Rhode Island Divorce Tips

Whether you are in the middle of a Rhode Island Divorce with a lawyer that you believe is serving your interests well, or you simply have a post-divorce judgment issue that you cannot agree upon with your ex-spouse or the mother of your child(ren), I urge you to consider mediation.

In the Rhode Island family court system when you enter the doors of the courtroom if you do not have an agreement worked out with your spouse then I can tell you four (4) things with a reasonable degree of certainty.

1)  You have lost.
2)  Your spouse has lost.
3)  Your child has lost.
4)  Any paid attorneys in the case have won.

Sadly, people have this idea that they will go into court and blow their spouse or their spouse's attorney out of the water.  If it's not their spouse or ex-spouse then it's some poor child's parent.

Let me emphasize this.  When you walk into family court without an agreement written in stone then you have all lost.  The only one who has won is the attorney who has been paid for his or her services.

Citizens of Rhode Island and those who go before the Rhode Island Family Courts need to realize this fundamental precept and they need to stop grinding the axe with the opposing party and think about the practical consequences of what they are doing.  Drop the emotional baggage!  Leave your anger at the door, focus on the true issue and resolve it before you even enter the courthouse doors.

Stop grinding the axe with your former significant other and if you can't reach an agreement go to a good mediator who will take you through the practicalities of the family court system and help you reach an amicable agreement that each of you can live with.

As Rhode Island Family Court Justice Howard I. Lipsey has wisely told many Rhode Island divorce lawyers and their families in the past.

"I can sit up here and decide this matter for you.  I don't mind doing it.   If you can't put aside your differences and do it yourselves I'll decide what happens to your house, your cars, your family possessions, your assets, your debts, where your children are going to live, and go to school and so on . . . because that's what I'm here to do."

"But let me tell you . . . any decision you two can come to an agreement on is going to be better than anything I come up with.  If this matter has to go to a full hearing on the merits and I have to decide this then you are both going to walk away unhappy.  Trust me when I tell you, any agreement you come up with  is going to be better than any ruling I make about your lives."

A word to the wise . . . stop grinding the axe and mediate your issues.  Do whatever is needed to reach compromise without being clouded by emotion.  Your life, Your Rhode Island Divorce and your family will be the better for it no matter what the matter you have before the court is.

It has been said that a Court "speaks" through its Orders.  Though it may be a phrase that gets tossed around here and there both by lawyers and lay people, there is perhaps no truer statement than when it comes to a Rhode Island Divorce proceeding.

When a lawyer files a Motion in a Divorce proceeding, the lawyer is defining the relief that is sought for the party.  Depending upon the lawyer (or party), the motion will also state the allegations that are being made in support of that motion.

When the Court makes a decision regarding a motion and that decision is formalized in an Order, the Court is speaking to the lawyer, the parties and to the public (to the extent that a divorce case is a matter of public record) as to what the Court has Ordered regarding the relief that has been sought in the motion.

Whether you are drafting a motion in a Rhode Island divorce or an Order memorializing what the court has ordered, it is the wording of each document that is fundamental.

Consider this example.

A Rhode Island Divorce Lawyer's wording in a Final Judgment that has a provision for shared payments for a minor child's medical needs reads as follows:

12.  Both the plaintiff and defendant shall each pay one-half of all uncovered medical provider expenses for the minor child, Casey, until she is emancipated.

It seems rather simple and straight-forward, right?  Okay, let's take a jump into the future to see what problems may occur.

A)  Casey turns 13 and her dentist suggests that her mother consider braces because Casey's teeth are crowding and they will look better and work more effectively if they are properly straightened.  Casey's mother speaks to Casey's father about paying for half of the braces.  Casey's father refuses because he has been downsized from his company and paragraph 12 does not say anything about paying for orthodontia.

B)  Casey chips a tooth during gym at her high school.  Casey's tooth requires repair and a crown so that the remaining part of the healthy tooth is not lost and is protected.  Casey's father wants to save the tooth as recommended by the dentist and he is willing to pay of half of the cost, but Casey's mother doesn't have the money to pay for her half and argues that since paragraph 12 doesn't mention dental expenses that she is not required to pay 1/2 of the repair and crown.  However, Casey's mother could however pay for half of an extraction of the tooth which she offers to do but the dentist does not recommend simply extracting the remainder of a healthy tooth that has a significant function in Casey's chewing process.  Since paragraph 12 doesn't specifically state "dental costs" and the parents don't agree on how the tooth should be handled, they must go back to court to have the court decide.

