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March 2007

February 2007

Rhode Island Divorce - Child Support does not Pay for Visitation

As a Rhode Island lawyer focusing my practice in the areas of divorce and family law, there is something I hear quite frequently from fathers who are seeking representation for their Rhode Island child support issues.  It can be summed up in one statement that I hear repeated often,

"I shouldn't have to pay all this child support to her when I don't even get my visitation."

Child support and visitation for Rhode Island fathers are separate and distinct issues.  When you pay child support as the father of a child you are paying what the Rhode Island family court has deemed is your fair share for the needs of your child.  These things include food, clothing, shelter, childcare, medical needs, basic necessities, etc.

Fathers need to understand that regardless of whether they get their visitation or not through the mother of the child, that you are not paying for visitation.  The two issues are separate and distinct.

Child support is not something that a father may, or should, withhold simply because he is not getting his visitation.  While it is logically understandable from a father's point of view because it may be the only "leverage" the father can think of to create compliance with his visitation rights, it can have drastic consequences.

A father who withholds court-ordered child support in order to force his wife, ex-spouse or the mother of his child(ren) to comply with visitation, may quickly find that he is found in contempt by the court and held at the ACI until he complies with the court's order.

If the mother of your child(ren) is not complying with a visitation order, it is never advisable to withhold child support.  A father who is denied his court-ordered visitation is, generally speaking, better off filing a Motion to Adjudge the mother in contempt for denial of his visitation rights.

All My Best to You on Your Journey Through The RI Family Court.

Rhode Island Family Law - Children, Schools, Schooling and Education

Though not specifically addressed within the realm of a Rhode Island divorce proceeding, a particular issue has raised its head several times in my practice over the years in the form more of a particular factual set of circumstances rather than as a direct legal issue itself.

A recent call presented this scenario from a Rhode Island lawyer and colleague who was endeavoring to assist clients with a predicament.  It went something like this.

Two parents who have not yet become a divorce statistic have moved across the country.  Their minor child has remained with a friend (unrelated by blood or marriage to either parent) here in Rhode Island to provide consistency with the child remaining in his current school system, etc.  The parents would like to have the child remain with the friend through the remainder of his or her schooling.  The friend is presumably agreeable to this as long as the parents continue to provide the financial support necessary for the child and that the friend is not held responsible for any liability of the child.  The friend also needs the authority to be able to act in the best interests of the child and take legal action as necessary to enroll the child in programs, receive confidential health care information regarding the child, etc...

This causes a variety of questions to arise that the colleague wanted my input on.  The general question was, how should this be done properly (i.e. legally) to be able to accomplish what they would like to do.

The number of Rhode Island family law questions that this factual situation presents is perhaps endless.  Therefore, I will end this particular blog post with the questions it raises rather than simply providing the answer I believe is appropriate under the circumstances.

Now you may be saying.... huh . . . Chris, what the heck are you doing?  This is a Rhode Island Divorce Tips blog.  What you've set yourself up for is to give us TIPS and HELP on these issues, not to give us the darn questions and have us figure it out for ourselves!

This may or may not be a semi-useless exercise but it is one that I wanted to try.  True, this is a Rhode Island Divorce Tips blog and that it is my intention to give at least some general guidance regarding the issues presented as opposed to any specific legal advice.  Yet the one common thread that I have found in writing about Rhode Island family law is that when people contact me about these issues they rarely appreciate the nature and depth of the issues or the true value they are receiving getting by receiving insight from a legal professional who is trying to assist in the understanding of these issues.

In truth, it seems that Rhode Islanders, divorce and family law clients, and even other Rhode Island lawyers who don't practice in the areas of divorce and family law have a greater appreciation of the depth and complexity of these legal problems and issues if they at least consider the questions. . . .or by considering the number and type of questions that present themselves to a legal practitioner when he or she either endeavors to provide some helpful information on a Rhode Island legal issue
relating to divorce and family law.

Ultimately, is you consider the Rhode Island divorce and family law questions presented before receiving the answer, you gain a better understanding and appreciation of what legal professionals offer in their services and perhaps why the education for attorneys and other legal professionals is so costly which often necessitates rates that seem out of whack with today's minimum wage.

All this digression from the topic aside, consider these various questions that this scenario presents:

1.  Can an unrelated person be given legal authority over all aspects of their minor child's life?

2.  Can custodial rights be given or assigned to another person?

3.  What are the bodies of rights that a parent has with respect to a child?

4.  How would you absolve people who take in your child from any liability for decisions relating to your child?

5.  If you have your child stay with an unrelated person in a particular school district in order to keep the child in a particular school system, is this perpetrating a fraud upon the school department?

6.  If you can place your minor child with another person voluntarily and you do so, what are your obligations to support that minor child?

7.  If place your minor child with an unrelated person voluntarily and with the person's consent and agree to continue to support the child but assign the child's care to that unrelated person, who is responsible for the minor child's transgressions if he or she decides to damage school property?

The questions are truly endless.  What are your thoughts?  I'd really like to know before revealing my solution to this particular family law inquiry.

