but it is worth saying again.  Nothing is ever truly deleted from a  hard drive.  Why is this and why is it important?

First, nothing is every truly deleted from a hard drive because the impression created by any given piece of data is magnetic.  Though the computer can "overwrite" a file (a peice of data) with another peice of data, it does so by creating a counter-magnetic field or a stronger magnetic field that is "more readable" by the computer in the same location as the first file's (i.e. data's) location.  The computer, in turn, essentially says. . . . hey . . . don't recognize the old magnetic impression, the user has told me (the computer) that the old information is not important anymore (i.e. the user of the computer has deleted it) thus I (the computer) can use this space for something new.

Many Rhode Island divorce lawyers will not find this fascinating or even interesting.  Yet even as boring as it may sound, it is crucial for today's divorce practitioner.  Why?  Because crucial data that could be used by or needed by your divorce lawyer may be right on that family computer's hard drive.

You see, even though you may have told your computer to delete a file, it's not really deleted.  It is actually marked as . . . hey, this area can be used for something else when it's needed.  So, the computer just doesn't recognize that the old file is there anymore.  At least it doesn't recognize it on the screen of your computer.  Yet I can assure you that it's still there and it can be recovered.

Even if your divorce lawyer needs information that you know was on the computer and the computer has said  . . . hey . . . here comes a new file . . . the user/operator of this computer told us we can use the space where finances.xls used to be.  Although the computer then writes a new file or part of a file to that same space, a magnetic impression still remains there.  Yes, it may be a little fainter but it's still there.

So what do you do about it.  Well, there are multiple levels of computer experience right now and multiple levels of technology that can help you.  This is where knowledgeable computer professionals like myself come in.  There's no real name to each level of technology professional but for the sake of this article I'll define them in levels.

First, you have your Level 1 Forensic Computer Analyst.  These guys are the real pros of the computer technology world.  They know all the technical terminology behind each and every aspect of hard drive creation, how it works, how things are saved, how things can be recovered and so on.

A Level 1 Forensic Computer Data Recovery Specialist can pull just about anything that ever existed off a hard drive if there was ever a chance of doing so and they can testify in court with a level of expertise that you would find so mind-boggling that your brain cells might actually overload from the technical information they know.  Typically they prefer to work with the original hard drive, they track each step with precision so that there is no question that the data retrieved was from the exact hard drive that has been examined and that there is no doubt that the information you have been, or will be shown is from the hard drive at issue in the court case.  Everything is meticulous and usually involves the actual technical dis-assembly of the hard drive itself to place the hard drive discs (often called "plates") in special machines in order to read the magnetic impressions with high-end technology that costs more than most people make in a lifetime.  The hard drive is examined, verified, data is retrieved and the hard drive discs are preserved for the hearing or trial.  The hard drive itself is not susceptible of being put back together again but rather remains in a disassembled state, therefore all information is backed up before the process begins so that the data the user doesn't mind you seeing is still preserved.

A Level 1 Forensic Computer Data Recovery Specialist must spend considerable time and resources to get the information you may need.   It may cost as little as $20,000 or in excess of $100,000 to get the job done without question and with qualifications that place the information without question before the divorce court as authentic.

A Level 2 Forensic Computer Data Recovery Specialist has a differing level of expertise.  This individual has the background to know the ins and outs of hard drives, computer storage, erasure, recovery and the various levels or retrieval achievable.  Usually, he or she has the knowledge and expertise to testify as an expert at trial and is capable and confident that he or she can verify the data retrieved from the computer hard drive and testify as to its reliability on the witness stand to a reasonable degree of scientific certainty such that the information is usable in a courtroom.

The Level 2 Forensic Computer Data Recovery Specialist differs in that he or she does not disassemble the hard drive itself but uses one or more methods of obtaining information from the drive without damaging the original data or disassembling the hard drive for examination by complex magnetic examination retrieval tools.  This may (or may not) involve a retrieval of the information directly from the drive by means of a recovery of only of those files containing specific information sought using direct criteria provided by the party employing the specialist to recover the data.  Usually, the Level 2 Forensic Computer Data Recovery Specialist will hook up a separate computer with advanced software and/or hard drive analysis programs or complex algorythms designed to identify magnetic impressions on the drive and restore them to their original coherent form on a brand new and never used drive containing no data whatsoever so as to prevent any confusion or issues with magnetic impressions from a prior user.

