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June 2012

In a Contested Rhode Island Divorce does it matter who files first?

Some lawyers in Rhode Island do believe that there is an advantage to filing first.  There are several reasons.

1.  If you file first then the rationale is that the judge just might see it as the fact that the Plaintiff filed first in the divorce because something was so wrong with the Defendant that he or she couldn't stand their spouse anymore.  Therefore, if a judge believed this then the natural question in the judge's mind just might be "What is wrong with the Defendant?"  If this is the question it immediately places the Defendant on the defense in the divorce when, in fact, there may be nothing wrong with the Defendant other than simply agreeing with the spouse that he or she would do the filing.  

2.  Some attorneys who practice divorce in Rhode Island also have the idea that by filing first they can depict the Defendant as a bad person such that the Plaintiff had to file for divorce because of the Defendant's actions which were no longer tolerable.  In fact it could be true that the Defendant's actions had nothing to do with it but rather that the Plaintiff simply fell in love with someone else and had an affair.  However, appearances to the court and how and attoney depicts the parties drastically affects how the court takes the direction of the divorce proceeding.


3.  Another philosophy of some lawyers goes with a practice generally used with women that they should in some way create a situation in which the woman can reasonably say that she is in fear of imminent bodily injury to herself and then, if the affidavit to the court is worded just right, the woman can obtain a Protection from Abuse Order against that man which not only orders "No Contact" with the wife but also usually orders the man out of his own home even if he has no place to go.  Typically judges err on the side of caution and grant Requests for Protection from Abuse Orders to protect women whereas with men it is rare that such petitions are made, let alone granted.  This is the perfect preemptive strike to get the husband out of the house during a divorce since the Notice of Automatic Orders of Divorce which are served with a divorce proceeding prohibit one spouse from exclusing the other spouse from the marital domicile if they are living together at the time the Notice of Automatic Orders are put in place.  In fact, the granting of a Protection from Abuse Order which forces a man out of his home during a divorce is the only "effective" was of getting the opposing spouse out of the home once a divorce has started.

Based upon the above, it is a philosophy of many attorneys to encourage their clients that if they get into any situation that might cause a reasonabe belief of imminent harm (even if it doesn't) should be used as a means to get a Protection from Abuse Order and get the husband out of the house.  To say the least it is a very prevalent philosophy to help clients gain an advantange in a divorce proceeding by making the Defendant husband appear as a Domestic Violence Abuser when, in fact he his not and the entitle episode may be completely a bogus setup simply to get the husband spouse out of the house.

Once a husband is tainted as an abuser before the court, even if he has not been proven to be an abuser, is likely to affect your divorce judge's decisions in the case.

These are only a few of the philosophies held and used by RI Divorce lawyers.   You can judge for yourself the morality and level of professional ethics the attorney has based upon the attorney's recommendation.

There are, of course numerous other lawyer philosophies in divorce proceedings regarding who should file first.  These are merely a few of the philosophies I have witnessed used in the Rhode Island Court System.  

Which lawyer would you want?  Would you want a lawyer that advises you to fraudulently create a situation which allows you the power to remove your spouse from the house?  Or is your integrity stronger than that?

Ethics and morality often enter into these philosophical divorce questions and they then become a matter of what you are willing to do to achieve your goals.

My hope is that honor and integrity still exisits in most people these days and that the court is not used fraudulently as a tool to achieve whatever you want.

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."

In an Amicable RI Divorce Does It Matter Who Files First?

Max and Jerry are getting divorced in Rhode Island.  They are going to try to represent themselves because they believe everything is amicable.  They are not focused on blame, just the resolution of their divorce and moving on with their lives. Does it matter who files? 

In Max and Jerry's divorce since neither spouse seeks to gain any advantage over the other spouse or claim a divorce based substantially on the actions of the other spouse therefore it won't matter whether Max or Jerry opt to be the Plaintiff on the divorce papers.

Philosophies of divorce attorneys in Rhode Island regarding which party files first in contested divorces varies widely.  One of this week's articles will address lawyer's philosophies in contested cases.

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."

Rhode Island Divorce Quick Tip in Contested Divorce Situations - Subpoena Duces Tecum

In contested RI divorces often the other party doesn't want to comply with providing documents (a Rule 34 Request for Production of Documents) or answering questions (a Rule 33 Set of Interrogatories) under oath.  

When this is the case, the best way to get the information you want is to get it using a subpoena duces tecum to a third-party who may have the same information.

