Previous month:
June 2007
Next month:
August 2007

July 2007

Rhode Island Divorce Tip: Take it or Leave it.

You're contemplating divorce.  You want your rights to be protected.  You decide to hire an attorney. You find the specific lawyer you want to represent you but you need a $3,500 retainer.

There is $5,000 in your joint marital bank account.  Meaning that both of your names are on the account and both of you have the right to deposit and withdraw funds or write checks drawn on the account as signatories.

Do you take the $3,500 out to hire the lawyer or not?

The question isn't as simple as one might think because as any person with common sense knows . . . for every action there is a reaction  . . . and possible repercussions.

There are only three true answers to the question, but each has its own considerations.  The three answers are, of course,

1.  You take the $3,500.
2.  You don't take the $3,500.
3.  You take a portion of the $3,500 and try to work out an arrangement with your chosen divorce lawyer for the remaining portion.

Under Rhode Island law, you and your spouse equally own the money in that account and you each have an equal right to use the monies in that bank account.  Therefore, technically you may take the $3,500 and be well within your legal rights.

Yet when you get into the realm of the Rhode Island Family Court system as a divorce participant it is not so much about what you may legally entitled to do as it is what is reasonable and equitable to do under the circumstances.

Let's assume you take the $3,500 and file for divorce by giving it as a retainer to your chosen Rhode Island Divorce lawyer.  Legally you are within your rights, but what if that same account pays for the mortgage and as a result of your decision the mortgage can't be paid, you and your spouse incur late fees and the credit for you and/or your spouse is damaged as a result.  A Rhode Island Family Court judge might not consider that your choice to take the $3,500 was fair, equitable or prudent under the circumstances in light of the results. 

So what might happen?  The Rhode Island family court judge might hold you responsible for the mortgage payment and any late fees and possibly even the resulting damage to your spouse's credit.

What if you are a joint holder on the bank account but you contributed only about $800 to the $5,000 that is in the account? 

Do you think a Rhode Island Family Court Judge would consider it equitable for you to remove $3,500 from the joint bank account to divorce the spouse who put the majority of the money into that account?

Is it possible the judge that is assigned to your Rhode Island Divorce matter might see you as having removed $2,700 of your spouse's money in order for you to divorce him or her? 

This is often one of the most crucial and one of the earliest decisions a spouse must make in the divorce process and it is one that should be thought about carefully because it can make a difference.

Ask yourself...

1)  What else is this money normally used on that I am considering taking?
2)  How much have I contributed to the money I am considering taking?
3)  Is the amount I am taking more than half of what is in the account?
4)  Will taking this money prevent the payment of usual and necessary expenses?
5)  What damage, if any, will taking this money cause to me, my spouse, our children, our assets?
6)  Could I be held responsible for this money once the divorce is filed?

All actions have consequences.  A good Rhode Island Divorce lawyer can counsel you best on whether or not it's best to . . . "take it or leave it."

Authored by:

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

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

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


Rhode Island Divorce Tip: Get a Divorce Lawyer!

The title of this Rhode Island Divorce tip article isn't intended to be self-promotion, although if anyone comes to my door I will consider their case.

However, this tip is meant in all seriousness and should be taken seriously. 

The fact is, that every lawyer licensed to practice law in the State of Rhode Island can prepare a divorce and put it through the Rhode Island court system.

So where's the tip, right?

That's it!  Every lawyer is licensed to put divorces through the court system. . . but should they?

The Rhode Island Supreme Court licenses all of us as attorneys in the general practice of law, including me.

When attorney's advertise or promote themselves in a specific area of law it is because they have chosen to do so and NOT because they are particularly good at it.

That is why I tell you to get a 'Divorce' Lawyer.  If you are going to spend money to protect your rights, then make sure that you spend it on an attorney who regularly practices divorce and family law before the Rhode Island Family Courts.  Regularly does not mean once or twice a month in my estimation.

Let me give you an example.  I have had a case with an attorney in the past few months who clearly is NOT a divorce attorney.  The attorney used the wrong summons, an ancient divorce complaint form, requested child support for a 20 year old daughter, and was seeking alimony for a woman without any disabilities with a Masters Degree in Culinary Arts.  These are only four (4) of the nine (9) glaring mistakes I found on the initial divorce package that my client received.

A divorce will affect your life, your finances, your retirement benefits, your relationships with your children and more.  Be sure you entrust something this important to an attorney who practices family law regularly and can answer most of your questions intelligently without a bunch of double-talk.

Authored by:

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

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

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


Rhode Island Divorce: What is Condonation?

Brad and Sandy have been married for 12 years.  Brad feels a bit neglected by Sandy who has been
spending the vast majority of her time with the kids.  Brad tells Sandy that it's bothering him
and that he feels that they need more quality time.

Sandy continues to spend the vast majority of time that she has available with their children.  Brad
starts working out at Gold's Gym in his spare time and meets Katie, a slim blonde haired
aerobics instructor.  They strike up a friendship and as the months continue with Sandy spending
time with the children Brad strays and has a hot evening with Katie.

Sandy finds out about it and is heartbroken.  Brad talks to her and reminds her that this might
not have happened if she had been a bit more receptive to spending time with him.  Sandy starts thinking
about all the times Brad tried to spend time with her and realizes she's been preoccupied with the
children a bit.  She and Brad talk things out and rather than kick him out she allows him to remain
in the house, continues to share the same bed with him and has more regular intercourse with Brad.

