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March 2008

What Results Can You Expect from a Seasoned Rhode Island Divorce Attorney?

During the course of my practice as a family law attorney I have represented a considerable number of people in a post-judgment capacity. In several cases I had the opportunity to review divorce judgments by other attorneys. When reviewing the divorce judgments both for background and for the sake of substantive arguments I noted several provisions that were clearly contrary to the client's interests. The provisions also had a substantial affect on the client's rights and what he or she was entitled to at the time of the divorce.

In four (4) separate instances I took time to question the client or prospective client how and why several particularly adverse clauses and orders were included in the divorce judgment. In three (3) of the cases the client or prospective client told me that the attorney he or she had hired had told the person that this was the best they were going to do even if they went to trial, or that this is the way it has to be, or this is the way it is done.

The fourth person indicated that he or she was so upset that he/she didn't care what happened and that the attorney didn't bother to explain to him or her what was going to happen.

The purpose of this page entry is to inform Rhode Island and the public that no family law attorney should be giving you a guarantee of any kind whatsoever regarding a divorce, separation or family law matter regarding the RESULT of any proceeding.

I will tell you that most Rhode Island Family Law Attorneys might disagree with me because it is a virtual certainty that if a person wants a divorce, they are virtually assured of getting one absent some procedural or jurisdictional issue that prevents the divorce.

When it comes to the RESULTS of family court matters, attorneys are not decision makers. We are advocates. It is either parties or judicial authorities like judges and magistrates that make the decisions.

People should be very wary of attorneys in divorce matters who allow a client to decline legal custody or to abandon any portion of the marital assets.

One case in point sticks in my mind from a case I read:

Bill was a primary caregiver of his three sons. He was a Mister Mom and took care of the children full-time for five (5) years while the mom built a career in the corporate world making over $100,000 per year. The parties divorced. They had a house, a joint bank account, and retirement accounts. After Bill's attorney made his recommendations, Bill had no legal custody, received nothing from the joint bank account, received nothing from the equity of the house and signed over the house to his wife, and received nothing from the retirement accounts. Bill received visitation every other weekend but had to drive three (3) hours each way to exercise his visitation with no provision that his wife had to do any of the driving. Perhaps most significantly, Bill was advised simply to waive alimony because men never get alimony. Bill did get his personal clothing and a payment of $10,000 to move out of the marital home.

Bill's attorney apparently told Bill that this was the best he could do.

As I've written about in other articles, if you have a divorce, hire a family law attorney who regularly practices in the family courts throughout Rhode Island.

My humble opinion?  Bill got shafted.  Bill didn't hire a family law attorney.

 

 

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
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.


Issues Rhode Island Divorce Lawyers Face.

The Rhode Island Family Court deals with numerous issues in divorces. There are primary issues that judge's handle on a daily basis that everyone should be aware of.

In understanding these issues it is good to know that the area of Family Law grew out of Contract law. It's fairly easy to see how this occurred. Generally speaking, a man makes an offer to a woman to marry him and be his one and only wife. A woman accepts that offer and promises to marry the man from the offer that he has made her. Traditionally an engagement ring is given to the woman by the man to seal that promise and make it known to others. Later, sometimes with or without a ceremony, formal promises are exchanged between the man and the woman before an officiant. Wedding rings and vows (promises) are exchanged and a marriage certificate is signed by both parties and filed with the State.

It's not hard to see how family law, particularly divorce, grew out of contract law. Though contract law is very diverse and has taken on great depth, it's foundations mirror the marriage process. In a contract there are at least two parties. One party makes an offer. The other party accepts the offer. Usually a document memorializing the promises is signed by both parties, sometimes before witnesses.

Just as there are issues when one of the parties does not live up to their part of a contract. There are also issues that must be addressed when a divorce occurs because it is the division of a marriage contract.

