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November 2008

A Rhode Island Divorce Lawyer's Second Tip for the Alimony Language in a Marital Settlement Agreement or Family Court Decision!

This Rhode Island divorce tip article is a follow-up to my first tip article which may be found at http://www.rhodeislanddivorcetips.com/2008/11/rhode-island-divorce-lawyers-tip-on-alimony-language.html

This first tip article is helpful, if not essential, to helping you understand rehabilitative alimony in Rhode Island.  Therefore I recommend that you read my first alimony tip article if you do not already know how Rhode Island law treats alimony in general.

Lanuguage is crucial in both Rhode Island Settlement Agreements and especially in the Rhode Island divorce proceedings when it comes to alimony awards and alimony waivers.

Whether you are representing yourself or you have a Rhode Island lawyer to represent you in your divorce proceeding, it is best to be vigilant when it comes to the language used by you, your lawyer and even the judge.  In this divorce tip article the crucial word you should focus on is "non-modifiable."

Leaving out the word "non-modifiable" in your Marital Settlement Agreement or failing to clarify to the judge a request for the court's order to include the word "non-modifiable" could lead to hazardous consequences.

Consider this Rhode Island Divorce example about Mr. and Mrs. Lawyers:

Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of $400 per week for a period of three (3) years in their Marital Settlement Agreement and he has testified to that on the record of the court.  Mrs. Lawyers agrees that Mr. Lawyers' testimony is accurate and that $400 per week for three (3) year is precisely what they agreed to in their Marital Settlement Agreement.

Mrs. Lawyers testifies that she wants to waive alimony after that three (3) years has been paid, that she knows that this waiver would be permanent, and that she believes she will be able to sustain herself at the end of the three year period and therefore she would like the court to grant her permanent waiver.

At the end of the hearing, the Court orders the following:

Mrs. Lawyers is awarded weekly alimony of $400 per week for a period of three (3) years from Mr. Lawyers and that upon completion of the three (3) years Mrs. Lawyers' request for waiver of alimony is granted and she waives alimony permanently.

Do you notice that the word "non-modifiable" does not appear anywhere in the excerpt of the testimony above?  Do you notice that Mrs. Lawyers confirmed that it is "precisely what they agreed to" in their Marital Settlement Agreement? 

Let's assume this is correct and that the Marital Settlement Agreement doesn't contain any reference to alimony being "non-modifiable". 

Now, imagine that Mr. Lawyers secures a job that pays considerably more than his last job, that he becomes a partner in a very profitable business, that he creates a very successful invention, that Mrs. Lawyers gets into a tragic accident in the first year after their divorce which leaves her with brain damage which prevents her from proceeding with her attempts to rehabilitate herself and become self sustaining.

Choose any one of these events or any other event that you might think of that drastically affects the earnings or abilities of Mr. and Mrs. Lawyers within the three (3) years alimony is to be paid.

What is important here is what Mrs. Lawyers DID NOT agree to!

Even though Mrs. Lawyers waived alimony permanently after the three (3) years of payments, she DID NOT agree at any time that the alimony during those three (3) years would be non-modifiable.

If Mrs. Lawyers wanted to, she could retain a Rhode Island lawyer and once again return to court and request that the alimony she is receiving in those first three years be increased based upon either Mr. Lawyers' increase in his ability to pay more alimony and/or her own decrease in her ability to provide for herself over the long term as planned.

Though the agreement provided for $400 per week of alimony for a period of three years, this merely indicates to the court that this is an amount and timeframe that was either agreeable to the parties or ordered by the Rhode Island family court judge at the time of the divorce.  However, without the word "non-modifiable" before the word "alimony" this DOES NOT prevent Mrs. Lawyers from arguing that neither the parties or the court intended that it could not be modified during that three (3) year period if circumstances changed which warranted a modification of the amount of alimony.

What could this mean for Mr. Lawyers?

If either Mr. Lawyers or his Rhode Island attorney did not add that one word "non-modifiable" then Mr. Lawyers could end up paying $600, $900 or even $1,200 per week to Mrs. Lawyers for the remainder of the three (3) year period, if the Rhode Island family court judge found that Mrs. Lawyers had that need for such alimony and Mr. Lawyers was capable of paying that amount of alimony.

