Rhode Island Divorce Tips

EMAIL QUESTION TO RI DIVORCE COACH / ATTORNEY CHRISTOPHER PEARSALL: 

I have only one question and need only one answer so I am writing in the hope that you will answer it and not require a full coaching session.  My question is this.  If my daughter stays with me in our divorce, can I waive child support so my wife doesn't pay anything?

ANSWER:  Well, you ask a bit of a loaded question here via an email Sir.  Keep in mind that we as Rhode Island Divorce and Family law lawyers need to make a living too.  I certainly have no desire to be greedy and I can tell you that like many people in Rhode Island I have my share of struggles financially yet I too have a family to care for and bills to pay.  My knowledge of the law and the advice I am able to provide from my knowledge and skill is what pays the bills.  So, please keep in mind that you are essentially asking me to do a little bit of work for you for free without knowing me or even giving me your full name in your email.  However, I will meet you half way since I believe that other people who are going through the Rhode Island family court system can benefit from the general answer to your question.

First, this is a general answer to your question.  This answer is NOT specific to you or your case, nor is this answer legal advice to you.  

Keep in mind that without asking you specific questions about your circumstances in your family, your life, your income, your living conditions, your wife, and your divorce then this answer shouldn't be relied upon by you or anyone else.  

No one should rely upon legal advice in a Rhode Island divorce unless it is given by a licensed and experienced RI family law lawyer who has had the opportunity to listen to you and to question you about your specific situation so that all factors will be taken into consideration when providing you with legal advice. 

Every case is different and that is crucial to remember!  

Alright, let's get to it then.

The general answer to your question is both YES and NO!  

You'll understand better once I explain.

  * * WHY THE ANSWER IS "YES?" * *

I don't know of any law in the Rhode Island General Laws, any Administrative Order included in the Orders of the Rhode Island Family Court, or any case that has been decided by our Rhode Island Supreme Court that strictly prohibits a Rhode Island Family Court Judge from allowing a parent who is awarded placement of a child to "waive" child support for the child.

Therefore, technically THE answer is "YES" because there is nothing that strictly prohibits it.

  * * WHY THE ANSWER IS "NO?" * *

Now let's get to the second part of your answer.  

Rhode Island Family Court and divorces have a practical side to them as well and other laws that affect the decision to this question.

Even though in a divorce the RI Family Court is concerned with helping the parties move forward amicably and equitably, there is an underlying principle that the court holds over and above this.  This principle is that the State of Rhode Island and especially the Rhode Island Family Court has a vested and all-important interest in protecting the best interests of the minor children involved in the system.

Keep in mind that the legal idea of "waiving" something usually means or implies that this will be "permanent."

Even though there is no technical prohibition strictly preventing a family court judge from allowing a placement parent to "waive" child support, the perspective of the family court generally and carried on by most family court judges is that the best interests of a minor child are served when both parents contribute financially to the support of the minor child or children.  It is easy to see how the court could find that the best interests of any minor children are not being looked after if the parent who has the child placed in their home wants to "waive" support for the child.

The Rhode Island Family Court Judges look very cautiously on any parent who does not want to receive child support from the other parent because it is not in the best interests of any child for a parent to voluntarily surrender support that the child is entitled to.  Practically speaking, can you waive child support for a child placed with you?  No, you can't because you are not acting in the best interests of the minor child and chances are better than not that the family court judge will not allow it.  Additionally, it makes you look questionable as the placement parent as to whether you are truly looking out for the best interests of any minor child who is to be placed with you.

The alternative is to ask the court to allow you to "leave child support open."  However, since that diverges from your question, I'll address the concept of leaving child support "open' for another article.

I hope this has been of help to you and that you find my forthright and common sensical approach to Rhode Island Divorce and Family Law to be helpful to understanding what it has taken many of us years to learn through case law, practice and the assistance of judges and fellow colleagues over time.

My best to all of you who go before the Rhode Island Family Court System.  If I might be able to help you either through my NEW, AFFORDABLE and IMPROVED Rhode Island Divorce & Family Law Coaching Program or by representation, please do not hesitate to contact me to set up an affordable Coaching or Advice Session.  You may just be surprised how much I can help you and how much money I can save you in the challenging time you may be facing!  