Legal Issues in Rhode Island Divorces

1.  Jurisdiction - Jurisdiction is the power of the court to decide a case based on its authority over the subject matter and the person's involved. The court must make a finding that it has the power over a cause of action, in this case a divorce. Subject matter jurisdiction for divorce is defined by statute in Rhode Island, namely that the Rhode Island Family Court has the jurisdiction to hear divorce cases. The court must also make a finding that it has authority over the persons involved in the action. Personal Jurisdiction is also defined by the Rhode Island Statutes in two ways. Assuming that we're dealing with a divorce based on Irreconcilable Differences, the court must find that one of the parties has been a continuously domiciled resident and inhabitant for the period of at least one year immediately prior to the filing of his or her Complaint or Counterclaim for Divorce, Additionally, the non-filing party must be served by a person authorized by law with the Divorce Complaint and any extraneous documents required by law.

2.  Legal Custody - Legal custody is the legal right of a parent or guardian to make decisions for a child in major areas of the child's life including health, education, religion, and the child's general welfare. The court must make a finding as to whether the parents of any minor children born of the marriage are fit and proper persons to have legal custody of the minor children. Then the court must make a ruling as to who should be awarded legal custody of the minor child or children.

3.  Placement - Placement is the right of a parent or guardian to have a minor child physically living with him or her. The court must make a ruling as to who a child should be placed with/live with. Underlying that court's ruling is the finding that the court's ruling regarding the placement of the minor child(ren) is in the best interests of the minor child(ren).

4.  Child Support - Child Support is the right of a child to be supported by his legal parents or guardians. It is calculated using the Gross Incomes of the parents or guardians of the minor child(ren) and applying them to the Rhode Island Child Support Guidelines. The placement parent is typically the recipient of the child support while the non-placement parent is the payer or the child support. The court must determine the number of children, the gross income of the parties and the amount of child support that is due to the children and must be paid by the non-placement parent.

5.  Equitable Distribution - Equitable Distribution is the family court's equitable division of the assets of the marriage (marital assets) and who should be entitled to what asset or what portion of an asset; and equitable division of all the debts of the marriage (marital debts) and who should be responsible for which debts or what portion of what debt. When apportioning the marital assets and debts of a couple, the family court looks a various factors, including, but not limited to, the length of the marriage, the contribution of each of the parties, and the conduct of the parties during the course of the marriage, to name a few.

6.  Alimony - Alimony is support that one spouse may be ordered to pay to the other spouse. In Rhode Island, alimony is rehabilitative in nature. Alimony is therefore only to be awarded to a person who needs to rehabilitate his or her skills in order to be able to enter or re-enter the workplace at a level of income that can allow him or her to survive. In awarding alimony the court will look at the job history, age, education, skills and the current marketplace to determine if the spouse is in need of rehabilitation. The courts will also look to the contribution of the former spouse to the needs of the person seeking alimony as well as the actual monetary needs of the person seeking alimony and may take into consideration the cost of the rehabilitation.

7.  Health Coverage - This issue is self-explanatory. Health coverage is a major issue these days not only for adults but especially for children. If none is made, the Rhode Island Family Court will make inquiry as to who has provided medical coverage for the couple (or family) in the past and endeavor to make provisions for how medical coverage will continue in the future for both spouses, if possible. The court has particular concern for the continued coverage of minor children and is uniquely aware that not all healthcare costs are covered by insurance, and therefore if it is not brought up by the parties during a divorce proceeding then the court will order provisions in its decree for how the uncovered, uninsured or unreimbursed medical expenses of the minor children will be paid. Generally speaking the court will order each parent to pay a portion of each expense incurred.

8.  Visitation - Visitation is the right of the non-placement parent to have physical placement of the minor child or children, usually for a specified amount of time, or under specified conditions in more extreme cases, before returning the child(ren) to the non-placement parent. When the family court determines visitation for the non-placement parent, the judge will usually consider the age of the child(ren), the amount of prior involvement of the parent, the suitability of the home environment the child(ren) would be spending their visitation in, and any history of violence or criminal conduct relevant to the children or the other spouse. The court encourages spouses to work together to positively reinforce minor children that their place in the family unit is still in tact, it is simply that the parents could not live together happily anymore. Visitation is encouraged by the court as long as it is conducive to productive behavior and reinforces a healthy attitude in the minor children. However, the court will step in and make appropriate orders if it becomes apparent that the visitation is doing more harm than good.