What monetary difference could this make to Mr. Lawyers?

Let's say the court found Mr. Lawyers had the ability to pay Mrs. Lawyers Rhode Island alimony in the amount of $900 per week for the last 28 weeks of the three (3) year alimony period that was agreed upon.  Let's also assume that the court held Mrs. Lawyers to the three (3) year period of alimony because she had validly waived alimony permanently after that three (3) year period of time.

Mr. Lawyers had agreed to pay $400 per week.  Mr. Lawyers is now ordered to pay an extra $500 per week for the last twenty-eight (28) weeks.  This now requires Mr. Lawyers to pay Mrs. Lawyers an extra $14,000 that he hadn't planned on.

To Mr. Lawyers and/or Mr. Lawyers' Rhode Island attorney, the omission of that single word . . . "non-modifiable" . . . just cost Mr. Lawyers $14,000. 

The words you use in your agreement and the words used in the order by the court are crucial.  Care should be taken in drafting any alimony provision in a Rhode Island Marital Settlement Agreement.  Care should also be taken to make sure that the word "non-modifiable" is used by the court in its order, if that is what is intended or expected by the parties.

In this example it was worth $14,000 to Mr. Lawyers.  That's one very costly word, don't you think?

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers


Rhode Island Divorce Lawyer's First Tip on Alimony Language in a Divorce Decision!

In a Rhode Island Divorce proceeding alimony must be awarded or denied by the Family Court Justice.

Since alimony under Rhode Island law is rehabilitative in nature, more often then not it is waived by one or both parties during the course for most Rhode Island divorce proceedings.  

Alimony that is rehabilitative is awarded by the court based upon the recipients need for financial support while he or she (1) re-establishes himself or herself in the working world with existing skills, (2) re-trains himself or herself with skills sufficient to sustain himself or herself with more modern skills, (3) is unable to care for himself or herself due to injuries, illnesses, handicaps or other circumstances that reasonably warrant the award of alimony for an extended period of time because one spouse is unable to care for himself or herself.

Alimony may be agreed to by the parties in circumstances when an award of rehabilitative alimony may be considered inevitable by the parties and/or their lawyers.  In other instances, a spouse may agree to pay rehabilitative alimony to the other spouse because their is an ability to make such a payment, even if the court would not normally award it, and one spouse wants to help the other spouse for a reasonable period of time until he or she regains a financial foothold on his or her own.

 
Whether alimony is by an award of the court or by an agreement of the parties, it is important that the language used by the court for any award of alimony is accurate pursuant to the agreement of the parties or as intended by the court.

The typical example is when an award of alimony is made for a specific amount of money for a specific period of time.  In this instance, clarity of language is essential!

Assume that Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of exactly $400 per week for a period of three (3) years.    Now let's assume that the alimony award is phrased as follows in both the Marital Settlement agreement of the parties as well as the Decision of the Court.  Nothing else is mentioned about alimony.

    "Defendant Mrs. Lawyers shall pay Mrs. Lawyers rehabilitative alimony of $400 per week for a period of three years."

Here is where accuracy in the language regarding the rehabilitative alimony provisions is crucial when it comes to clarifying the Marital Settlement Agreement and/or the Decision of the Court.  If this is the ONLY alimony that Mrs. Lawyers is to receive per their Marital Settlement Agreement, then Mrs. Lawyers MUST request to waive alimony permanently on the record of the court and Mr. Lawyers or his attorney must make sure that the decision of the court is clarified to state that Mrs. Lawyers waives alimony permanently after that three year period.  Either Mr. Lawyers or his attorney should do so even if it means clarifying to the judge BEFORE the hearing or trial is concluded that the award of alimony should involve a waiver of alimony permanently with the exception of that three year period.

Why is this so crucial in a Rhode Island divorce proceeding?

