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March 2008

An Insight into Divorce & Marriage by a Attorney Christopher Pearsall

Marriage is perhaps one of the most interesting ceremonies in our culture.  Many of us plan for months to get everything perfect.  Flowers, Catering, Food, Photographer, Wedding Dress, Tuxedos, Bridesmaid's Gowns, Picture Locations, Table Centerpieces, Reception Location, Transportation, Invitations, Bouquet, Wedding Rings, Honeymoon, Wedding location . . . and so much more.  Thousands of dollars are spent and hundreds of hours are spent all for a single day of formality for two people to stand up in front of their friends and family and become joined as husband and wife through a ceremony of their choosing.

Yet choosing a soul mate for life is about the hardest thing you will ever do and many people don't put half the time as it takes to plan a wedding into the actual selection of their chosen soulmate.  It's interesting.  It is as if our physiological feelings about someone when we're with them just seem to override everything and tell us . . . this is the person.  There's no real thought about it.   There's no balancing of the pros and cons about your preferences versus this other person's preferences.  It seems to be more your feelings and your interaction with that person at the time that govern your decision.

Strangely, this set of feelings about the person that lead us to marry them are the same things that leave us blind to those things about the person that annoy us or that we don't even bother to question until it is too late.  After all, marriage is supposed to be a life-long decision and commitment.  Yet so many times one or the other of the couple, or even both, are blind to the others flaws, many of which they couldn't live with for a lifetime.

It is not a wonder under circumstances like these that when such a massive decision as marriage is made with less consideration than say . . . buying a house for example . . .that more than 1 out of 2 marriages fail.

What is even more perplexing is that once the couple enters  the family court for their divorce proceeding, they sometimes expect it to be severed and completed in a heartbeat.  What must be considered is that now the court must determine the conduct of the parties, whether children need to be provided for, whether there are pre-marital or non-marital assets, whether the parties can sustain themselves financially, what will be come of what assets, and whether one party should be given more assets or more debt than the other based on his or her conduct. 

Compare what the court must do to what it takes to plan a marriage and the time constraints and typical number of decisions can be fairly comparable to one another.

Is it possible for a marriage to happen overnight?  Almost.  Is it possible for a divorce to happen overnight?  Not in Rhode Island.  In the same way that there are many issues that should be considered by the parties before getting married, there are many questions and just as many answers that the judge must come up with to insure both parties go their separate ways equitably.

The analogy, although possibly long-winded.  Is that it takes time to get a divorce just as it takes time to plan a marriage.  The emotions may be different which may cause further divorce delays.  Yet parties in a divorce should plan to be patient otherwise they should plan for the process to take longer.


Copyright 2000 to Present - Christopher A. Pearsall, Esq. (All Rights Reserved)

Get them Back to Work from a Rhode Island Divorce Lawyer

After eight (8) years as a Rhode Island lawyer dedicated to divorce and family law and another thirteen years in law here in Rhode Island, there is one situation that I have seen consistently and it almost always results in an unhappy husband paying alimony to his spouse.  The scenario goes pretty much like this one.

John and Melissa get married and have a child.  Melissa stays home to take care of the child because daycare expenses would be too costly and Melissa doesn't want her child raised by someone else.  Melissa promises that when the child gets into school full time that she will get a job or return to work to help with the family income.  The day comes when the child is in full time school and Melissa refuses to go back to work.  She wants to be able to bring the child to school, participate in school events during the day and pick the child up after school.  This situation often ends with a very upset husband and may eventually lead to the husband filing for divorce. 

John files for divorce and Melissa who has not been working for years seeks alimony and child support as the primary caregiver for the child.  John is upset.  John can't understand it.   He pulled the financial weight for his family for years and now when he wants to get out of the relationship he might be expected to pay for several more years. 


Just because Melissa stayed home with their child and refused to return to work as she had agreed to help out their little family?

The answer is a resounding "NO".

It is not because Melissa broke her promise.

Practically speaking it is because John allowed her to stay home without contributing to the household income.

Many families are economical.  Attorneys understand that.  Yes, I understand that.  However, everyone should take into consideration that more than one out of every two marriages end in divorce.

When you have that kind of figure working against you then you have to consider the consequences if your marriage happens to be one of those that don't make it.

So what is the answer?  Families need two incomes even if it means the majority of one income goes to daycare for a while.  Women can earn as much as men these days and the old ways of the mother just staying home with the child are disappearing.  Frankly, they should be.

The answer to John's predicament and for many other men is to get the mother out and working for your financial future as soon as possible after the child is born.  It is not a right of a mother to stay home with the child any more than it is a right of the father not to pull his weight with diaper changing and late night feedings.