9.  Irreconcilable Differences - This is the basis used by the vast majority of people who file for divorce. The full basis is that there have arisen between the parties irreconcilable differences which have led to the irremediable breakdown of the marriage. This is a fundamental determination made my the court. The court must find, through the testimony, that the parties had differences, that those differences were irreconcilable, that the marriage has broken down, that the cause of the breakdown was these differences, and finally that the marriage is irremediably broken such that the spouses can no longer live as husband and wife. Naturally there are other basis for divorce, however since this is the most frequently used, it is included here for your information.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
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 - Affairs as a Fault Basis for Divorce

Laypeople and even Rhode Island Divorce Lawyers have argued with me that Rhode Island is a "No Fault" state.  A "No Fault" state essentially means that Rhode Island does not recognize grounds that would cause one party to be more at fault for the breakdown of the marriage than the other spouse.

This is not correct.  Rhode Island does recognize fault based grounds for divorce, including adultery, habitual drunkeness, and conduct repugnant to the marriage covenant.

However, the focus of this article is upon an affair and how it fits into a fault based divorce.  This of course relates to adultery during the marriage.  Yet there is a little more to it when it comes to arguments offered by an attorney on behalf of his or her client.

Examples are best illustrative of the type of cases I refer to.

John and Lizzy are married and can't get along.  John moves out to clear his head and get some individual counseling to help his marriage.  After five months of counseling John comes to the conclusion that Lizzy is not the right woman for him.  John meets with Lizzy to tell her that he will be filing for divorce.  Lizzy is furious.  Unexpectedly John meets a nice young woman and they have intercourse.  John hires an attorney to file for divorce.  Lizzy, however, files first and alleges adultery and that John had an affair.

What is the practical impact of the events between John and Lizzy?

Did John have an affair?  Absolutely!

Did John commit adultery?  Absolutely!

Was John's adulterous affair the cause of the breakdown of the marriage?  Any attorney arguing on behalf of John should be arguing "Absolutely NOT"!

It is possible to affair that is adulterous (i.e. intercourse during a marriage with a woman that is not your wife) and yet it is not properly a basis for the divorce because it was not the cause of the breakdown of the marriage.

In order for an adulterous affair to be properly a basis for fault and the grounds for divorce, it must be the cause of the breakdown of the marriage.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
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 Child Support Lawyer - The Child Support Law

It may be helpful for those trying to understand Rhode Island Child Support to actually have the Rhode Island Child Support Statute in front of you.  In fact, if you have to go before the court to a hearing on child support it is best to either know the statute very well or to take a copy of it with you.

The official citation is Rhode Island General Laws §15-5-16.2

§ 15-5-16.2  Child support. – (a) In a proceeding for divorce, divorce from bed and board, a miscellaneous petition without the filing of divorce proceedings, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted by an administrative order of the family court. If, after calculating support based upon court established formula and guidelines, the court, in its discretion, finds the order would be inequitable to the child or either parent, the court shall make findings of fact and shall order either or both parents owing a duty of support to pay an amount reasonable or necessary for the child's support after considering all relevant factors including, but not limited to:

   (1) The financial resources of the child;

   (2) The financial resources of the custodial parent;

   (3) The standard of living the child would have enjoyed had the marriage not been dissolved;

   (4) The physical and emotional condition of the child and his or her educational needs; and

   (5) The financial resources and needs of the non-custodial parent.

   (b) The court may, if in its discretion it deems it necessary or advisable, order child support and education costs for children attending high school at the time of their eighteenth (18th) birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth (19th) birthday. In addition, the court may order child support to continue, in the case of a child with a severe physical or mental impairment, until the twenty-first (21st) birthday of the child.

   (c) The court may, if in its discretion it deems it necessary or advisable, appoint an attorney or a guardian ad litem to represent the interest of a minor or dependent child with respect to his or her support, custody, and visitation.