Well, in the first instance it is significant to Mr. Lawyers.  If there is no permanent waiver of alimony by Mrs. Lawyers other than that three year period, then Mrs. Lawyers has a viable legal argument that alimony WAS NOT expressly limited to that three year period of payments because she DID NOT waive alimony permanently.  Therefore, if things aren't going well for Mrs. Lawyers at that time and Mr. Lawyers still has the ability to pay continued alimony, then Mrs. Lawyers might decide to return to court for another 1, 3 or more years of alimony.

In the second instance, if Mr. Lawyers has hired a Rhode Island attorney to protect his interests in the divorce, then the attorney may have made a crucial mistake because he or she didn't make sure a permanent waiver of alimony was made by Mrs. Lawyers.  Unless there was a miscommunication or some other circumstance which explains why the Rhode Island attorney didn't insure the permanent waiver of alimony was made, then the Rhode Island attorney may find himself or herself on the receiving end of a legal malpractice claim.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers


Rhode Island Divorce Lawyer's Tip: Pension's Vested or Not Vested?

If either party in a Rhode Island divorce has a pension then there are various issues you will want to consider.  Specifically, the divorce issue we want to address here is that of "vesting." 

You can find out if your pension is vested for the purposes of your Rhode Island divorce by contacting the administrator of your pension fund and simply asking if your pension if your pension is vested or not.  You also may want to asked your pension administrator when your pension will vest (become vested) just in case the date might occur during the course of your Rhode Island Divorce proceeding.

ISSUE

The Rhode Island family court judge only has the power to order the equitable distribution of marital assets, including pensions. 

If you or your spouse has a pension that is not vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

If you or your spouse has a pension that is vested, what part of the pension, if any, is subject to the Rhode Island family court's power of equitable distribution?

ANSWERS

The only part of a vested or unvested pension that is subject to equitable distribution/division by the Rhode Island Family Court Judge is the "marital portion" of the pension.

The marital portion of any pension is dependent upon various circumstances, including (1) the length of the marriage, (2) the type of pension (civilian or military) and the laws governing it, and (3) whether the pension is vested or not.

While it may be the Rhode Island family court judge's role to determine after trial what the marital portion of the pension may be, it is the job of each spouse and his or her divorce lawyer to present to the court what part of the pension is the marital portion.  Sometimes your divorce lawyer may be able to argue that a larger portion of the pension is actually the "marital portion" if it is to your benefit to do so.  However, if there is disagreement between spouses and/or their divorce lawyers regarding the true manner in which the marital portion should be calculated, proof may be presented at trial.

Proof of the marital portion of the pension that is subject to distribution by the Rhode Island family court may require expert testimony by way of an actuary who substantiates the basis for claim and the amount of it.  Without this information, your Rhode Island divorce judge may not have sufficient information for determining the basis, amount or validity of your claim on that pension.

The issue of whether a pension is vested or not is of substantial benefit to both spouses, the court and an actuarial expert if one is necessary. 

If the pension has not vested at the time of the entry of the Final Judgment of divorce, then the pension payments themselves are not subject to distribution in the future.  Since the pension is not vested then the body (corpus) of the pension is only made up of the contributions made to the pension.  There is no entitlement to the benefits of the pension after it vests simply because a spouse may have an entitlement to a portion of the monetary contributions to the pension.


If the pension is vested prior to the entry of the Rhode Island Family Court's Final Judgment of Divorce, then the benefits of the pension itself provided by the "vesting" of the pension during the marriage are subject to distribution of the Rhode Island family court.

Thus, the family court's distribution power in Rhode island in a divorce proceeding is limited to either (1) the financial contributions made to the pension when it has not vested prior to the entry of Final Judgment of Divorce, or (2) the benefits provided by the pension when it has vested prior to the entry of Final Judgment.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008.  Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law. Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers


A Rhode Island Divorce Lawyers Tip on Your Rights to a Spouse's Accident Claim!

A recent call from one of my Rhode Island clients sparked an interesting issue regarding the client's divorce.  It is not a question that arises as frequently as many others but it does raise its head on occasion because in today's litigious society there are frequent personal injury claims that arise.