Rhode Island alimony can be complicated and Rhode Island divorce lawyers can easily confuse the heck out of someone who is representing himself or herself in a divorce proceeding.

Fundamentals are important in understanding Rhode Island alimony.  No matter how much I seem to stress this to clients I have represented or coached, there are always those clients who buy into the hype of a Rhode Island divorce lawyer representing the opposing spouse.

Too many times I have seen Rhode Island divorce lawyers convince a person who is representing himself or herself that the Family Court Judge will almost certainly grant their client alimony so the Pro Se individual might just as well accept that fact and start thinking about the amount of alimony the Pro Se person is reasonably willing to consider offering.

So let's take a single fundamental of Rhode Island alimony.  Here it is.  Rhode Island alimony is supposed to be rehabilitative!

Keep in mind that we're not in California!  Rhode Island law's concept of alimony is not like the vast majority of television shows or the tabloid articles you see on the way out the checkout at the grocery store.  A good many times the media will show us the sensationalized awards of large alimony to one spouse, sometimes leaving many of us to wonder how a million dollar earning wife gets a large alimony award from her ten million dollar earning husband. 

It's helpful if you remember that generally alimony will be awarded by the Rhode Island family court judge when a spouse is in need of rehabilitation.  What does that mean?  Well, if a spouse's job skills are outdated and the your spouses reasonably cannot sustain himself or herself financially, then the court may award a period of rehabilitative alimony.

The underlying principle behind this financial support from the greater earning spouse is to allow the other spouse to time to obtain new skills or improve his or her existing skills so he or she can sustain himself or herself.

Alimony is taxable to the spouse that is receiving it just as if it were income.  Alimony is also deductible by the spouse that is paying it on that spouse's taxes.  

While there are many other aspects to the concept of Rhode Island alimony, I believe it is most important to understand its rehabilitative nature, especially if your are going to represent yourself (Pro Se).

If you represent yourself in a Rhode Island divorce proceeding, don't simply believe your spouse's lawyer if you are told that you the RI Family Court judge is going to award your spouse alimony simply because you make more income.    

Rhode Island law wasn't designed to give the lesser earning spouse more money just so you both have roughly the same amount of money coming in.

In short, don't get caught up in that thought or concept through television or from an attorney merely because he or she is advocating for his or her client and is trying to convince you that the Rhode Island judge is likely to award alimony.

All in all, don't panic if you are threatened with alimony by your spouse's attorney.  It's best to do your homework and get some professional advice because alimony situations will vary and there are exceptions. 

Be on your guard.  Know your rights.  In the very least, get some divorce coaching so you know what you are dealing with in your particular situation.  A hundred dollars spent now could save you literally tens of thousands dollars down the road.

In my years of practice as a Rhode Island Divorce * Lawyer I've seen my share of lawyers and their tactics for settlement.  Their tactics give a significant insight into their views on the philosophy of settlement if they consistently take the same approach.

All in all I can understand and appreciate why the public looks at most lawyers with a sense of distrust and even disgust.  Each person who comes to see us as lawyers has a certain objective in mind and they come to us as the profession whose job it is to obtain that objective with the law and our skills in its use as our weapon.  After all, it is called an "adversarial system" for a reason and a lawyers code of ethics requires us to represent our client's interests zealously provided our representation is within the bounds of the law.

Personally, Rhode Island Family Court is a different animal, so to speak, at least in my humble opinion.  Just consider divorce itself as one aspect of Rhode Island family law.  What is a lawyer's resolution tactic for a divorce?

Let me give you a few settlement views that I've heard stated by a few Rhode Island divorce and family law lawyers over the years.

Divorce Attorney A:  I fight for whatever the client wants for as long as it takes or until they are out of money and then I withdraw from the case.

Divorce Attorney B:  You have to budget.  If I know I need to bring in 50 clients for the year and make five thousand off each client to make what I need to make for the year then I see how I'm doing for the year and if I'm making more money than expected I may try to settle the case early if the client might be a good referral source.  Otherwise I will keep going until I get to three quarters of the budgeted amount and then settle their case.

Divorce Attorney C:  If I take a client who has very little money then I'll try to settle the case right away.  I mean we all want to get paid, right?