As with a Level 1 Forensic Computer Data Recovery Specialist, the Level 2 Forensic Computer Data Recovery Specialist possesses the level of knowledge, education experience and ability necessary to testify in a Rhode Island divorce matter regarding the recovered information.  A Level 2 Forensic Computer Data Recovery Specialist may prove costly and may reasonably range from $10,000 to as much as $40,000 due to his or her level of experience, the time-consuming nature of the work that needs to be performed, and the specialist's ability to testify in a professional capacity as a qualified expert before the Rhode Island family court.

A Level 3 Forensic Computer Data Recovery Specialist fills a very important gap that the other two specialists do not adequately address.  The process used by the Level 3 Forensic Computer Data Recovery Specialist provides substantial value to the client while still addressing two important factors that are important to many clients regarding more recent computer usage and/or deletions that may have taken place on the computer, these factors are . . . price and knowledge.

The Level 3 Specialist has enough knowledge and information through education and/or experience to properly create a forensic duplicate of the hard drive to be examined for the Rhode Island lawyer who has engaged him or her. 

The Level 3 Specialist has enough knowledge to allow the lawyer seeking to compel the computer to make representations to the court that nothing will be added to, removed from or otherwise modified on the original hard drive and that upon completion of the forensic copying process the hard drive will be returned to the computer owner completely intact.

This unique process for the Level 3 Specialist enables the Rhode Island lawyer to make a stronger argument for the production of the computer or simply the hard drive from the computer because the computer user suffers no prejudice except for a nominal loss of time while a forensic copy of the hard drive is being made. 

The Level 3 Specialist then has a forensic copy of the original computer hard drive, complete with all magnetic impressions literally in layers throughout the hard drive.  Using the forensic copy of the hard drive the Level 3 Specialist is able to use modern day advanced recovery programs to examine as many layers of the forensic drive capable by each software program based upon the format of the forensic drive. 

The Level 3 Specialist can then perform a complete recovery of all data files whose magnetic impressions are sufficiently intact for the data in the magnetic impression to be retrieved.  This will always be done to a new drive that is at least one and one-half to two times the size of the original forensic hard drive being examined in order to account for the recovery of countless files on varying magnetic layers of the forensic drive.  Many times the software may endeavor to identify the particular layer the magnetic impression exists on and help the forensic specialist determine by the recovery program's standards whether the file was a recent deletion or an original file from the first installation of the operating system or perhaps an upgrade overwrite of a system file.

The Level 3 Specialist's job is often times very time consuming since the creation of a forensic copy is a tedious process and the specialist may want to identify areas of damage on the drive during the copying process.  Additionally, the recovery process is extensive and requires a sector by sector analysis of the forensic copy.  The amount of time that may be expended by the specialist in the forensic copying process as well as the recovery process depends upon several variables including but not limited to, the size of the hard drive to be duplicated, the power of the computer performing the duplication process, the speed of the new hard drive accepting the forensic information, and the type of connection it has to the processing computer.

Likewise, the amount of time necessarily expended by the Level 3 Specialist in the forensic recovery process depends upon the the size of the forensic hard drive being recovered from, the processor power and memory of the computer allocated to performing the recovery process on the forensic hard drive, the acquisition speed of the new hard drive for accepting the forensic data being recovered, and the type of connection both between the forensic hard drive and the processing computer, and also the connection between the processing computer and the target recovery drive, the sophistication and number of recovery programs the Level 3 Specialist uses to recover the data, and lastly the number of layers that are recoverable from the forensic hard drive.

The drawback of a Level 3 Specialist is that he or she has the knowledge to perform the work necessary to determine whether information is readily available and to recover that readily available information, but he or she is not likely to have the knowledge or experience the court requires to testify as to the information recovered.  Thus the Level 3 Specialist is primarily for a cost effective benefit for the client perhaps as to a settlement posture or to determine whether further action should be taken but not as an expert to testify at court.

