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March 2007

Rhode Island Divorce: Commingling of Assets

Rhode Island Divorce comes with some interesting questions of law, especially when it comes to property, real estate, personal property and otherwise.

One concept that everyone going through a Rhode Island divorce should be aware of is the principle of "commingling".

This can, and sometimes is, a very arguable concept in a Rhode Island Divorce proceeding and the purpose of this blog post is only to make you aware of its significance.  You shouldn't base any decisions on this posting.  Just be aware that this concept exists and that it could affect various items of property that you do have that may be subject to equitable distribution in your marriage.

Generally speaking, the principle of "Commingling" takes into account the idea that if you have something that you have thought of as "yours". . . for instance, something that is either pre-marital that you own or a gift or an inheritance that you received, and you treat that property in such a way that it was either used by you and your spouse or perhaps if it even was intended that you and your spouse both use it and have the benefit of it, then you have taken something that was separate and distinct that was YOURS and you have now commingled it with your spouse such that it has now become a marital asset.  Once the court determines that something is a marital asset, it has lost its individual character and it is now subject to equitable distribution in your Rhode Island divorce action.

What does that mean practically speaking?  Your spouse is entitled to claim that he or she is entitled to part of that asset or part of its value and you may have no way of stopping him or her from doing so.

Commingling is hard to prevent.  You must usually take fairly extreme measures to isolate the item from your spouse completely.  No contribution, no usage, no payment of storage fees for the item, no cleaning of the item, NOTHING. 

The end result.  If you want to truly protect something that you have from being considered part of your marital estate should you ever be faced with a divorce proceeding, get a pre-nuptial agreement at least as to those few things.  An understanding spouse will realize that all you are doing is protecting a family heirloom or whatever the item may be and not that you anticipate anything other than being with him or her forever.

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

Rhode Island Divorce - Your Children May Surprise You!

In most Rhode Island Divorce matters, the parents will often consider the best interests of the minor children.  At least one parent, if not both, are proponents of keeping the children out of the scuffle and dealing with their issues as adults as far away from their children as possible.

Unfortunately, sometimes that doesn't happen.  In some cases, the children are pulled into the fray and in a few rare cases, this MUST be so if a good divorce lawyer to protect his or her client.

What do I mean?  Let me give you an example. 

Melinda and Brett

Melinda and Brett have been married for 25 years.  They have two children, Alexandra who is 15 years old and Timothy who is 17 1/2 years old.  Brett is obsessive about his "things" which includes his wife, who he sees as his "possession."  Brett's home is his castle, he calls the shots and things are to be done his way without argument. Melinda and Brett have lived in the same house for about 20 years.  The house is paid off and only Brett's name appears on the deed because he considers it "his" house.

Melinda can't take it anymore and tells Brett that she wants a divorce and that things aren't working for her anymore.  Brett flies off the handle, smashes a kitchen chair and throws a drinking glass in Melinda's direction causing it to shatter against the wall with shards of glass flying everywhere.  Melinda is afraid, reaches for the telephone and tries to call for help.  Alexandra and Timothy watch as their father pulls the phone out of their mother's hand and then rips the phone cord right out of the wall.  In front of the children, Brett pulls a knife out of a kitchen drawer and waving it in the air he tells Melinda that if she files for divorce or if she moves out of the house then he will kill her.  Brett stomps around the house slamming doors and cupboards and breaking another object or two.  Brett grabs his coat, warns Melinda not to leave the house and storms out.

Alexandra and Timothy

Alexandra and Timothy do not want their parents to divorce.  They plead with their mother not to call the police and to let their dad calm down and talk to him later.  Melinda can't bring herself to call the police after listening to their children.  Brett stays out until late at night, comes home and forces Melinda to have intercourse with him against her will.  Melinda doesn't tell anyone about this.

A few weeks pass.  During that time Brett keeps reminding her that he will kill her if she files for divorce or tries to leave him.  Brett begins demanding to know her whereabouts throughout the day and tells her that she must be home right after work "or else".  Melinda complies because she is afraid for her life.