Divorce Attorney D:  Settling the case isn't really up to me.  It's up to the divorce client.  If the client isn't getting everything he or she wants then I keep fighting until they get it or they tell me to give in on the point.  As long as the client is paying me then I'll keep fighting.

Divorce Attorney E:  If a divorce client is willing to settle right away but I see something that he or she is legally entitled to in a divorce then I'll push that point if I feel it's something they should get.  Sometimes you have to churn things up to make a divorce client worth taking.  When I've made a reasonable amount on the case then I let things cool off and the client will usually lead me right to the settlement table because it's too emotionally draining.

Now, I want everyone reading this to realize that these are only five perspectives out of thousands of divorce lawyers in Rhode Island.  This does not mean they are representative of all Rhode Island divorce lawyers because five (5) simply does not equate to thousands.  There are good divorce lawyers out there.  The hard part can be finding the ones with the type of settlement strategy you are looking for.

I would imagine that some people would find these strategies appauling and typical of every lawyer.  That simply isn't so and I urge everyone not to take that idea from this article.  My point in writing this article is to point out something rather simple.  In all my years of practice, I don't recall an divorce attorney stating in my presence a settlement philosophy that makes sense not only for all couples but for the court as well.

So let me state, for the record, my settlement philosophy and explain it briefly.  If you like it, GREAT!  If you don't like it... then I'm probably not the divorce lawyer for you.  I'm even happy to put my name to it as a quote because I believe that if a client truly knows where the lawyer's head is at then he or she can avoid wasting time if I'm not the type of lawyer he or she is looking to hire.

Attorney Pearsall:  Make sure the client knows his or her rights and alternatives and then settle the case within the client's desires.  If the opposing party is being unreasonable and the client wants you to fight for his or her rights, then if you can't reach a creative compromise, hunker down and do what needs to be done to fight for the client.

If I were to spell things out my philosophy of divorce settlement, I try to settle every case right from the outset to prevent damage to any minor children, to the client, to any future relationship the parties might want to preserve and to resolve the matter so that the possible mental, emotional and financial damage caused by the divorce is minimized.  This helps the parties and the court. 

When I meet with prospective clients I keep it a bit simpler when I explain my philosophy. It goes something like this: 

I try to settle every case as early as possible.  Reaching settlement saves you money, time, stress and aggravation.  If settlement isn't possible, then I do what needs to be done within the bounds of the law, ethics and a genuine sense of morality.

If you like lawyers, you probably won't like me.  There are very few lawyers that I know, like and trust.  Personally, I find it hard to see how other lawyers do not have the same philosophy I have that settlement should be Priority #1.  The only real benefit to not settling a divorce case quickly goes to the divorce lawyer through payment of additional fees.

Divorce is already hard enough for people, even when its amicable.  People have to plan on a new and changed lifestyle and usually additional costs and responsibilities.  Especially when there are children involved, it should be most important, in my humble opinion, to resolve the divorce and preserve the parties and as much of the remaining family unit as possible.

Divorce is a legal step to moving the parties along to a new and different lifestyle.  It's hard enough as it is for the spouses and children.  I would hope other divorce lawyers in Rhode Island would think as I do and help the remaining family unit or relationship to survive and have the best chance at thriving.

A Rhode Island man called me on Thursday.  The man wanting to know what price I charged for handling a simple uncontested Rhode Island divorce.  I told him that it is not quite that simple.

    "Why not?", the man asked.

    I explained that I provide quotes on a case by case basis after a one hour hour coaching and case evaluation session.  

    "What?!?", the man stated angrily.

    I calmly explained that I have a one hour coaching session with each prospective client to ask the necessary questions, advise the person of their legal rights and alternatives, coach the person on the approaches that could be taken, and evaluate their case if they should decide to ask me to represent them.

        This Rhode Island gentleman proceeded to argue with me.  "It should be no big deal to give me a price for an uncontested divorce.  They should all be pretty much the same.  You lawyers are all alike!", the man was clearly angry. 

    Apparently the man had called several other Rhode Island lawyers about uncontested divorce prices and they were not willing to provide prices for their services over the telephone and urged him to make an appointment.