ISSUE:

Assume that a wife has a personal injury claim that occurred during the marriage but may be worth a substantial amount of money.  The husband and wife get divorced but neither party discloses the claim as a potential asset that may be part of the marital estate because it was merely a claim at the time they settle their divorce.  Before the Final Judgment of Divorce is entered, a Rhode Island Insurance carrier pays the wife $120,000 to settle the wife's claim.  The husband has his lawyer file a motion in Rhode Island Family Court seeking half of the $120,000. 

What, if anything, might the Husband be entitled to since his Rhode Island Divorce is not yet final?


GENERAL ANSWER:

The answer revolves substantially around the way in which the Rhode Island personal injury claim was settled.  Monies received for medical bills are typically subject to a lien by the medical insurance carrier that must be repaid to that carrier.  Monies paid on a claim that are paid for pain and suffering are intended to make the individual who was injured "whole" and therefore the payment is distinct compensation to something wholly individual to that person and not part of the marital estate.

The only portion of a personal injury settlement that is normally considered part of the marital estate and therefore is subject to distribution by the Rhode Island Family Court judge is that part of a settlement that compensates the wife for her lost wages.  This is because the wages of either party are considered "marital" regardless of which party earns them by the very nature of the marriage covenant.

Thus, the only portion the husband might receive is a possible award of any lost wages the wife was compensated for by the settlement.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall | Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers


Should you file for Divorce in Rhode Island around the Holidays if You Have Children?

I've noted during my years as a Rhode Island Divorce Lawyer that many parents with children who are contemplating divorce often avoid filing for divorce around any major holiday.  

In truth there is no good time to file for a divorce. It doesn't matter if you live in Rhode Island, Massachusetts, New Hampshire or any other state or country when children are involved.

Any parent who cares about his or her child(ren) will consider the timing of the divorce and the effect it may have on any minor children who still live at home, especially toddlers through early teens who may react with confusion or even blame themselves for the breakdown of the parents.

Certainly it's a good idea to avoid a traumatic event exceptionally close to a child's birthday or a major holiday such as Thanksgiving, Christmas, New Years or Easter.  The concern is that the child might associate the traumatic event of a divorce with that particular birthday or holiday event and then remember it and re-live the trauma each year.

It is the sign of a loving parent to consider these types of divorce effects on their children.

Looking back as a Rhode Island Divorce Lawyer who went through this contemplation for my own children, I have greater insight than I did back then and it is this that I would like other concerned parents to consider.

While there is no predicting how a child might link up an event, a date or a significant happening and associate it with the divorce, there are logical steps you can take to determine whether to file for divorce around a particular date, holiday or significant event in your child's life.

First, you may wish to pinpoint what events are more likely to be most traumatic for the child(ren) and eliminate their occurrence on or within a few days of birthdays, holidays or events significant for the minor child.

For example, it is best to consider whether your spouse is aware that you will be filing for divorce and whether he or she is willing to be amicable about receiving the divorce papers or whether your spouse does not know and is more likely to traumatized and/or hysterical that you filed for divorce and served him or her with papers.

GAUGING YOUR SPOUSE - WHY IT MATTERS!

The filing of the complaint is actually a formal and ministerial task.  If your spouse is aware that you are filing for divorce and cares about your children, then you spouse is much less likely to become a crazed lunatic when the divorce papers are received and thus the date of the actual filing will not be significant or damaging to the children. 

The same is true for service of a Rhode Island Summons and Divorce Complaint.  Service upon your spouse is a required formality of our due process system and it need not been traumatic.  If your spouse is aware of the divorce filing, is treated with respect, and is contacted in advance to make convenient arrangements for him or herto accept the divorce papers then the sense of calm in the family is preserved for the children.

Now, let's consider a different scenario.  Let's assume that your spouse does not know the divorce papers are coming and that she is served subtly at the front door of the house while the children are at school. 

What if your spouse is surprised?  What if your attorney uses common legal terminology in the divorce complaint in order to protect you but your spouse misinterprets it?  Imagine that your spouse has a few hours to "imagine the worst".  Your spouse gets more and more upset worrying about what is going to happen during the divorce and what will happen after the divorce is final?  What if your spouse suddenly believes you must be having an affair? 