All My Best to You on Your Journey Through The RI Family Court.

Rhode Island Family Lawyers - What's a Legal Whore?

Recently I heard the term "legal whore" mentioned in the context of Rhode Island divorce attorneys.  I let it pass and didn't think much of it until I heard it again from someone else in the same context.  For whatever reason, the term kept haunting me because frankly, I didn't know what it meant.

Perhaps I am naive as Rhode Island attorneys go or perhaps it is a new slang or a concept in the legal vernacular that I simply hadn't been exposed to.  To my surprise, I found what I believe to be what was being discussed on those two occasions.

To be clear, I did not create this definition, or coin it, or do anything other than discover it in the course of trying to place the term in the context of conversations that I have only partially overheard.

My reasoning and questioning lead me to the conclusion that a "legal whore" as referred to in the conversations I heard in Rhode Island is a Rhode Island attorney who will do virtually anything for money provided the conduct does not directly violate the letter of the Rhode Island Professional Rules of Professional Conduct.

The idea here is that if a reasoned argument can be made by the attorney that he or she has not violated the rules of professional conduct, then the attorney's actions are justifiable even if they are offensive to others or morally reprehensible to the average person.

The phrase struck a nerve with me and actually has more significance than I would have imagined.  In general that argument can be made that a legal whore is a legal practitioner who will screw anyone over for money provided they don't . . . for lack of a better phrase . . . get caught with something . . . or as the analogy would suggest . . . "catch something".

I have a case right now that strikes a chord with me.  I represent a good client.  This client had a child with her ex-husband.  Generally, this man strikes me as control freak hell-bent on having things the way he wants them, regardless of the cost or the damage he leaves in his wake.  For about a decade, this ex-husband has hired Rhode Island family court lawyers one after the other to haul this poor woman back into court to try to have her adjudged in contempt and sent to the ACI.

In the last court volley, this mother agreed to a substantial concession of child support which I estimate may have been as much as $8,000 in order to end this chaos and stop all the frustration and aggravation to both her and their daughter who is more than old enough to understand that her dad is just trying to hurt her mom.

In the last order, it was agreed that the standard would be that the father would be given about two weeks notice of any changes in visitation for the given month.  The order also provides that if any visitation is missed, that it shall reasonably be made up within that year. Keep in mind that the father lives several states away (approximately 4 hours of driving one way).  The same attorney has been on the case for the father for the past few years and has argued adamantly for his client, though this Rhode Island attorney is well aware of the father's intentions.  In each instance, the attorney made the point that his client has an "arguable basis" for every motion that has been pressed and that as a Rhode Island attorney he or she has the obligation to make any such arguments for the client.

One particular visitation involved both scheduling and transportation problems that arose after the two week period noted in the Order.  The father himself expressed to the child and the mother (my client) that "this could be the visitation weekend that she misses and makes up later in the year".

Several weeks later the father denies making the statement, claims he wasn't given the two weeks notice and now is having his attorney press a motion to adjudge the mother in willful contempt and to either fine her or sentence her to the ACI to teach her a lesson.  The father has apparently expressed directly to the child that this is precisely what he is doing to the mother but as he has done in the past, he will take the stand in court and make a vehement and convincing denial that he ever said anything.

I have no difficulty saying that I have no respect or compassion for any parent who acts in a destructive manner to the opposing parent or their child, to say little of those who do so more than a decade after the divorce is over.  However, it is even more troubling to know that the attorneys who represent this man do so under the guise that they are protected by the Rhode Island Rules of Professional Conduct.  In circumstances such as these an attorney is not prevented from taking on such a case nor are they curbed from their zealous advocacy for their client, but rather the Rhode Island Rules of Professional Conduct actually impose a duty of zealous advocacy on the attorney for any matter that he or she chooses to undertake, provided there is an arguable basis in fact, in law, or by a reasonable argument for the modification of existing law.

A Rhode Island divorce or family law attorney if he or she finds any arguable basis for the client's position must advocate zealously for the rights of his or her client if he or she continues to undertake the representation of the client in the matter.

The most troubling factors here are two-fold.  First, as attorneys, we have the right to refuse cases.  This is our livelihood and we may accept and reject the cases we want to handle.  So, it becomes a matter of choice for us as attorneys.  Now, it is perhaps understandable that an attorney might first undertake a client in what appears to be a noble, warranted or just cause at a time when the attorney is not aware of all the facts and circumstances.  In these cases, I believe it would be improper to refer to those attorneys as either disreputable or as "legal whores" as has been mentioned as the topic of this blog article.

The difficulty arises as to the reputation and character of the attorney when he or she continues to represent a client who, although he or she may have an arguable claim, is not injured by the alleged wrong and is simply raising the issue to injure another party.

What then is the attorney to do?

The Professional Rules of Ethical Conduct would allow the attorney to continue the representation and continue being paid (the attorney's motivation) or to determine if the attorney finds the client's conduct of such a nature that he or she finds the action being instructed by the client to be morally offensive or repugnant, such that he or she moves to withdraw from the case.