In the end, if John, or you, or your neighbor Tim, is one of those two marriages that isn't going to make it for 50 years or so and you end up in Rhode Island Divorce Court, then if you let the mother stay at home with the child then prepare to pay alimony for a few years.  At that juncture you have no one to blame.  You should be informed.  We balance the pros and cons on house buying.  We also do it on whether we take a job or not.  Why shouldn't we expect to do it with a marriage?  After all, isn't it one of the biggest decisions in our lives?!

Authored by:

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

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

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 based on Rhode Island and 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 Lawyer on Divorce Appeal Standards

There are two important standards that laypeople should know, especially if they hire an attorney to protect their interests.

1.  You are not protected so that you can appeal if your attorney does not place your issues "on the record".  In a divorce or family court proceeding issues are "on the record" if they are taken down by the stenographer.  What does this mean?  It means that chambers conferences where the court stenographer is not present and taking down the information discussed in the judge's chambers are not "on the record".  It means that discussions with the judge at the bench in court are not "on the record" unless the judge specifically tells the court stenographer to take down the information.

2.  When you are protected with items that are "on the record", if you have to appeal any particular issue, the Rhode Island Supreme Court has consistently ruled that they will not address an issue that is raised for the first time on appeal.  In other words it wasn't "on the record" . . . and . . . the Rhode Island Supreme Court has also consistently ruled that it will give great deference to the trial judge as the trier of fact (since he or she was the person in the best position to evaluate the demeanor, character and testimony of the witnesses) and the factual findings of the trial judge  will not be disturbed absent some gross inaccuracy.  The trial judge's determinations of law will be upheld unless it is shown on appeal that the trial judge clearly abused his or her discretion when applying the law or the facts to the law.

Every litigant before the Rhode Island Family Court should keep in mind whether they are financially able to appeal issues if the trial judge does not rule their way.  If so, those same litigants should be vigilant that major issues are placed "on the record" and aren't discussed at the bench or behind closed doors in a chamber's conference.  If your attorney doesn't preserve your issues for appeal on the record if you lose, what was the point of beginning the battle to begin with?  Just the chance of winning the very first time?

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall a.k.a "The Rhode Island Divorce Coach"™

Rhode Island Divorce Attorney - Sale of the Marital Home, Can it be Deferred?

Yes, the sale of the marital home can be deferred if certain conditions are met.  Generally speaking, the court will defer the sale of the marital home in a divorce when, after considering the finances of the parties, there are enough financial resources to sustain the home, both parties can still sustain reasonable standards of living, and deferring the home is in the best interests of the minor child(ren).

The definitions and actual standard as provided by law are set forth in Rhode Island General Laws §15-5-16.1.1 which is as follows:

§ 15-5-16.1.1  Deferment of sale of home. – (a) As used in this section, the following words and terms have the following meanings unless the context indicates another or different meaning or intent:

   (1) "Custodial parent" means a party awarded physical custody of a child.

   (2) "Deferred sale of home order" means an order that temporarily delays the sale and awards the temporary exclusive use and possession of the family home to a custodial parent of minor children, or children for whom support is authorized under this chapter, whether or not the custodial parent has sole or joint custody, in order to minimize the adverse impact of divorce on the welfare of the children.

   (3) "Resident parent" means a party who has requested or who has already been awarded a deferred sale of home order.

   (b) In any case in which one of the parties has requested a deferred sale of home order pursuant to this section, the court shall first determine whether it is economically feasible to maintain the payments of any note secured by a mortgage or other liens, property taxes, or insurance for the home during the period the sale of the home is deferred. In making this determination, the court shall consider the resident parent's income, the availability of spousal support, child support, or both spousal and child support, and any other sources of funds available to make those payments. The intent in requiring this determination is to avoid defaults on the payments of notes and resulting foreclosures, to avoid inadequate insurance coverage, to prevent deterioration of the condition of the family home, and to prevent any other circumstances which would jeopardize both parents' equity in the home. After making the determination that it is economically feasible to consider ordering a deferred sale of the family home, the court in exercising its discretion to grant or deny a deferred sale of home order, shall consider whether it is in the best interest of the child or children.

   (c) Upon a determination pursuant to subsection (b) of this section that a deferred sale of home order is indicated in order to minimize the adverse impact of divorce on the child, the court may make such an order. The order shall include the duration of the order, may include the legal description and assessor's plat and lot number of the real property which is subject to the order, and may be recorded in the office of the registry of deeds of the city or town in which the real property is located.

   (d) The court may make an order specifying the parties' respective responsibilities for the payment of the costs of routine maintenance and capital improvements.

   (e) Except as otherwise agreed to by the parties in writing, the following shall apply:

   (1) A deferred sale of home order may be modified or terminated at any time at the discretion of the court.