   (i) In determining whether an appointment should be made, the court shall consider the extent to which a guardian ad litem may assist in providing information concerning the best interest of the child; the age of the child; the wishes of the parents as well as their financial resources; the nature of the proceeding including the level of contentiousness, allegations of child abuse or domestic violence and the risk of harm to the child if a guardian is not appointed; or conflicts of interest between the child and parents or siblings;

   (ii) The guardian ad litem shall be appointed from a list of persons properly credentialed pursuant to administrative orders of the chief judge of the family court;

   (iii) The court shall enter an order of appointment stating the specific assignment the optional and mandatory duties of the guardian ad litem, the guardian's access to the child and confidential information regarding the child, and a provision for payment of the costs and fees of the guardian ad litem;

   (iv) Communications made to a guardian, including those made by a child, are not privileged and may or may not be disclosed to the parties, the court or to professionals providing services to the child or the family;

   (v) The guardian ad litem shall meet with the child, conduct an investigation and upon request of the court shall prepare an oral or written report that contains the procedural background of the case, identification of all persons interviewed and other sources of information, a statement of the child's emotional, medical, educational and social service needs, the child's wishes and other factors relevant to the court's determination regarding the best interests of the child;

   (vi) Any written report of the guardian ad litem shall be marked as a full exhibit in the proceedings, subject to cross-examination;

   (vii) If the guardian ad litem requests confidential health care information and consent is withheld, he or she shall apply to the court for leave to obtain such information after compliance with § 5-37.3-6.1;

   (viii) The guardian ad litem shall be given notice of and should appear at all proceedings in family court that affect the interests of the child;

   (ix) A person serving as a guardian ad litem under this section acts as the court's agent and is entitled to quasi-judicial immunity for acts performed within the scope of the duties of the guardian ad litem;

   (x) The chief judge of the family court shall issue, through administrative orders, rules governing the appointment and performance of guardians ad litem in domestic proceedings.

   (2) After a decree for support has been entered, the court may from time to time upon the petition of either party review and alter its decree relative to the amount of support and the payment of it, and may make any decree relative to it which it might have made in the original suit. The decree may be made retroactive in the court's discretion only to the date that notice of a petition to modify was given to the adverse party if the court finds that a substantial change in circumstances has occurred; provided, that the court shall set forth in its decision the specific findings of fact which show a substantial change in circumstances and upon which findings of facts the court has decided to make the decree retroactive.

   (d) In a proceeding to enforce a child support order, or a spousal support order for a custodial parent having custody of a minor child, the court or its magistrate may assign to the obligee such tangible personal property of the obligor that will be sufficient to satisfy the child or spousal support arrearage owed. The court or its magistrate, after a hearing, shall establish the amount of the child or spousal support arrearage, and the nature and value of the tangible personal property. To effect the assignment, the court or its magistrate may order the obligor to execute and deliver the documents of title which may be necessary to complete the transfer of title to the property, and may order the obligor to deliver possession of the property to the obligee. Whenever the obligor fails to comply with the order assigning the property, the order of assignment shall be regarded as a judgment vesting title to the property in the obligor as fully and completely as if the obligor had executed and delivered the documents of title.

   (2) Any order for child support issued by the family court shall contain a provision requiring either or both parents owing a duty of support to a child to obtain health insurance coverage for the child when coverage is available to the parent or parents through their employment without cost or at a reasonable cost. "Reasonable cost" shall be defined in accordance with guidelines adopted by administrative order of the family court in conjunction with the child support guidelines.

   (3) Any existing child support orders may be modified in accordance with this subsection unless the court makes specific written findings of fact that take into consideration the best interests of the child and conclude that a child support order or medical order would be unjust or inappropriate in a particular case.

   (4) In addition, the national medical support notice shall be issued with respect to all orders issued, enforced, or modified on or after October 1, 2002, in accordance with chapter 29 of title 15. The notice shall inform the employer of provisions in the child support order, for health care coverage for the child, and contain instructions on how to implement this coverage. In lieu of the court ordering the non-custodial parent to obtain or maintain health care coverage for the child, the court may order the non-custodial parent to contribute a weekly cash amount towards the medical premium for health care coverage paid by the state of Rhode Island and/or the custodial parent. The method to determine a reasonable weekly amount shall be addressed in the family court administrative order pertaining to the child support guidelines.