As I mentioned previously, the two beneficial needs filled by the Level 3 Computer Data Recovery Specialist are price and knowledge.  A Level 3 Specialist will cost between $2,000 and $6,000 depending upon the size of the hard drive.  The price is considerably less than either the Level 1 or Level 2 Computer Data Recovery Specialists and thus this price difference may make a Level 3 Specialist the right choice for a client who believes that information about the marriage and/or finances (or whatever you may be looking for) was on the hard drive within the last six (6) to eight (8) months.

Generally speaking, the more recently the data existed on the hard drive, the more likely it is to be recovered.

The second benefit filled by the Level 3 Computer Data Recovery Specialist is knowledge.  Sometimes a party may not know if there is anything on the computer that will be helpful to him or her, or the difficulty of recovery of information known to exist at one time on the computer. 

Ultimately, a Rhode Island divorce client may want to spend less money to have a software recovery performed to give him or her more knowledge about whether helpful information is readily retrievable before deciding to hire a higher level specialist.  It makes sense.  Why pay more for a retrieval specialist simply because he or she can testify about the findings by virtue of his or her credentials?   You may be paying only for credentials because the process is helpful to you, if and only if, information helpful to your case is actually discovered on the computer hard drive.

The Level 3 Computer Data Recovery Specialist is able to give you the knowledge as to whether there is readily obtainable information that will help your case on the computer hard drive.  While this is certainly no guarantee that the Level 3 Specialist has found all data that is possibly retrievable on the hard drive, you are able to do a cost/benefit analysis as to whether it is beneficial to you to engage a more costly specialist who will retrieve even more information and also have the ability to testify at the time of trial.

Recently a divorce colleague in Rhode Island used a forensic computer data recovery specialist who retrieved information showing that one spouse had concealed millions of dollars in marital assets from the other spouse.  A substantial portion of the information leading to the discovery was contained on the spouse's computer.  Without using a computer data recovery specialist, one spouse would have been cheated out of millions of dollars.

What is the true value of a Forensic Computer Data Recovery Specialist at any level?

Priceless ! ! !

Authored By:

Christopher A. Pearsall
Attorney-at-Law

AND

Level 3 Forensic Computer Data Recovery Specialist
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 Tip: Pension's Vested or Not Vested?

If either party in a Rhode Island divorce has a pension then there are various issues you will want to consider.  Specifically, the divorce issue we want to address here is that of "vesting." 

You can find out if your pension is vested for the purposes of your Rhode Island divorce by contacting the administrator of your pension fund and simply asking if your pension if your pension is vested or not.  You also may want to asked your pension administrator when your pension will vest (become vested) just in case the date might occur during the course of your Rhode Island Divorce proceeding.

ISSUE

The Rhode Island family court judge only has the power to order the equitable distribution of marital assets, including pensions. 

If you or your spouse has a pension that is not vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

If you or your spouse has a pension that is vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

ANSWERS

The only part of a vested or unvested pension that is subject to equitable distribution/division by the Rhode Island Family Court Judge is the "marital portion" of the pension.

The marital portion of any pension is dependent upon various circumstances, including (1) the length of the marriage, (2) the type of pension (civilian or military) and the laws governing it, and (3) whether the pension is vested or not.

While it may be the Rhode Island family court judge's role to determine after trial what the marital portion of the pension may be, it is the job of each spouse and his or her divorce lawyer to present to the court what part of the pension is the marital portion.  Sometimes your divorce lawyer may be able to argue that a larger portion of the pension is actually the "marital portion" if it is to your benefit to do so.  However, if there is disagreement between spouses and/or their divorce lawyers regarding the true manner in which the marital portion should be calculated, proof may be presented at trial.

Proof of the marital portion of the pension that is subject to distribution by the Rhode Island family court may require expert testimony by way of an actuary who substantiates the basis for claim and the amount of it.  Without this information, your Rhode Island divorce judge may not have sufficient information for determining the basis, amount or validity of your claim on that pension.

The issue of whether a pension is vested or not is of substantial benefit to both spouses, the court and an actuarial expert if one is necessary. 

If the pension has not vested at the time of the entry of the Final Judgment of divorce, then the pension payments themselves are not subject to distribution in the future.  Since the pension is not vested then the body (corpus) of the pension is only made up of the contributions made to the pension.  There is no entitlement to the benefits of the pension after it vests simply because a spouse may have an entitlement to a portion of the monetary contributions to the pension.