Over the next few weeks, Brett calls Melinda's work constantly, begins following her around in his car and leaves countless messages on her cell phone telling her that he knows where she is at all times so she better not do anything.

Melinda Gets an Attorney

Melinda seeks legal counsel for a divorce.  On the lawyer's advice, she obtains a Protection from Abuse Order from the family court which orders Brett out of the house and gives her temporary sole placement of their children.  Immediately after obtaining the Protection from Abuse Order Melinda's lawyer files for divorce.

Melinda's lawyer has Brett served at their house while she is at her mother's house.  Over the next three (3) weeks before the hearing on the Protection from Abuse Order, Brett follows Melinda with his car daily threatens her with physical violence when no one is around and makes anonymous calls to her work and cell phone from other telephones so he cannot be traced.  In each case, it is Melinda's word against Brett's word.

Alexandra and Timothy Meet Mom's Attorney

Melinda's divorce attorney meets with Alexandra and Timothy.  The children specifically confirm the death threats their father made to their mother, their father grabbing a knife out of the drawer and threatening their mother with it. They also confirm that their father pulled the home phone out of their mom's hands while she was calling for help and then grabbed the cord out of the wall as well as smashing various household items.  Melinda's divorce lawyer knows that if the judge is going to continue the Order that keeps Brett out of the house that the judge may need to speak with the judge in chambers to have them confirm these events since ordering a father from the marital home is an extreme remedy especially in light of a divorce filing.

Melinda's attorney explains to the children that it may be necessary for the children to speak with the judge about the events and that it is important for the children to tell the truth.  Alexandra and Timothy promise the attorney that they will tell the truth if the judge wants to hear what they have to say regarding what happened.

Brett Retains a Lawyer

On the day of the hearing, Brett's divorce lawyer objects to the Order, states that Melinda is lying about the incidents and asks that the Order be immediately removed so he can return to his home. Melinda's lawyer argues vehemently that to remove the Order will subject Melinda to continued abuse and force her out of her home because the events are true.

The Rhode Island Family Court judge asks if there were any witnesses to any of these events. The judge is told that only the minor children witnessed the events.  The judge asks if either party objects to his interviewing the children to find out what they witnessed.  Neither party has an objection.  The judge continues the order for one (1) week and says that they are to bring the children to court next Tuesday for an "in camera" interview.

The Kids Meet The Judge

When Tuesday arrived Brett picked up the children from school without telling Melinda and brings them to court.  Upon arriving at court Alexandra and Timothy are led directly into the judge's chambers without any contact with Melinda.  The following dialogue ensues:

Judge: There's no need to be nervous because nothing is going to happen to you here.  You're not in any kind of trouble or anything so you can just have a seat and rest easy.

As the judge, I have to make sure I have all the information I need when considering what to do when issues come before me.   So I'm just going to ask you a few questions. Then I'm going to speak to your parents and their lawyers.

Alexandra and Timothy: [Both Nodding...]

Judge:  Now it's important that you tell me the truth when I ask you something.  You know that, right?

Alexandra and Timothy: [Nodding again.]

Judge:   And you understand what it means to tell the truth, correct?

Alexandra:  Sure.

Timothy:  Yeah.

Judge:  Good. 

Judge: Okay, now there was an argument between your mom and dad recently at your house.  It was in the morning and you were both home.  I know that.  And I know you were home and you watched the argument or at least some of it.  Do you both recall that?

Alexandra: Yes.

Timothy: Yeah.

Judge: Now, did either of you hear your dad say that he wanted to kill your mom?

[The children look at each other and hesitate. . . ]

Judge:  Go ahead.  Either one of you can speak.  How about you young lady?

Alexandra: It happened pretty fast.  I know there was some yelling, but my dad has a loud voice.

Judge:  Okay, but did you hear your father make any threats to your mother?

Alexandra:  Well, his voice sounded threatening because he's loud and he was angry but mom had just told him she wanted a divorce so I can understand why he was angry.

