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A Lawyer who Hates Lawyers? What is this RI Divorce Lawyer Really Saying?

RI Common Law Divorce - Does the Rhode Island Divorce Lawyer Ask Enough Questions?

Being a dedicated Rhode Island Divorce Lawyer involves more than just an advertisement in the Yellow Pages touting that you handle divorce cases.  It also means much more than just having a placard outside your door indicating that you handle divorce cases that has been sitting there for the past twenty (20) years.  It means staying abreast of legal developments in divorce and family law at least on major issues.

Consider this family lawyer scenario.

A prospective divorce client is referred by a friend to a person referred as a "good divorce lawyer."  So the prospective client makes an appointment and meets with the lawyer.  The prospective client hands the papers received from the constable to the divorce lawyer.  The lawyer quickly reads the papers.  The brief meeting goes something like this.

DIVORCE LAWYER:  Well, these papers claim that you are a spouse in a "common law" marriage that was created by Rhode Island Law, that your marriage has broken down, and now your spouse wants a divorce. These are your divorce papers.

PROSPECTIVE DIVORCE CLIENT:  What marriage?!  We never got married.  She's my girlfriend and I might consider marrying her when I'm ready but we sure as hell aren't married right now.

DIVORCE LAWYER:  Depending on the facts, Rhode Island law allows a judge to declare that you are married and may have been married for some time.

PROSPECTIVE DIVORCE CLIENT:  Well how the heck would I know?

DIVORCE LAWYER:  Let me ask you a few questions.

PROSPECTIVE DIVORCE CLIENT:  Okay.

DIVORCE LAWYER:  Now you said you never got married, but how long did the two of you live together?

PROSPECTIVE DIVORCE CLIENT:  Pretty long now . . .almost 13 years.

DIVORCE LAWYER:   Do you own any property together?

PROSPECTIVE DIVORCE CLIENT:  Just the house we're living in right now.

DIVORCE LAWYER:   How do you file your taxes?

PROSPECTIVE DIVORCE CLIENT:  Well, the past 3 years we filed jointly.

DIVORCE LAWYER:  There's no point fighting it.  A judge is going to find a common law marriage here.  You tax filings make it a virtual certainty.

PROSPECTIVE DIVORCE CLIENT:  But we never got married I tell you and I've got . . [interrupted by the Divorce Lawyer]

DIVORCE LAWYER:  I'm sure I can get you a good settlement despite what these papers are looking for. Now the papers were served on you almost 20 days ago so we need to answer this Complaint in the next few days or you could get defaulted.  

Now my secretary will take some information from you on the way out and she'll have you sign a copy of my retainer agreement and give you a copy along with a questionaire.  Before we end for today I'll need a check payable to me for $3,500 so I can answer this complaint before you get defaulted so while you do that. . . [interrupted by the Prospective Divorce Client]

PROSPECTIVE DIVORCE CLIENT: I'd like to thank you for your time but I need to process this and I have an appointment scheduled with another attorney I'd like to meet with.

DIVORCE LAWYER:  But you don't have very much time and . . .

PROSPECTIVE DIVORCE CLIENT: I understand.  You've told me that.  I'll call you if I want to proceed further.  I'll show myself out.  

The Prospective Divorce Client left this particular divorce lawyer's office.

Okay, let's snap back to you as the reader sitting there reading and considering this little exchange.  Now imagine that you are the one seeking to hire a lawyer and you are expected by this divorce lawyer to plunk down $3,500 of your hard earned money for this lawyer to represent you.  

What are we talking about here?  We are talking about a lawyer who gave advice to a prospective client that opposing the Complaint for a Common Law divorce is not worth it even when the client insists there was no marriage. Clearly that isn't what the prospective client would like to hear. Yet there are times when a client has to realize the truth now matter how difficult it may be to swallow.  But is this the truth?  

The divorce lawyer asked only three (3) questions before making the determination, and even more important the divorce lawyer didn't even bother to ask the prospective divorce client about any of the facts and circumstances surrounding the prospective client's life, relationship, and lifestyle with this person who alleges they are married.

Ask yourself, does it make sense that Rhode Island law forms a marriage right out of thin air without signed documents, without a marriage certificate, and without any document telling either party not only that they are married to one anyone but "WHEN" that marriage occurred.