    I could certainly understand the man's frustration.  However, I wasn't appreciating the fact that this man was directing his anger at me.   I was willing to tell him about my coaching program since that is a set fee service but the man wasn't interested.

    It was apparent that the man not searching for a "skilled" Rhode Island divorce lawyer.  Instead he was looking for a "cheap" lawyer who would just stand by him at the hearing and protect him.

    As the man continued to talk, he stated that he didn't see what the big deal about all about.  He insisted his case was straight-forward.

    As the man talked, he quickly laid out a few of the circumstances surrounding his marriage.  It went something like this.

Man:   "We've been married six (6) years.  I'm in the military but I'm a Rhode Island resident.  My wife had an affair with some guy and had two kids while I was deployed.  We agree on everything. We just want it over quick.  It's that easy."

        I tried to explain to the man that I get calls from dozens of people every month telling me how easy their case is, that it's uncontested, and that it shouldn't cost anything at all.  I tried to get this fellow to understand that every divorce is not the same and that 9 times out of 10 times the so-called "uncontested divorces" are not as simple as people think.

    The man refused to believe that his case could be any more complicated than an attorney spending an hour or two.

    Ultimately my response about his "clear" uncontested Rhode Island Divorce took on a different form.  It went something like this:

Attorney Pearsall:  "Well, I've been talking to you only for about 3 minutes now and I know of several issues you may not be aware of just from the small amount of information you've provided.  For instance, are you aware that under Rhode Island law there is a presumption that any children born while you are still married to your wife are YOURS!"

Attorney Pearsall:  "Your wife hasn't been trustworthy about your marriage.  Can you imagine what would happen if she were to appear before the Rhode Island Family Court and request that you pay child support for these children?"

Man: "Well, that ain't gonna happen."

Attorney Pearsall:  "Are you sure?  I can tell you that if a Rhode Island Family Court Judge orders you to pay child support for those two kids, then you had better pay it, or you should be prepared to potentially spend some time in the Adult Correctional Institution."  

Man:  "That's ridiculous.  So she screws around and has two kids with some other guy and I have to pay for them?  That would never happen.  I'll just ask my wife who the father is.  She'll have to tell the court I'm not the father and that will be the end of it, right?"

    The man paused and waited for an answer.  As the man waited for answers.  I decided to show him how simple his divorce might not be!

Attorney Pearsall:  "That's the question.  Is that all it takes?  Do you know if you need the birth certificate for these kids as proof?  Or does the father of these kids have to testify?  Your wife hasn't been very honest with you so far.  What if she lies to the court?  Or what if she doesn't say anything at all?  What if she says she doesn't know if you are the father or not?"

"Do you have a written agreement that she's willing to waive alimony permanently?   Or what about your military benefits, do you know if your wife qualifies for benefits or if she's going to waive them?"

    I stopped talking so the Rhode Island military man could respond.

    After I stopped talking for quite a while the man spoke up.

Man:  "Well, what are the answers all these questions?"

Attorney Pearsall:  "That's my point!  You don't know.  You've spent only a few minutes talking with me and I've already identified numerous questions that you want the answers to.  That's why having an experienced Rhode Island Divorce Lawyer coach you or represent you is so important."

    The man clearly got the point.

Man:  "Okay, I get it.  But I don't have much of a budget."\

Attorney Pearsall:  "That's exactly why I created my divorce coaching program.  It costs less and you get the answers to these questions and much more to protect yourself.  It's a good way to help insure that your divorce goes smoothly."

Man:  "I'll consider it and call you back if I decide to use you."

    Suddenly, without any thanks at all the man hung up.

    The point is simple.  Your divorce may look simple to you.  However, you are not a divorce lawyer in Rhode Island.  I could spend several lifetimes trying to master all the Rhode Island divorce issues and still not cover everything.  

    It's better to be wise and to remember that often times things are never as simple as they seem.  A trained legal professional with expertise in the area of divorce and family law will probably spot problems you might never notice.  

    In any divorce situation you want to find and prepare for issues before your divorce hearing.  You do not want to discover the problems after your divorce is done when it may be too late to do anything about it.

    It is important to find as many issues as you can before it is too late to do anything about them.  It doesn't always have to be costly.  Sometimes a good divorce coach is all you need.  At other times, you need a professional by your side every step of the way.