If the pension is vested prior to the entry of the Rhode Island Family Court's Final Judgment of Divorce, then the benefits of the pension itself provided by the "vesting" of the pension during the marriage are subject to distribution of the Rhode Island family court.

Thus, the family court's distribution power in Rhode island in a divorce proceeding is limited to either (1) the financial contributions made to the pension when it has not vested prior to the entry of Final Judgment of Divorce, or (2) the benefits provided by the pension when it has vested prior to the entry of Final Judgment.

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 and the Family Computer!

Recently a colleague of mine, Attorney Tim Conlon, won what is reported as a tremendous victory for his client by settling a case with $24 Million dollars in assets.  The case was won after Attorney Conlon used forensic evidence from a computer to show that the husband had hidden or failed to disclose nearly $11 million dollars in assets that were arguably marital.

Attorney Conlon was reported as saying in a PR Web Press Release:

"In the 'old days' a divorce investigation meant surveillance, stakeouts and stacks of documents . . . Today, evidence of misconduct is often sitting in the family computer, if you know where and how to look."

To my knowledge, Attorney Conlon is much like myself, a very modern attorney who himself has harnessed that power of technology in his practice in a manner similar to what I have done while still maintaining support staff which is not only traditional but it is an effective way to practice.  Attorney Conlon was both an inspiration and a catalyst for my early stages of planning for my own practice to go virtual. 

Yet I digress.  What interests me most regarding the various press releases on Attorney Conlon's victory is more what they do not say than what they do say. 

Though Attorney Conlon is most assuredly a well-known and respected family court litigator, what is not said is only inferred by the surrounding facts of the various press releases. 

The marital estate Attorney Conlon was litigating was initially valued at $13 Million Dollars by the husband in the case.  By no means was this a nominal marital estate.  In fact, it was sizable even at that figure.

This speaks more to the case than people might imagine.  There are many people who get divorced before the Rhode Island Family Court who simply can't afford Attorney Conlon's hourly rates whether he is  worth it or not.  Yet even at a $13 Million Dollar Marital estate Attorney Conlon's client could afford to employ him.  It is certainly to Attorney Conlon's credit that he took the initiative to seek out forensic evidence on a computer used by the husband to develop further evidence and strengthen his posture to settle the case for his client.

Yet "forensic evidence" as stated by the press releases suggests something more.  I believe a skilled practitioner in Rhode Island such as Attorney Conlon would surmise that he needed to develop this evidence correctly in the first instance for it to be of an value at all.  This means that to develop this evidence he would need it to be obtained by professionals who were experts in their field and could testify in an expert capacity as to what was found on the computer, the technique that was used, the reliability or fallability of that technique, his or her experience in undertaking this kind of forensic computer retrieval, how conclusions were reached that the data retrieved was reliable and was, in fact, linked to information the husband was concealing, etc...   What does all of this mean?  It means that an expert was needed and experts cost money. 

Thankfully I have had the opportunity to speak with a few of the leading experts in this field around the country and all too quickly was aware of the cost to my client of using such experts just for the retrieval of the data.  In most instances the cost was about $5,000 just for the initial steps of retrieval regardless of whether helpful data was retrieved or not.  Now, while this is certainly possible even on an assumed $13 Million Dollar marital estate, it might not be possible on a $500,000 marital estate or even a $1 Million Dollar marital estate since in many instances marital estates are tied up in real property or investments and are not in liquid funds to pay attorneys or forensic experts which may require as much as $15,000 or even $50,000 for those with substantial credentials to obtain the data and be prepared to link it to the marital estate or to the non-disclosure of assets by one of the parties to the divorce.

In several cases of my own, forensic recovery of data on a personal computer has played a part in trying to ascertain where missing monies went.  However, in those cases the clients did not have the type of monies necessary to engage a forensic recovery specialist even after the computer system at issue was produced. 

Despite having run my own computer business prior to becoming an attorney and my own knowledge of the inner workings of computers I found that even after discovering information damaging to the other party, it would not be considered by the court because I was not technically "an expert" and an attorney can not as a matter of ethics act as counsel for a client and testify in court on the client's behalf.