For example, John and his attorney continue with a litany of excuses about why they can't provide the bank account statements for the past 2 years of all bank accounts John's name is on at any financial institution.

Try bypassing John and his divorce lawyer altogether by having a Subpoena Duces Tecum issued and served upon the banks that you think John has been doing business with over the past two years.  Yes, it may cost a few dollars in required witness fees and for the service of the subpoena.  In this way your request for the documents in your divorce action will remain active and you can still pressure John and his lawyer about producing the documents while still making some headway by forcing the banks to produce whatever documents they have on the subject.

Sometimes sidestepping a resistant party by using a subpoena duces tecum which requires the production of documents from the subpoenaed party is the best way to get the information you want and be assured that you have received everything and that the resistant party has inadvertently "left anything out."


All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."

New Family Court Administrative Order 2012-2 Effective June 4, 2012

Rhode Island Lawyers and Pro Se Individual's Take Notice

Effective June 4, 2012 all Decisions/Orders/Decisions Pending Entry of Final Judgment and Final Judgments filed in the Rhode Island Family Court System must be typed or typewritten as those created by a computer or word processor system before being signed by the Chief Judge / Judge or Magistrate.

If you aren't a RI Divorce Lawyer it's too easy to make a mistake in your divorce!

It's one thing not to have enough money to hire a lawyer for representation in your divorce.  It's another thing altogether because you simply don't want to pay a lawyer ANY money at all to make sure your divorce is done right.

The fact is, that divorce lawyers exist for a reason and serve a valuable purpose.  The law is often not all black and white.  Yet at times even one word makes a difference.

Jacob (not his real name) came to me after he and his wife completed their own divorce by agreement and his wife decided to move half way across the country.

Their divorce was, in fact, rather simple.  They went through their proceeding and his wife agreed to sign a quitclaim deed so he could be awarded the house they were living in because the mortgage was in his name and there was no equity in it.

They had a quick 10 minute hearing in one of our counties family courts.  Then they stopped at the clerk's desk and an assistant clerk gave them a sample of the temporary order (technically known as the Interlocutory Decision Pending Entry of the Final Judgment)  and a few minutes later that had handwritten the Decision and submitted it to the judge for approval and had the clerk enter it.

Jacob was very proud of himself until he ran into a problem.  Several months down the road his wife would not sign a quitclaim deed awarding him the house.  He wanted to know how to force her to sign the document quickly because he had a refinance commitment from a lender and he was required to refinance by a certain date by the judge.  He was in a pickle.  

Jacob came to me.  I read the Decision they wrote up at the court.  I explained the rather lengthy process Jacob would need to get his wife to sign a quitclaim deed and that it wouldn't be easy since she was now living across the country and less and cooperative.  There were other issues but Jacob was stuck because of the timeframe for the refinance.

I explained to Jacob that he should get the transcript of the judge's decision and see exactly what the judge had ordered.  I was hoping Jacob had made a mistake and that it could be changed more easily with the court and possibly get him out of his difficulty.

Jacob had missed one word in the decision.  Yes... one small word.  If the word had been present in the handwritten decision then Jacob could actually have filed the Final Judgment of divorce and actually used the Final Judgment as a deed to the property by recording it in the Land Evidence Records where the property is located.  Without that "one" important word, the Decision Pending Entry of the Final Judgment and the Final Judgment of Divorce which had to match it were useless when it came to using it as a deed under an older and seldom used Rhode Island Law.

Now Jacob was faced with spending hundred's of dollars to get things fixed and get the property transferred into his name.

Jacob chose to avoid using my services at a cost of only $145 for one hour to make sure the Interlocutory Decision Pending Entry of the Final Judgment was prepared correctly.  That one choice ended up coming to me anyway and will now cost him lost time from work, delay of his Final Judgment, the purchase of the hearing transcript and a hearing on two motions two months from now to fix the issues.  

It wasn't worth it.  jacob lost an excellent refinance rate, had to change all his plans, needed to spend more money than necessary and still has to find out whether the court will grant will grant him the relief he is requesting.

Yes, if you are representing yourself it is simply too easy without some experienced professional legal help to make a mistake in your divorce of even ONE WORD that can cost you more than you imagine.

Do yourself a favor.  Get a little coaching from me before you take the chance of making a mess because you missed something small.  I saw jacob's problem within 5 minutes after our appointment began.  Jacob wasn't happy with the difference one word made but he was glad I was there to help him fix it before it got worse.

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall and I am "The Rhode Island Divorce Coach."