What happens if I don't want child support from my husband in the divorce?

You are getting divorced. You and your spouse agree that you will have placement of the child.  You don't want child support from your spouse.  What might happen?

First, child support is a child's right to be supported by both parents.  As a custodial parent with placement, when child support is ordered, the child support actually belongs to the child and you are entrusted as the parent with those monies for the support of the child.  An award of child support by the Rhode Island Family Court carries with it the presumption that as a custodial parent you will use the child support in the child's best interests.  These best interests typically including providing the child with a place to live, food, heat, and clothing, etc.

You are not allowed to "waive" child support for your child.  The underlying principle behind the prohibition on the waiving child support is that it is never in the best interests of a child for any parent to waive financial support for a child from the other parent. One concept fundamental to this principle is that a "waiver" is most often considered to be permanent and by Rhode Island law child support is subject to review and modification by the family court until the minor child is emancipated. Therefore, a waiver is not only contrary to the best interests of a minor child but is contrary to Rhode Island law and therefore would be unlawful.

The question may more appropriately be, "Can a Rhode Island Family Court Judge put to through a divorce matter without awarding either parent child support?"  The answer to this question is "Yes." 

Though either party may still return to court in the future to have child support set or modified, a judge has the power to leave child support "open."  Leaving child support "open" essentially means that based upon the circumstances as presented that the judge orders that the issue remains open with no award to either spouse and may be addressed in the future if and when either party returns to court.

The question then changes to, "Under what circumstances will a judge leave child support "open?" There is no concrete answer to this question since the circumstances of every case are different. 

Ultimately, the parties need to reach agreement that child support should remain open and they must also present to the court a substantial reason as to why it is in the best interests of the child to leave child support open.

Example:  Sandy and Bill have three (3) minor children ages 14, 15 and 17 and a home in Warwick, RI.  They reached a Marital Settlement Agreement to resolve their divorce. Sandy earns $30,000 per year. Bill earns $67,000 a year.  Sandy cannot afford to buy Bill out of his interest in their home.  Sandy wants to continue to live in the home until the youngest child reaches age 18.  Bill wants their kids to be stable and he agrees they should all stay in the house until their youngest child reaches age 18. 

However, Bill could never afford to continue to pay the mortgage on their home, the calculated Rhode Island Child Support, health insurance for the children, his share of the children's medical expenses and extracurricular activities, and a small apartment with minimal expenses for utilities. 

Sandy and Bill with the help of their attorneys reach an agreement that Bill will be solely responsible to pay the mortgage on the home until their youngest child reaches the age of 18 in lieu of paying child support and they will ask the court to leave child support open.

At their divorce hearing with the help of their attorneys, they provide their agreement and explain through their testimony that they are requesting that the court approve their agreement and leave child support open for now.  In short, the request to leave child support open is because even though the three (3) children will continue living with Sandy, Bill will be paying the house mortgage, until the youngest child reaches 18 at which time they will sell their home and split the equitable proceeds 50/50.  They point out that the house mortgage is considerably more than what Bill's child support would be and that the children's stability by staying in their own home through high school is in their best interests physically, mentally, socially and educationally. 

The court finds that the circumstances warrant leaving child support open as long as Bill continues to pay the mortgage on the home.

There are many different circumstances that may qualify for leaving child support open and they are not limited to divorce situations.

Many times it is a matter of whether leaving child support open is fair and in the best interests of the children.  More often than not it is your lawyer's approach when making the request to leave child support open that is the greatest factor as to whether the court accepts or rejects the request.


Can I Sue a Guardian Ad Litem in my Rhode Island Family Court Case?

A Guardian Ad Litem ("GAL") is typically a lawyer that is appointed by the court in a Rhode Island Family Court proceeding to protect the best interests of the minor child or children.  After an investigation into the issues before the court, the GAL typically provides a written report that contains his or her investigation, findings, and recommendations for the court to consider. The GAL's report is typically given substantial weight before the court in the case because the court has appointed the GAL to assist the court by performing this investigation and making unbiased recommendations. The GAL's fees are often paid by one or both parties in the action. 

A third-party asked if I would answer this question but there is truly no way to answer it the way it may have been intended so I will answer it as it was posed. 

Yes, you can file a lawsuit against a GAL.  In fact, nothing prevents you from filing a lawsuit against anyone for any reason whatsoever.  However, whether that lawsuit will prevail or whether it might be dismissed is another issue entirely.  Over the years I have seen people make up fraudulent facts and then file lawsuits based on those facts purely to harass someone, even if they have to legal basis.  

The challenge in answering this question is that there are lawsuits are supposed to be based on facts applied to a "valid cause of action" that is recognized by law in order to have any chance of prevailing at all.  A lawsuit that is unsupported by the facts or for which there is no legally recognized cause of action typically will fail and will either be dismissed by the court or the court will enter a judgment in favor of the opposing party.

In the case of a lawsuit against a GAL, you will want to consider several things, 

1.  If you file a lawsuit against the GAL what do you expect to accomplish?

2.  Will filing the suit against the GAL make your position in the family court case worse?

3.  What are the facts that cause you to want to file suit against the GAL?

4.  What causes of action, if any, exist that could be filed against a GAL with the facts that you have?

5.  Did you challenge the GAL's report findings and recommendations in the Rhode Island Family Court before filing your lawsuit?  The family court is your first level of recourse if you do not approve of the investigation and/or recommendations.