   (2) If the party awarded the deferred sale of home order remarries, or if there is otherwise a change in circumstances affecting the determinations made pursuant to subsection (b) of this section or affecting the economic status of the parties or the children on which the award is based, a rebuttable presumption, affecting the burden of proof, is created that further deferral of the sale is no longer an equitable method of minimizing the adverse impact of the divorce on the children.

   (f) In making an order pursuant to this section, the court shall reserve jurisdiction to determine any and all issues that arise with respect to the deferred sale of home order including, but not limited to, the maintenance of the home and the tax consequences to each party.

  • Published at the Rhode Island General Assembly Website

Rhode Island Divorce Lawyer - How might equity loans be treated by the RI Family Court?

Equity Loans are very similar to mortgages. Usually they are loans secured by something of value, traditionally a piece of real estate that is worth more than the loan being taken out. A mortgage for an equity loan is typically recorded and though it can be a first mortgage on the property, it is often a second mortgage.

Equity loans can also be extended upon other collateral of value, such as bonds, stocks, valuable business equipment, jewelry and the like.

Fred has been married to Rachel for 26 years. Over the years they have accumulated a nice house along the water which is paid off. Fred has a 22 Foot Scooner that has a galley kitchen and sleeps six (6). Rachel has four (4) collectible fur coats that she has kept in mint condition and lots of diamond jewelry including necklaces, anklets, bracelets and rings that she only wears for special occasions.

Fred has kept the finances, but he hasn't done it very well and after he and Rachel retire, he realizes they have no liquid cash coming in to sustain their lifestyle.

Fred panics as Rachel tells him she's going shopping at Carte Blanche. Scrambling to figure out what to do Fred finds the deed to his schooner and grabs the three most valuable peices of jewelry that he bought for Rachel.

While Rachel is gone Fred runs out and has the jewelry appraised and gets a value assigned to his Scooner. Fred then runs down to Focus One Finance and applies for a loan by pledging the equity in the jewelry and his schooner. Focus One Finance holds the title to the schooner and records a lienholder statement against it. Focus One Finance also holds the jewelry and tell Fred that he'll get all of this back when he satisfies his Equity Loan terms. Focus One Finance wires $85,000 to Fred's bank just in time for Rachel to make a purchase with her MasterMoney Card.

Fred rushes back home feeling that he has put an end to the crisis.

Two weeks later Fred gets his first Equity Loan Statement. He doesn't want to pay it out of the monies he got so he puts it in a drawer. A month later another statement comes with a double payment due and penalty fees. Again Fred stuffs it in the drawer, not wanting to deal with it at this time.

Finally in the third month Fred knows he can't avoid this anymore, but rather than pay the statement he waits until Rachel is out of the house and he takes her two best fur coats and runs down to Focus One Financial. At first Fred offers them as payment and tells Focus One that the fur coats are worth much more than the payments due, but Focus One Financial wants payment ...they do not want to barter. Financial Focus One states that the best it can do is re-finance his loan and capitalize the interest and penalties and hold the garments as additional collateral since he did not make the first three payments. Fred agrees and returns home.

A week later Fred and Rachel are invited to a formal dinner event. Rachel immediately notices that several of her best peices of jewelry are gone and so are her fur coats. Rachel insists on calling the police but Fred urges her to keep looking. After about an hour, Fred breaks down and tells Rachel the whole story. Rachel is furious! She demands that he go right down and get her furs and her jewelry back immediately. Fred goes to Focus One Financial but they will not release the items until he fulfills the Equity Loan. Fred checks the checkbook. There is only $5,300 remaining in the account. Fred goes back and checks all the entries and they are all purchases that Rachel made for herself.

Fred returns to explain to Rachel why he can't get the items back. Rachel quickly packs a suitcase, takes her debt card and their check book and leaves.

The next afternoon Fred is served with divorce papers. Fred goes down to the bank to get some monies to hire an attorney. The ATM gives him $300 and then says $0 balance. Rachel had withdrawn the other $5,000, presumably to hire her attorney.

How might this mess be dealt with by the Rhode Island Divorce Court?

Fred didn't tell Rachel about the equity loan. Is Rachel likely to be held responsible for the equity loan given that circumstance?

Fred pledged Rachel's jewelry and fur coats as collateral against the equity loan. In the divorce proceeding could Rachel get them back from Focus One Financial without paying off the equity loan?

Rachel used up virtually every dime of the equity loan money. Even if Rachel didn't know where the monies came from, might she be held responsible for the loan as well since she received the benefit of the monies?

Is the Equity Loan a marital debt such that the Rhode Island Family Court has the power to determine its apportionment and assignment, or does Fred's conduct in deceiving Rachel render this his own private debt?

There are three (3) other issues (Questions) in this case that you should spot.  Can you see them?

Authored by:

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

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

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 based on Rhode Island and 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.