Imagine that your spouse is now upset, afraid and angry.  Dozens of scenarios may be whirling through your spouse's head.  There is no one for your spouse to talk to for several hours.  Suddenly your children get home from school.   Your spouse begins ranting and raving and waiving the papers in front of the children.  Here's how much your we're cared about!   Divorce was filed on Christmas Eve!  Christmas eve!! One of the biggest holidays of the year and that's what we're given.  Then I'm served today.  Here it is only 10 days from your birthday little Johnny and that's what we get . . . divorce papers!

Suddenly, the circumstances are dramatically different.  Your upset spouse, unable to contain the feelings that have built up, has now thrown at your children the fact that you have filed on Christmas Eve.  This fact may or may not stick with your children permanently depending upon their age, maturity level, understanding of what divorce means to him or her, and how each child processes the information.    In this case, a parent who is out of control emotionally has disregarded the the damage this may do to the children.  Taking an educated guess about how your spouse will react makes a big difference on the timing for both the filing date and the date on which your spouse is served.

In truth, when parents are upfront with one another and the service of the documents is handled in a respectful manner, good parents will keep the children out of it and will not create a scene nor will they disclose specific dates to the children.  Thus, when you are dealing with reasonable adults who are looking out for the best interests of their children, filing at or around the holiday season should make no difference.  The filing of the complaint is a required part of the process.

    1.  Filing the Complaint is Just Part of the Divorce Process

By itself the filing of the complaint is simply a required part of the process.  If a divorce is desired by either of the parties to go their separate ways then a reasonable adult should realize that it is just part of the legal process. and, if the divorce complaint is drafted by a professional who knows (and respects) the possible damages to any minor children, it need not be threatening or hurtful.  It just IS!

    2.  Service of the Papers is Just Another Part of the Divorce Process

Also, Due Process is part of the divorce process and a requirement of virtually every legal proceeding as required by the United States Constitution.  Therefore, service of the papers is just a part of the process as well.  It is simply a requirement that is being followed because it s required by law.  It is nothing more than saying "Spouse, I filed for Divorce.  Here are the papers so you will know that it was filed and what they say."

DOES THE QUESTION OF WHEN TO FILE FOR DIVORCE HAVE AN ANSWER?

So, when should you or shouldn't you file for a Rhode Island Divorce?  As I've said, divorce is never an enjoyable thing to deal with so there is never truly a good time.  Many people just want a simple "pat" answer.  Unfortunately it isn't that easy if you truly care about your children and want to eliminate as much harm tothem as possible.  The answer actually lies with how well you know your spouse and whether he or she is a reasonable person and cares enough about the children that a scene is not made in front of the children and that adult issues of the divorce are not discussed or forced upon them.

Ultimately, filing for a divorce around the time of the holidays, birthdays or other special events is just as easy on the family as any other time of the year, provided the parents are looking out for their children first and foremost.


REALISTICALLY HOW LONG IS A RHODE ISLAND DIVORCE?

In Rhode Island, the entire divorce process, when amicably worked out as quickly as is legally possible, will take approximately 5 1/2 months.  This is from the date the Rhode Island divorce complaint is filed to the date the Final Judgment of Divorce is entered.  However, practically speaking it is more realistic to add another three (3) months when the case has assets, debts and/or minor children involved. 

Looking at the entire timeframe of a divorce then, you may be looking at 8 1/2 months to realistically complete your divorce with reasonable spouse's involved. 


QUESTIONS TO CONSIDER WHEN GAUGING YOUR SPOUSE

Given that duration of time that it takes for the entire process, the questions for consideration truly become these: 

What parts of the process , if any,  during the Rhode Island divorce process are most likely to trigger my spouse  to fly off the handle and unleash his or her emotional baggage on the children?  

Will he or she rant and rave to the kids about the filing date?  What about the date of service?  Will the hearing date on the Summons scare your spouse?  If things aren't so amicable could it be the date of the first contested hearing that might push my spouse over the edge?  Or would the date the Final Judgment enters be used against me by my spouse with our children?