6.  What defenses could a GAL assert in his or her defense that might cause your case to be dismissed or diminished?

Without knowing the facts that cause you to want to file your lawsuit, no attorney could determine whether or not you have a recognized cause of action against a GAL or whether those facts support any cause of action against the GAL. 

One legal factor to keep in mind and research before filing any action against a GAL is the concept of "judicial immunity."  Generally speaking, judicial immunity is the legal principle that judges, magistrates and others acting on behalf of a court should be (and often are) exempt from civil lawsuits if they are acting within the scope of their judicial duties. This principle exists because those acting in a judicial capacity could not theoretically do their jobs impartially and without undue influence from a party if they can be sued in civil court.

It is possible that a GAL by being appointed by a judge to assist the family court with an investigation and recommendations for the Court in best interests of a minor child or children may be considered as acting in a judicial or quasi-judicial capacity and he or she may be protected from civil suits by law.

Ultimately, be sure you understand all the consequences, repercussions and aspects of filing a civil suit against a GAL before you do so.  It could do considerably more harm than good.

 

 


Your Rhode Island Divorce Agreement - The Devil is in the Details!

John and Sheila handled their own divorce to save themselves attorney's fees. Now they had to return to court to settle who was entitled to what part of their home sale proceeds based on their divorce agreement.

During their divorce, Sheila wrote up a very short divorce settlement agreement of only a few pages and very few details and both parties signed it.  This agreement was accepted and approved by the Rhode Island Family Court which only required that the court find that it was fair and equitable and that it was also freely and voluntarily entered into by the parties. 

John and Sheila would soon find out that the importance of a divorce settlement agreement relies on the words used and that it needs to address things that could and/or should happen while parties are waiting for the house to sell, including the obligations of each party.  Regrettably, John and Sheila would end up learning that when it comes to settling a divorce and putting together a divorce settlement agreement that the "devil is in the details" and that the details matter greatly.   

Their divorce agreement provided, in pertinent part, the following:

1.  The parties were each responsible for the debts in their own name.

2.  The parties' home was to be sold as soon as possible.

3.  The parties were each to be responsible on a 50/50 basis for any repairs and improvements for the home that were reasonably necessary for the home's sale.

4.   On the sale of the home, John was to receive 30% of the net proceeds and Sheila was to receive 70% of the net proceeds.

Four years later, the house sold.  However, Sheila had not kept the home on the market the entire time.

At the closing, Sheila claimed she was to receive $117,000 at the time of the closing and John was only to receive $26,000.  The numbers didn't add up and John wouldn't agree to that distribution so the closing attorney was forced to hold the funds until the matter was resolved by the parties or the court.

Sheila claimed that she paid for a bunch of improvements and repairs over the past four years that John had not contributed to and she was due a credit for half of all those improvements and repairs.  John knew nothing about any improvements or repairs and was never consulted about them.  Sheila also claimed that she was due a credit for all the mortgage payments she had made over the past four years because those payments protected the equity in the home. Sheila also claimed that one of John's creditors put a lien on the house because he didn't pay one of his debts so she had to refinance in order to pay off the lien so the house wouldn't be lost to a judicial sale. John was not aware of any lien on the house.

John asked Sheila for the bills and invoices showing the cost of the repairs and improvements for the house as well as the lien and the refinance documents and refinance amount.  Sheila was not willing to provide the requested documents.

The parties must now to court to have the court determine who was entitled to what portion of the proceeds from the sale of their home by trying to enforce their divorce agreement.  

The court has the power to interpret a divorce settlement agreement but it may not modify such an agreement.  Therefore, the court must enforce the agreement as it is written, except that it may be required to fashion a remedy where the agreement is silent on the particular issue between the parties.

Unfortunately, the divorce agreement creates legal issues for both parties because it is silent on too many issues here.  Specifically, the agreement did not address any of the following, namely:

1.  Loans taken out against a home's equity prior to sale of the home;

2.  Liens recorded against the home pending sale and unilateral payoff of a lien by one party;

3.  What constitutes an improvement or a repair to the home;

4.  How improvements and repairs are determined to be "reasonably necessary";

5.  Whether one party may unilaterally make improvements and repairs to the home;

6. Who was required to pay the mortgage, taxes, and insurance costs to maintain the home;

7. Whether a person paying any of the mortgage, taxes, insurance costs for the home pending its sale is entitled to any credit or reimbursement for any such payments;

8.  Whether either party is entitled to receive credits against the others percentage of the net proceeds if the percentage of proceeds are stated specifically but no credits are allowed for in the agreement.

9.  What is a party's remedy for a breach of a provision of the agreement?

These are only a few of the myriad of issues created by a short handwritten agreement by one of the parties which failed to address things that divorce lawyers commonly anticipate and include in the agreements in advance so that there is little or no question as to what is to happen if these circumstances arise. 

The agreement itself is perhaps the most delicate and important part of the resolution of a divorce because the vast majority of the time it is the contractual provisions contained in your divorce agreement that the court is asked to read, interpret and enforce.  If the agreement and the terms are clear, there is little or no argument to be had and the proceeding before the court, if any, is often shortlived because the agreement addressed the issue and the only obligation of the court is to enforce it as written.

The details of a divorce agreement (aka Property Settlement or Marital Settlement Agreement) are the lifeblood that prevent issues in the future.  John and Sheila have most likely learned a valuable lesson.  Specifically, it is worth having an experienced divorce lawyer draft a proper divorce agreement to anticipate future events and put them in the agreement.  If you fail to do so, you are very likely going to spend considerably more money than the divorce attorneys fee later in order to return to court and argue against a poorly written agreement and then take your chances on the outcome.