So what then is a legal whore?  Alas, Mr. Webster has not advanced his wisdom thus far and so I am left to speculate as to what it is to my own mind.

It is perhaps that a legal whore is an attorney, who advances a course of action for his client for a purpose other than securing the client's alleged rights, but knowing full well that the intention of the client is to achieve some other agenda (i.e. punishing another person by sending them to the ACI to teach them a lesson) and not simply for the purpose of achieving what he or she asserts in their court filings is, his or her client's rights.

I can find nothing more insulting to the legal professional that propagates the common conception that attorneys are cheats, liars, scoundrels and are just out to screw someone over for a few dollars, than the scenario I have alluded to.

Attorneys, who advance a cause-based purely upon rationally based argument knowing full well that the relief sought is not to resolve the matter or ensure the client's rights, but rather to prolong or delay a court proceeding . . . or to simply punish another party because the means may be taken within the bounds of the attorney's code of ethics . . . may end up being wealthy.

In the end, however, you may wish to consider if these lawyers are the "legal whores" that hold up the legal profession to shame and ridicule for remaining within the bounds of their ethics while leaving behind all sense of decency, fairness, and moral integrity.

Under Rhode Island Divorce Law asset division in divorces is "Equitable" not necessarily "Equal!"

Rhode Island adheres to a principle of equitable distribution of the marital estate when dealing with divorce cases.

It is important to keep in mind that equitable does not necessarily mean equal.

The role of the Rhode Island Family Court Judge in a divorce proceeding is to determine based upon all the facts and circumstances presented to the court, what is an equitable distribution of the assets and what is an equitable apportionment of the debt between the parties.

In making this determination the Rhode Island Family Court judge looks at a variety of factors, including the length of the marriage, the conduct of the parties during the marriage, each party's ability to earn additional income, etc.... and based upon all of the various considerations the court will determine if one party should receive more or less of a particular asset or more or less of the debt burden of the parties.

Equitable distribution is not determinable in advance with any certainty and it would be unreasonable to expect any lawyer to give you a likely scenario of who will get what portion of the marital assets and who will be responsible for what portion of the debts.  As this blog article makes clear, equitable distribution is determined by the family court judge based upon the circumstances. 

If you as the client are to obtain any insight at all regarding what may happen if the distribution of your marital estate is made by a judge after trial then your best bet is to ask your Rhode Island divorce lawyer (hopefully a regularly practicing family court attorney) about the process and what his or her thoughts are regarding your particular judge's ideas on distribution. 

A good divorce lawyer who regularly practices in the family courts should be able to give you some indication of where you may stand regarding asset distribution and debt apportionment.

Rhode Island Child Support Guidelines - The Overtime Question!

If you need to calculate or recalculate child support based upon either an initial complaint for divorce or a Motion to Modify Child Support then you may want to approach the subject with care if you are the one paying the child support and you work overtime.

Overtime may be considered by the judge in determining the amount of child support you should be paying.  This is tricky not because the calculations become more cumbersome and not because the case law or statutes provide for any specific way of determining how much,  if any, overtime should be factored into your gross income for purposes for calculating your child support obligation.  Rather, this is tricky because this particular issue is left to the sound discretion of the Rhode Island family court judge presiding over your case.

This wouldn't be quite so tricky if it weren't for the fact that each judge may exercise his or her discretion differently and have differing ideas on whether overtime pay should be factored into your gross income for child support calculation purposes and why. 

Overtime pay continues to be an issue that has lead to very frustrating results for some parents who appear before the family court for that very reason.

As you can imagine it is very difficult to meet with a client who poses the question, "Will the 20 hours of overtime I work each week be factored into my gross income when it's time to calculate my child support?" and give them such a definitive answer as . . . . "maybe" . . . or, "it depends".

Not surprisingly, prospective clients and those who consult attorneys on this issue are often upset to find that there is no set answer that is applied universally to each case.  Most people expect consistency from the family court judges on this singular issue and are shocked to find that this actually depends upon the judge's ideas on the subject and occasionally on their attorney's ability to emphasize a point strongly enough that the judge sees it as inequitable to include the overtime pay in gross income of the child support paying parent.

Ultimately, when dealing with the issue of overtime and whether it should be considered as part of the parent's gross income it may become a matter of which judge is assigned to your case and his or her particular views on the subject. 

Does this lead to consistent results on the subject of overtime inclusion in gross income for purposes of child support?  No, it doesn't.  At best, there may be consistency regarding a particular judge's rulings on the subject.  However, there isn't really any consistency across the Rhode Island family court judiciary on this subject.

It should come as no surprise then that a lawyer who focuses his or her practice in the areas of divorce and family law issues can be your best advocate here and give you the best indicators of success regarding this issue once he or she becomes aware of who the judge in your case will be.

As a general rule of thumb, you should anticipate that overtime pay will be considered and factored into your gross income for purposes of determining child support under the Rhode Island Child Support Guidelines if you work overtime with any degree of regularity and consistency.

It's like the old saying.  Plan for the worst but hope for the best.

It pays to have the right lawyer on your side!