Okay, well these are only three things.  Let's assume that it could be and still cover these three things.  but there must be more, right?  Doesn't it boggle your mind?  I mean, do you have to be a lawyer to feel a bit unnerved and a bit shocked that such a powerful thing with so many legal benefits and obligations as marriage . . . could be formed so easily?  If it doesn't make you wonder... then it should.

Divorce lawyer or not, if you were Spiderman, then your "Spidey Senses" would be tingling like crazy, or as a prospective female divorce client your women's intuition should be sending a signal throughout your body telling you that it doesn't make sense that a divorce lawyer could have you answer three (3) simple questions and essentially tell you to 1) agree that you are married when you haven't "officially married" the person and 2) not to oppose the divorce papers!

Think about it divorce laws themselves.  Doesn't it even defy common sense to think that people who never got married and didn't think of themselves that way are, in fact, married?

The divorce lawyer has not shown you as the prospective divorce client a single stitch of anything that says if you give those particular answers to those particular questions that you are "in fact" married under Rhode Island Common Law.  Based simply upon a referral, or even may appear to you to be a phenomenal reputation the lawyer may have as a "good divorce lawyer", . . . I urge you to consider using your wits and let your wisdom and common sense guide you.

Being a good Rhode Island Divorce Lawyer does not necessarily mean that the lawyer is good at determining who is married under Rhode Island Common Law.

Wouldn't you be inclined to look deeper than that?  Perhaps you would demand a clearer explanation as to where it can be found that you are considered "married" under those circumstances.  More specifically, wouldn't you want to know precisely where in the law it says that your answers prove that you are definitely married under common law.

I will suggest to you that if such a scenario were to occur, and I can assure you it has by more than a few lawyers, that in the very least you keep your head on straight and ask yourself this simple question, Did the Lawyer Ask Me Enough Questions?  

Why?  Because the divorce lawyer in this scenario, in my professional opinion has missed at least a dozen questions that need to be asked for a thorough examination of a Rhode Island Common Law Marriage matter.   

So what happens if the divorce lawyer doesn't ask enough questions?  Well, the advice is, in the very least flawed.  More likely, the legal advice is simply wrong and the lawyer is doing you a disservice.  The end result?  You are not properly represented and you are unable to exercise the options and alternatives you may have access to simply because the divorce lawyer didn't do a proper analysis of the common law marriage in the first place.

We will address both what this lack of knowledge and thoroughness could do to you by discussing some of the factors regarding the formation of Common Law Marriages in Rhode Island in another article.  The damages that could be caused to you as the prospective divorce client by an improper evaluation can be astronomical depending upon the circumstances.

For now, I will close with this thought.  Common law marriages are far more complex than typical marriages and the same goes for common law divorce proceedings because they are filled with even more questions that must be answered.  Common law marriages may be argued and it is one of the few cases where a divorce may be denied simply because a marriage did not exist.  

Common law marriages in Rhode Island are not as easily formed and they are certainly not as easily dissolved.  Therefore, if you are faced with a boyfriend, girlfriend, or domestic partner of any kind who claims you are married, and you are not, you need the help of a skilled divorce and family law lawyer who knows the law and knows the court system.  

To find your divorce lawyer, you will need to remain sharper than the average person when seeking a divorce lawyer.  As a lawyer dealing with marriages and their dissolution (divorces) almost exclusively for more than a decade, I will offer you this rule of thumb.  If the RI divorce lawyers you are interviewing to represent you, or to give you advice do not ask you to explain your relationship and you are not asked at least a dozen questions, then you should consider another divorce lawyer.  

The fewer questions you are asked, the greater indicator that the "divorce lawyer" simply isn't up to speed on his or her common law marriage doctrines or the current cases on the subject (something necessary for the divorce or matrimonial lawyer you will want to hire).

So remember this question, Is this divorce lawyer I am considering asking me enough questions before giving me any determination as to whether I am more likely or less likely to be considered married under Rhode Island Law?   Less questions generally equate to less knowledge, less accuracy, less options and less left for you to continue your life within in the end.

For today, this is your Rhode Island Divorce Coach reminding you that awareness is the key.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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