Knowing your spouse and how he or she would react to the divorce itself is a key factor in determining the timing of the filing, the service, talking to the children, moving out, etc...  This is a tough factor to gauge.

Let me use a somewhat descriptive example that occurs in a general fashion all too frequently .


THE STORY OF BILL AND TAUNYA'S DIVORCE

    1.  Their Background

Bill and Taunya have two young children (ages 8 and 12), a house, about $42,000 in credit card debt and Bill's retirement fund which has accumulated to about $71,000.  They have been married for 7 years.  Bill and Taunya haven't been getting along so well in the past two years because Taunya does not want to get a job outside the home to help with the family's debts.  Taunya has a Bachelor's Degree in Restaurant Management and before they got married Taunya was successfully making $53,000 a year managing a semi-popular restaurant in Providence, Rhode Island.

    2.  Their Feelings

Bill is tired of working 60 hour weeks and not getting to spend time with his children because they have too much debt to pay each month. 

Taunya on the other-hand feels unloved and unappreciated.  She reaches out and finds a friend on the internet to talk to.  As Taunya talks more and more to her internet friend, she talks less and less with her husband, Bill.  

Bill eventually sees himself as just a paycheck each week for her to spend.  Taunya feels her contributions as a homemaker are wholly unappreciated.  Taunya suggests marriage counseling and Bill agrees but only once Taunya gets a job to help out.  Taunya believes that the "job thing" is precisely his problem and the reason they need marriage counseling.  Taunya refuses to go to marriage counseling if it means she she has to get a job first.  Taunya suggests to Bill that he should go to counseling alone because he is the one with the problem.

Bill can't take it anymore.  He is tired, drained, has no friends,has no intimacy with his wife and barely gets to see his children.  Bill decides at the beginning of December that he wants a divorce. 

    3.  Love for their Children

Bill and Taunya both love their children so Bill takes a week or so thinking how to talk to Taunya about his decision because he doesn't want to hurt the children.  Bill knows how much Taunya loves the children so he figures Taunya will remain calm and help him protect the children from any adverse affects.  He decides to talk to Taunya right away so she can start adjusting his mindset.

Bill also talks to a Rhode Island lawyer who tells him that it doesn't matter when he files because he is looking at 5 1/2 to possibly 9 months to resolve the whole divorce.  Bill tells Taunya that night that he will be filing for divorce but that he wants to do what's best for her and the kids.  Taunya takes it calmly and they talk about the holidays and what they will do.  Bill and Taunya agree that Bill and Taunya won't talk to the kids until near the end of January and that Bill will move out of the house by the end of February.

Taunya seems agreeable with all of this yet still sheds a few tears as she looks down the hall toward their children's bedrooms. 

    4.  Filing & Service - The Rhode Island Divorce Process Begins

Bill retains the Rhode Island divorce lawyer.  The lawyer files for divorce on Bill's behalf on the day after Christmas.  In mid-January Bill arranges for Taunya to be served by a constable while the children are at school.  The constable gives Taunya a courtesy call to make sure it is okay to come over.  The constable comes over and simply hands the papers to Taunya and wishes her the best of luck in her divorce.

Taunya takes the papers and looks them over.  Taunya seems fine with things and throws the papers in her dresser drawer.  At the beginning of February Bill and Taunya decide they should talk to the children and let them know their father will be moving out in a few weeks and that they will be getting a divorce.  They want the children to have a time to adjust to the idea.

    5.  Telling the Children about the Divorce

They tell the children about the divorce together.  The children are shocked and cry frequently over the next several weeks.  Taunya's stress level starts to rise as she sees their children so upset day after day.  Taunya tries to reassure their children that everything will be fine and that they will see their father frequently.  The children are stressed and worried and begin asking their mother questions daily. 

Are we still going to live here? 

Where is daddy going to live? 

Will we have to move? 

Will we be able to call daddy? 

What happened? 

Why is daddy leaving? 

Did we do something to make daddy leave?