Without an expert in computer forensic data recovery I could not make a direction connection to the information I had discovered and therefore it was useless.  Why?  Because the opposing counsel was well aware that I could not use it at a trial because I had no expert to testify to it in any meaningful sense and my client could not afford the monies necessary to recover the data and be prepared to testify at court.

Attorney Conlon's statement is most assuredly true.  Many times what is needed for a client's case sits on the family computer.  Yet the cost for most family law cases is far from affordable. 

One family court judge commented to me in a chamber's conference that if the marital estate can't afford to bear the cost of the forensic expert then there is not enough in the marital estate worth arguing about.  Unfortunately I have to disagree.

The United States and Rhode Island have citizens with all variations of economic situations.  Some families range from substantial debt created by gambling addicts as against reasonably moderate assets attained during the marriage which, if taken at face value might wash each other out.  Assuming even for the sake of argument that the assets total $500,000 in equity and one party is an internet gambling addict who has racked up $480,000 in internet gambling debts that was unknown to  the other party, a judge might consider the actual equity and value of the marital estate to be $20,000.  This is a case where even nominal Rhode Island attorneys' fees and a forensic expert performing document retrieval might consume the judge's perceived value of $20,000 regarding the marital estate.  Yet shouldn't the spouse who has been wronged by the gambling addiction of the other spouse have the opportunity to demonstrate the wrongful conduct of his or her spouse and take the position that based upon the spouses wrongful conduct that the gambling spouse should be responsible for the entire debt and be awarded only a small portion of the remaining assets of the estate?

The foregoing is certainly an arguable position and a reasonable one to take.  Yet without the Judge's acceptance that the wronged spouse should be entitled to take this position and use or otherwise liquidate a portion of the $500,000 in equity in the marital estate without considering it against the accumulated debt of a single spouse in order to engage a forensic expert, the wronged spouse is out of luck and funds are not available for the wronged spouse to have even the slightest opportunity to prove his or her case.

The conclusion to be drawn here is that it is no monumental task to determine that hidden information may be available on the family computer through forensic evidence.  What is of more consequence is identifying a proper expert and even more crucially having the funds available to pay not only your attorney's fees and costs but also to pay an expensive forensic expert to go through a computer with the hope that the forensic expert will find something that aids your case.

The fact is that experts cost substantial money here in every field and to a person who has made $500,000 in a 6 year marriage and $80,000 of it is unaccounted for, that $80,000 is a big deal.  It may not be a big deal to a judge or it may not be a big deal to someone with a martial estate of $24 Million Dollars, but it is certainly a big deal to a middle class american spouse who has busted his or her hump to accumulate that money.

So what does this mean?  I see it this way.  Money affords you the high-priced lawyers.  More importantly as in Attorney Conlon's case money, it affords you to retain the forensic computer expert and perhaps the justice that the victim of a $500,000 marital estate might not be able to afford or the court might not allow you to use marital assets to go on what one judge has termed a "fishing expedition."

In the end I am certain that Attorney Conlon was innovative and creative in reaching the settlement for his client, yet just like the others who work hard behind the scenes at the courthouse but may not get the public credit they deserve, it is the marital estate's funds and the forensic computer experts who retrieved the crucial data needed for the victory . . . but at what cost?

Shouldn't middle americans be entitled to the same methods and resources to save their hard earned $80,000?  Or is this reserved to the multi-millionaires of the world?

My point and tip is simply this.  It is fantastic what Attorney Conlon was able to do for his client in a multi-million dollar marital estate, his efforts should not be minimized.  Yet you should not be disillusioned into thinking that if $50,000 or $80,000 is unaccounted for in your marital estate that you will have the opportunity or the resources to be able to afford the luxury of a forensic computer expert to find it on your family computer due to the cost.  The cost of the expert alone may outweigh what one spouse may or may not be hiding from the other spouse.  If their is not enough money in the marital estate to go on what may be seen by a family court judge as a "fishing expedition" for evidence of misconduct, the Rhode Island Family Court may prohibit this type of search at all.

Authored By:

  Christopher A. Pearsall, Esquire
70 Dogwood Drive, Suite 304
West Warwick, RI 02893


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