C)  Casey develops severe asthma in her later years as a teenager.  Casey requires breathing apparatus (i.e. an oxygen machine) at night on a long term basis because medications do not give her the relief she needs at night in order to sleep.  The breathing device and refillable oxygen tanks are devices and are not covered by insurance at all and are costly.  Each parent wants the other to pay for the device because of the tremendous expense of the machine.  Both parents argue that Paragraph 12 relates to "medical provider" expenses and argue that the company that provides the medical device is not a medical provider, it merely sells or rents expensive medical devices.

D)  Casey has difficulty dealing with her parent's divorce, she starts becoming reclusive, won't talk to friends and her grades plummet to bare minimums for passing in school.  Casey's pediatrician refers them to a good divorce counselor for children.  The counselor does not accept any insurances but is known for her great work with children in divorce issues.  The father makes more money than the mother and so the mother asks the father to pay for the entire counseling.  The father agrees to pay half but he will not pay for the entire counseling.  Casey's mother insists that he pay the whole amount.  The father gets angry and reminds her that Paragraph 12 does not say anything about "mental health services" and that he is really no obligated to pay anything and that she should pay the whole thing because that is why he pays her child support, namely to take care of Casey.

These are just a few ways in which poor or inadequate language can affect a child or the parents of a child in future situations. 

Often, people think that divorce lawyers over-complicate things and that things should be kept simple.  A layperson's perspective is understandable but may be misplaced.  The law itself is not simple, it is a complex and ever-changing set of rules that govern our every day life and it is a lawyer's job to reasonably anticipate future events and try to protect his or her client in the best way possible.

A good divorce lawyer in any state is not lazy in his or her use of language.  Words and knowledge are the function of a good lawyer.  Whether you are going to hire a lawyer or act for yourself (in latin "Pro Se Ipso") then you must exercise the knowledge needed of the divorce and/or domestic relations laws in your state and you should exercise the skill necessary to use words that reasonably anticipate future events and protect your client or yourself from future court battles. 

Laws are created by words.  Arguments of attorneys are created by words.  Orders of the court are set forth in words.  Language is the skill of the lawyer and good lawyers are not lazy in language.  A litigant who represents himself or herself in a divorce or other proceeding needs to realize that the words used will govern that family and compliance with the way things are to be done.  If you are lazy in language or if you have retained an attorney who is lazy in the language used (and not simply innocent typos) in Orders, Stipulations, Decrees and Judgments then your future may be filled with headaches you never anticipated because you didn't use the right language.

A Rhode Island divorce can be traumatic even if you have a lawyer to help you through it.  There is no doubt that some people are more fragile than others.  Some women who have been "jilted" or "scorned" may be angry, experience denial or otherwise need counseling.  Some men who have been good providers and faithful for years may find that they need some mental health services to get through a difficult divorce when they just don't understand what went wrong in their marriage.

Though it is often difficult for most people to deal with divorce, some people seem to get through it just fine even if they are not the party who filed the divorce action.  Experiences are not only varied but they are interesting to note.

Yet what is not so interesting, nor enjoyable is when Rhode Island family law lawyers represent a client and help them to achieve what may be self-centered goals by helping them create a situation where none existed before.

An example is perhaps the best way to illustrate this.

Peter and Claudia have been married for 18 years.  They have no minor children and own a home together.  Peter files for divorce which Claudia claims is "out of the blue" and a "complete shock to her" even though Peter has approached her numerous times over the last year about how unhappy he was with their relationship.  Apparently Claudia attributed it to a mid-life crisis or something Peter would pass through.  Peter files for divorce.  Claudia had been working for the past ten (10) years and she is upset and depressed about the divorce filing.  Claudia takes time out of work and begins thinking and re-thinking why Peter would do this to her.  Claudia considers that there must be another woman.  Claudia also considers that Peter should have done more in the marriage to make it work or that he should have suggested counseling.  Claudia gets angry and then more upset as thoughts of the last 18 years run through her mind. 

This is not an uncommon thought process for a woman to go through. 