   (e) In a proceeding to establish support, the court in its discretion may, after opportunity for a hearing, issue a temporary order for child support payable into the registry of the court and to be held pending entry of judgment. In the event of a final adjudication requiring no payment or payments in an amount less than those payments which have been made pursuant to a temporary order under this section, the defendant shall be entitled to a refund of all or a portion of the amounts paid.

   (f) In any proceeding to establish support, or in any case in which an obligor owes past due support, for a child or children receiving public assistance pursuant to chapter 5.1 of title 40, the court or its magistrate, upon a finding that an able bodied absent parent obligor is unemployed, underemployed or lacks sufficient income or resources from which to make payment of support equal to the public assistance payment for the child or children, or is unable to pay the arrearages in accordance with a payment plan, may order that parent to perform unpaid community service for at least twenty (20) hours per week through community service placements arranged and supervised by the department of human services and/or the division of taxation within the department of administration or to participate in any work activities that the court deems appropriate. The performance of community service shall not be a basis for retroactive suspension of arrears due and owing.

   (g) In any proceeding to establish support for a minor child whose adjudicated parent is a minor (minor-parent), the court or its magistrate may order a grandparent of the minor child to reimburse the department of human services in an amount not to exceed the total amount of cash assistance benefits paid to or for the minor child pursuant to chapter 5.1 of title 40 until the minor-parent reaches the age of eighteen (18), less any payment made to the department by the minor parent.

   (2) The obligation of reimbursement for the minor child shall be the joint and several responsibility of the minor parent and the grandparent(s) until the minor parent reaches the age of eighteen (18); provided, that each joint obligor shall have a right of contribution against each joint obligor, which right shall be enforceable by an action in the family court.

   (h) All support orders established or modified in the state on or after October 1, 1998, shall be recorded with the Rhode Island family court/department of administration, division of taxation child support computer enforcement system, which maintains the official registry of support orders entered in accordance with applicable administrative orders issued by the Rhode Island family court. The support order shall be recorded whether or not services are being provided under the IV-D state plan.

   (2) The obligee to a paternity or child support proceeding shall be required to file with the family court, upon the entry of the order, the appropriate form as provided by family court which includes the full name of the parties, residential and mailing address, telephone number, drivers license number, social security number and the name, address and telephone number of the employer. The form shall also include the full order amount and date and amount of arrearages if any, the name of the child(ren), their date of birth, address and social security number and any other information as required by administrative order.

   (3) After this, each party is required to file an amended form whenever any of the information contained on the original form has been changed in any way, within ten (10) days of the change. The information shall be entered in the child support enforcement computer system within five (5) business days of receipt of the amended form.

   (i) In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the court may deem state due process requirements for notice and service of process to be met with respect to the party, upon service by first class mail or, where appropriate, by service as specified in the Rhode Island rules of procedure for domestic relations for the Family Court of Rhode Island, of written notice to the most recent residential or employer address of record.


Paying for your Rhode Island Divorce Lawyer

Paying for your Rhode Island Divorce Lawyer doesn't come cheap depending upon who you hire.  Many people feel trapped and unable to file for divorce simply because they don't have the monies to hire a decent Rhode Island Family Lawyer.

However, if you have a credit card, whether it is in your own name or jointly held with your spouse, that credit card can be used to hire the lawyer.

Now most people might worry because all they believe they are doing is increasing their debt.  However, there are a few considerations that may outweigh the use of a credit card to pay for the attorney who will represent your rights.

First, if you don't hire the attorney, might you take a greater loss on your rights than the amount you are putting on the credit card.  Second, if your spouse has an attorney or even if he doesn't, isn't it reasonable to claim that the hiring of the attorney was a necessary expense to help the marriage come to its conclusion fairly and equitably?  Both issues are more than reasonable and it is an entirely valid argument to make to the court that the charge for your attorney was reasonable and necessary and therefore it is a marital debt just like any other.  This is especially true if your spouse was the party filing for the divorce.

If you need to hire a lawyer for your divorce and your only recourse is a credit card, it is probably your best bet to use the card, protect your rights and hire a decent family law attorney.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
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.