As the children ask more questions that Taunya isn't able to answer without getting upset her stress level rises even higher.  Bill tries to pack very subtly and to help Taunya reassure their children.  However, as the day gets closer when their father won't be sleeping at their house anymore the children get more and more upset. 

By the end of February Bill has moved out.   Bill calls the children every day and sees them every weekend because Taunya explains how upset they are, and that they cry and wail all the time because their father is gone.  The children just want their father back home.  Nothing Taunya does seems to help the children.

    6.  The Emotional Explosion

Finally, the children come into Taunya's bedroom asking more and more questions and crying.  They want their mother to explain it to them.  They want to understand what is going on and why.  Taunya can not take it anymore, she walks to her dresser and pulls out the papers and waves them in front of their children.

"Listen", Taunya yells at the kids.  "I did everything I could.  We talked and we waited and we tried to make things easy for you.  We tried to give you a good Christmas and everything but you're going to stop crying!  Do you hear me?  Your father is gone and he's not coming back to us.  You may have received all those nice presents at Christmas time, but you know what we really received for Christmas?  We got these papers.  And do you know what they say?  They saying that your father is leaving us, that he wants to move out and that he wants a divorce.  That's what the wonderful father you keep crying about did for us!  So stop your crying about him because frankly I'VE HAD IT!!!"

    7.  Severe Damage May be Done

This is where the damage is done and it is certainly not isolated to women.  In this example, an example which is unfortunately all too common, Taunya has most likely damaged their children emotionally more than she possibly realizes. 

Taunya's inability to deal with the emotional turmoil the children are feeling from a sense of loss of their father and fear of the future have caused her to express herself to the in such a way that she has now attached the wonderful holiday of Christmas to all their feelings of sorrow and pain.  It is possible that the children will now be reminded every Christmas that it was the day "Daddy decided he wanted to leave them."  Taunya may have also caused the children to believe that Bill did not want to see, or live with his children anymore and that THAT is what divorce means.

Children are resilient, but they are also delicate and they take their cues and build their belief systems when they are young based upon what they are taught and what they learn from those around them, especially their parents.  Taunya's own difficulty in coping with the children's pain may create a life-long cycle of pain at Christmas and a feeling of anger and alienation toward their father even if Taunya had not intended it that way.


INDICATORS OF WHEN TO ACT

So WHEN is a good time to file for divorce?

And WHEN is a good time to serve the divorce papers?

AND WHEN is the best time to talk to the children about the situation?

There is no perfect answer except to realize that there is truly no bad time at all to file for divorce. 

Why?  Because when all is said and done, it is not the filing date, or the service date of the papers that actually determine if it is a good time to begin the divorce process. 

The answer lies in how well the parents can work together to prevent harm to their children. 

Certainly it is best to avoid talking to minor children about the subject of divorce or a parent moving out of the house either on or close to any major holiday, birthday or event significant to the child.  This is because this is the most likely time that children are apt to get upset and relate those feelings to whatever holiday or event may be happening no matterhow well you and your spouse finesse the subject.

The children can be sheltered from the rest of the process and the hurt it may cause if they work together to deal with the issues and keep the children out of adult issues.  Divorce and the breakdown of the marital relationship are adult issues! 

Ultimately, filing for divorce around the holidays is not a bad idea, nor is timing of the service of process on your spouse, as long as both spouses are prepared to deal with the emotional pain and sorrow the children may feel, as well as their questions, WITHOUT blame and WITHOUT making issues between the adults . . . emotional difficulties that the children are forced to deal with because one or both parents are not in control.

MY RULE OF THUMB

Should you file your divorce around the holidays, a birthday or a child's special event?

Take time and think about your spouse.  Do you think he or she can and will protect the children by keeping adult issues between the adults?  If so, file your divorce and arrange for your spouse to accept the papers in a comfortable and amicable manner.  If not, avoid every holiday, birthday and special event for the children like the plaque regarding the filing date, the service date, the date you talk to the children, the date either spouse moves out of the home, the hearing date for the divorce and the date the Final Judgment of Divorce is entered.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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Copyright 2008.  Christopher A. Pearsall
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