Claudia returns to work but her mind isn't on her work as it should be and her work just isn't up to par.  Claudia's boss mentions it and Claudia is now fearful for her job security.  Claudia consults and hires a divorce attorney who suggests that she go to a psychologist or a mental health counselor about her feelings.  Claudia takes the attorney's advice and goes to an individual and marriage counseling specialist.  The counselor confirms that Claudia is understandably depressed by the divorce situation.  Claudia feels better after going to the counselor and continues to see the counselor on a weekly basis.

Claudia is advised to take an extended leave from work to deal with her divorce and the emotions she is going through.  Claudia continues to go to counseling.  After a month or so Claudia's attorney starts arguing to the court that Claudia should receive alimony from Peter for at least two years.

Peter's attorney asks for the reason why Claudia should be awarded alimony.  Claudia's attorney is adamant that Claudia is now in a deep depression, has lost time out of work and is unable to do her work effectively as a result of Peter's filing for divorce.  Claudia's attorney argues to the judge that if he can prove Claudia's depression and that it resulted from the divorce filing then Claudia needs a recovery period and needs to rehabilitate her mental state to be able to function in the working world again.

Situational depression is a common side effect of most divorces.  However, to argue that alimony should be awarded because one party has an adverse reaction to a divorce filing is essentially punishing the payer spouse merely for filing for divorce because the relationship has failed.

Yet it has been argued by some Rhode Island divorce lawyers that rehabilitative alimony is justified for a spouse who gets situational depression as a result of the divorce filing itself.  Regrettably, some Rhode Island family court judges have bought into the argument if it is adamantly argued with the right tenor and the right documentation. 

An important tip is to note when the onset of the depression symptoms occurred.  Even if the depression relates directly to the breakdown of the marriage, the lack of a diagnosis of chronic depression by a psychologist, depression is not and should not reasonably a basis for rehabilitative alimony, especially for those spouses who were previously capable of earning an income and only incur difficulty as a result of the divorce filing or the breakdown of the relationship. 

A person's inability to cope with the actual legal proceeding that precipitates the alleged depression is not a reasonable basis for alimony.  No rehabilitation is needed to acquire more education or new skills or for entry into the workforce.  These are the fundamentals for rehabilitative alimony in Rhode Island and as such alimony based upon anything other than a longstanding chronic depression should be opposed strenuously.  Most judges will see this for what it is if you give evidence of the timing of the depression but be wary.  A difficult battle may be on the horizon if Alimony is a primary goal of your spouse.

It's no secret to Rhode Island divorce lawyers that after practicing for many years they tend to see it all.  What may be most perplexing is how a divorce can change a once timid and/or loving spouse into your worst nightmare.

It doesn't happen to everyone in a divorce but if someone were to measure the number of times it does happen, you might just be shocked.

What you see on televisions is sometimes not far from the truth.  One spouse feels scorned and threatens to destroy the other one.  A man who has been cheated on after providing for his wife for 20 years suddenly threatens to kill her.  Children are sometimes manipulated as one parent tries to get the children in the hope of not having to pay child support and bleeding the other parent dry.  It isn't uncommon.

The best tip is to be aware that it does occur.  The worst thing that could happen is for you to think that you're one of those people who it would never happen to you in a million years and suddenly you are caught off guard, thrown into shock and have no clue how to address the situation leaving you just floundering in a sea of emotion and circumstances that have spun completely out of your control.

People are capable of anything.  Divorce can be a trigger.  Anticipate the worst.  If you don't, you may find yourself reeling from the consequences.  Anticipate . . . anticipate . . . anticipate. . . . consider that your spouse may fly off the deep end even if it is totally out of character for your spouse.

In the end, be prepared.  Know this exists and be prepared for it.

Today's Question:

    For the sake of this question I'll call myself William.  I have a 401k that I began 10 years before I got married.  It had about $75,000 in it before Tammy and I got married.  We've been married for the past 13 years and my 401k is up to about $285,000.  I'm concerned about being able to pay my attorney's fees.  I'm also concerned because I want to keep the house my wife and I live in.  The house has been in our family for generations.  I don't think I can get a loan to buy out my wife's interest in the house because my credit isn't so good.  We have about $140,000 in equity in the house.  What can I do to save my house?  One attorney has told me that Tammy will get 1/2 of my 401k and that I can't touch my 401k monies while the divorce is pending.  This doesn't seem fair.  It looks like I'm going to lose 1/2 of everything I built.  I know Tammy is entitled to part of everything but it seems like I'm being left with no options but to lose the house and 1/2 of my 401k.  Is there anything I can do here?