Judge: Alright, but did your father say he was going to kill your mother?

Alexandra:  Well, he might have said something like he wanted to kill her for doing this to him or something like that but I don't think he meant that he would really kill her.  I don't believe my dad could do that.  He gets angry, but that's not my dad.

Judge:  [Looking at Timothy.]

Timothy:  Yeah, dad was upset to hear her say she wanted a divorce but if he said anything like that I think my mom misunderstood or something because she knows Dad would never hurt her.

Judge: Okay.  So your father was angry.  Did he grab a weapon or anything?

Timothy: No.  He just had it.

Judge:  What do you mean he just had it?

Timothy:  Well, I can't remember but I think my dad was making a sandwich when mom told him about wanting the divorce.

Judge: What do you mean that he just "had it" though?

Timothy: You know.  When we make sandwiches we cut them with a knife.  I think dad was just making his sandwich when he was told about the divorce and he had the knife in his hand.  He moves his hands around while he's talking. So the knife was moving around in his hand while he was talking. Dad didn't pull the knife out. He just had it from the sandwich. 

Judge: Okay, last question.  Did your father throw anything or do anything with the telephone that day?

Alexandra: I think that was an accident.  Mom was calling someone and dad reached for the phone and the plug just came out of the wall.

Judge:   Do you remember what your father said to your mother when all this happened?

Alexandra:  I don't remember.  They were upset at each other and we were upset that they were arguing. Dad raised his voice and he was angry. Mom was upset. 

Timothy:  It's hard to remember what they said. We were just so upset that our parents were arguing with each other and that mom mentioned divorce.

Judge:  Okay... I've heard enough.

Alexandra and Timothy Leave the Judge's Chambers.

Judge:  [The judge takes the bench] - The Order is vacated.  The father can return to his home.

Melinda's Attorney: Judge I must object.  This is endangering my client.   The kids . .  .

Judge: The kids just confirmed that your client is either lying or exaggerating and it's clear to me that she is trying to set this man up to get him out of their house.  You had no objection to having the children talk to me and now I have the truth and you're unhappy that it backfired on you so I don't want to hear another word or I'll find you in contempt and send you down to lockup.  The Order is VACATED!  Good day counsel!

Alexandra and Timothy left with their father and they went directly home. Melinda obtained a police detail and went to the house and got her clothing and personal items and left the house to go live with her mother.  

Practicalities of Testimony

The long and the short of this is that adults are not the only people that lie.  This is a substantially true story with names and some facts changed to maintain anonymity and confidentiality.  The children lied and later apologized to their mother for lying.  They lied and it hurt their mother more than they will ever know.  It placed their mother and her lawyer in a horrible position throughout the remainder of the divorce and placed her safety at risk.  Most importantly, it set a precedent whereby she was forced to move out of their home and was relentlessly stalked by her husband for more than a year and a half.  Even after the divorce was done and over with, her ex-husband continued to taunt, threaten and stalks her for more than a year and a half.  This mother could no longer trust her children to back her up on the other occasions when her husband mentally tormented her and she could not trust that the legal system who had called her a liar would protect her.

We all would like to think that our children are loving, loyal and will be there for us or better yet just that they tell the truth. Unfortunately, children are often manipulated by using their own feelings and desires.  Whether you are in a Rhode Island Divorce or another proceeding in which you need to rely on what your children have said, seen or witnesses, first you must think about what happens if they do not tell the truth.  


For those who are interested, Melinda's attorney later discovered that Timothy had been promised a new car by his father when he graduated from high school if he told the judge his father hadn't done anything or if he couldn't remember.   Alexandra said her father told her that he would kill himself if the judge thought he threatened their mom and wouldn't let him come home.

While it is true that the father played on each of the children's feelings, greed and weaknesses, the ultimate responsibility for telling the truth landed with the children.  They were not being asked to side with their mother or their father. They were being asked only to tell the truth. Sadly, despite all the efforts of Melinda's lawyer to achieve some level of safety for her, she paid the price for her children's lack of honesty.

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