Brad, however, likes the way it feels when he works out and he bought a 2 year membership to
Gold's Gym so he keeps going to that gym.  Of course, Katie is still at Gold's Gym because
she works there.  Sandy finds out that it was Katie from the gym that Brad slept with.  She
is furious and demands that Brad quit the gym.

Brad has told Katie there's nothing between them and Brad hasn't made any advances at all.

Still, Sandy is very upset and doesn't want Brad around Katie.  Brad won't quit the gym as she demands.  Sandy changes the locks on the house and files a Complaint for Divorce in the Providence Rhode Island Family Court alleging infidelity.

Here's the problem:  Sandy has participated in condonation.  By taking Brad back after the affair and particularly by having intercourse with him as husband and wife, she has condoned his actions and essentially nullified any basis they have for the actual breakdown of the marriage.

Thus, condonation is when one spouse, who is aware of the infidelity of another spouse, takes
that spouse back and has intercourse as if the marital relationship had never broken down.

Condonation is a defense to a complaint for divorce based on infidelity that occurred before the spouses
got back together.

Authored by:

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

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

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


Rhode Island Divorce: Guardian Ad Litems for Adults

Authored By: Attorney Christopher A. Pearsall, "The Rhode Island Divorce Coach" 

Appointing a guardian ad litem for adults in Rhode Island divorce cases isn't very common but it does occur.  Typically a guardian ad litem is an attorney (though the guidelines have changed recently to include non-lawyers particularly experienced and trained in dealing with people and issues requiring a guardian's skills) appointed by the court to represent the "best interests" of the individual and to make recommendations to the court as to what is in the person's best interests.

Now I put "best interests" in quotes because it is significantly different from simply representing the individual.

When an attorney or other person represents an individual they generally speak for that individual and advocate for exactly what that person wants.  That is not what a guardian ad litem does. 

Using appropriate factors the guardian ad litem uses his or her judgment to review he circumstances, speak with the individual, look at the case, review pertinent caselaw, perhaps even review medical records and ultimately recommend to the court what should be done in the "best interests" of the person that they are appointed to be the guardian for.  This is true even if the recommendations to the court are entirely contrary to what the individual wants done.

Thus, if John and Sarah are in a divorce and Sarah has a multiple personality disorder and goes back and forth between wanting one day of visitation with her children per week or 2 overnights and 3 full weekends per month for her visitation then the court might determine that Sarah, even with the assistance of her lawyer might not be in a correct state of mind to make the best decision for herself and for her children.

As a result, a judge may order that either Sarah, her children or both... have Guardian Ad Litems appointed for that proceeding.

Assume for a moment that Sarah has a guardian appointed and that the guardian for Sarah, after reviewing all the evidence in her Rhode Island divorce case, her medical records, etc.... that it would,  in fact, be best that she see her children more often, yet the guardian finds that Sarah has not been taking her prescribed medication to keep her condition under control and has missed over half of her counseling appointments.

Sarah's guardian ad litem may recommend to the court that Sarah have only one visit per week with her children until she shows that she can take her medicine and attend counseling on a regular basis to promote Sarah to make more progress for herself and for the benefit of a healthier relationship with her children.  This could very well be against Sarah's outrage and protests.

It is important to understand that in a Rhode Island Divorce proceeding, a Guardian Ad Litem represents the best interests of the person they are appointed to serve.  This does not mean they serve at the whim of the client or that they must do what the person they are appointed to represent controls their actions or the position they take.

A lawyer represents the client's interests and follows the client's directions within the reasonable direction of the client.

A guardian ad litem appointed by the court (or ever privately) represents the "best interests" of the person (s) they are appointed for, even if their advice, recommendation or counsel to the court is against the wishes of the person they have been appointed to represent.

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


Rhode Island Divorce Tip: A Checklist Helps

A Rhode Island Divorce filing has it's own forms and its own procedure.  It can help to have all the forms you need.  All the forms you need to file your Rhode Island Divorce Action from any of the Family Court Clerk's Offices.

So what are the typical Rhode Island Divorce Forms you'll need?

1.  Summons Form (in Duplicate)

2.   Complaint  Form

3.  Nominal Track Notice Form

4.  Notice of Automatic Orders

5.  Family Court Statement Listing Children of the Marriage (in Duplicate)

6.  Family Services Counseling Unit Form

7.  Rhode Island Department of Health Report of Divorce Form

8.  Family Court Statement of Assets, Liabilities, Income and Expenses (DR-6)

9.  Affidavit of Non-Military Service (if the Defendant Does not Appear).

There are other forms that are necessary in your checklist depending upon the length of the process.  Hopefully your divorce process will be short.  Let's assume for the sake of argument that you have a very agreeable divorce that leads up to a 10 minute Nominal Hearing where everything is agreed to and is just formally placed upon the record of the court.  In that instance your checklist expands as follows:

10.  You must prepare an Interlocutory Decision Pending Entry of Final Judgment that must be checked by one of the clerks of court for the vital case information and then ordered (signed) by the Judge and Entered by the Clerk.  This is the temporary order of the court that governs the parties before the entry of the Final Judgment of Divorce and should mirror what the judge orders at your nominal hearing.

11.  After the expiration of the 91 day waiting period by statute the Judge may then sign a Final Judgment of Divorce which again is checked by the clerk, ordered by the judge and then entered by the clerk to finalize your divorce.  The final judgment would, with minor exceptions, mirror the temporary order.

Keep in mind that this is just a basic checklist and details change with each case.  Most assuredly Paragraphs #10 and #11 pose the greatest challenge to those people who are representing themselves as well as attorneys who are not well versed in verbage necessary to protect their clients, to include on the record, and insure are in the temporary order and final decree.

Authored by:

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

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

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