    - William  (Coventry, RI)

Today's Answer:

    William, I can tell you that you have more options than you may think.  Ultimately, your 401k plan is the key to resolving your difficulties.  A 401k if much more versatile than a pension, annuity, IRA or any other investment vehicle. 

    First, Check with your 401k Plan Administrator.  Ask whether you are allowed to take a loan up to a certain percentage of your vested 401k balance.  Then confirm the amount of your vested balance and the allowable loan that you could take from your vested balance.  Loans on 401k plans are typical and are usually limited to 50% of your vested balance.

    For the sake of example let's assume this is a typical 401k plan and you can take a loan of up to 50% of your vested balance.  Based upon the numbers you have provided, I would be willing to venture a guess that you may be told that the entire $285,000 is vested and that your maximum allowed loan at 50% would be limited to $142,500.  You should also find out how much interest will be charged on whatever loan you take out and the maximum repayment period.  Of course you will be repaying yourself the interest so this is a considerable benefit to you.  Plus, you can check with your accountant to see if any of the 401k interest is potentially deductible because it is used as a buyout of your wife's interest in the real estate and adds to your adjusted basis in the property.

    Now William, there are a few things to take into consideration but careful planning will eliminate difficulty.  If you are already in the midst of a divorce then your are bound by the Automatic Orders of the Court.  These Orders prevent you from spending, hiding or doing anything out of the ordinary with any assets without the written consent of your spouse.  You may not unreasonably incur any debt that is not in the normal course of your home or running your business except for paying your attorney's fees.

At the outset this looks like it poses a massive hurdle but your case is a bit different.

The Rhode Island Family Court has the power of equitable distribution over the marital estate.  This means the marital assets and debts of the parties.  This does not include pre-marital assets.  You have already disclosed that your 401k had a value of $75,000 before you got married.  This $75,000 is a premarital asset.  These funds are yours.  Additionally, any appreciation relating solely to those $75,000 is also a non-marital asset because they are funds generated purely by virtue of a the pre-marital asset without further contribution from the parties.  Thus if over the 13 years if your 401k averaged 7% per annum return then your $75,000 has roughly appreciated to $180,738.38 making the marital portion of your 401k $285,000 minus $180,738.38 which equals $104,261.62.    The $104,261.62 should roughly be the true marital portion for distribution by the Rhode Island Family court.  It is certainly viable for you and your attorney take the position that this should be undisputed and that $180,738.38 is truly a premarital asset to which your wife is not entitled. 

If you are allowed a 50% loan to vested monies then you have in excess of $90,000 that you can take as a loan for both your attorneys' fees and to buy out your wife's interest in the house.  If your wife's share of the house equity is agreed to be $70,000 then even with poor credit you should be able to secure an equity line of credit or a refinance of the house even if you take out a loan of $40,000 and put $35,000 toward the house and rely upon $35,000 of the house equity to balance out the loan.  This also leaves you with an additional $5,000 for attorneys' fees.

If you take out a loan of $35,000 as suggested, then you still have $145,738.38 that should remain a pre-marital asset that you are entitled to claim as a pre-marital asset.

Keep in mind that this is an arguable position.  Technically, it is a judge's role to determine whether an asset is marital, non-marital, premarital or otherwise exempt from the court's equitable distribution power.  However, when the issue is as clear cut as this in accordance with the statutes, most judges will not penalize an individual for following the advice of his attorney in order to settle a matter on the judge's calendar.

If the judge disapproves of the manner in which you proceed and finds the circumstances to require the court's authority, the most likely conclusion is that the Judge will consider any disproportionate amount as an offset to your spouse against the marital estate.  However, pursuant to the Rhode Island General Laws this is an arguable position that you should be able to take and use without the written permission of the other party or an order of the court, especially if it is used in an effort to settle the case. 

However, if the funds are used for purposes other than settling the case, be prepared for the court to take more appropriate actions to punish you as an abusing party even if you are within your legal rights.