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August 2012

The Dangers of Representing Yourself in a RI Divorce Proceeding!

I've always been an advocate of people exercising their right to represent themselves, especially in Rhode Island divorce proceedings.  However, I am only an advocate of it when people obtain guidance from an experienced lawyer who regularly practices divorce law in Rhode Island.

Today the dangers are greater than ever as I see most of the judges walking people through the divorce process.

Many people think that legal advice isn't necessary if the judge helps them through the process.  If you are one of those people, I'm sorry to rain on your parade but the dangers are greater than ever.

Let me give you several examples I have seen in the past month.

1.  The first couple I saw didn't get any advice from anyone for their divorce.  Then went before the RI Family Court judge who lead then through their divorce.  In 5 minutes they were done and they were thrilled that the process was over.  They left the courtroom with a few nasty words to each other and it was clear that they thought it was done.

Here was the problem.  The judge expected them to know what to do from there.  They had already been helped through the hearing.  They were on their own for the rest.  I'm sure neither one of them knew that they have to prepare and Interlocutory Decision Pending Entry of the Final Judgment to be approved by a Rhode Island Family Court Judge usually within thirty (30) days of that hearing and then present a Final Judgment in the same manner within 91 to 121 days thereafter.  If they don't do those things, they will remain married indefinitely.


2.  Here's another example.  Another couple I noticed went through the process and answered whatever questions the judge asked of them.  The wife made hardly any money at all and had a child on state assistance.  The husband made a very decent income by comparison.  During the questioning, the husband waived alimony from the wife but the wife was never asked if she waived alimony from the husband and it was never stated by the judge on the record.  Sometimes the judges are very busy and I understand that this could happen, therefore I must be on the look out for it when I am protecting the clients I represent.  This means I must make sure that these things are included in the judge's decision and in the testimony to make sure everything is covered correctly.  Since neither the judge nor the husband caught the issue, this fellow may have a problem in the future.  Since this man's wife didn't waive alimony then she can return to court at any time and ask for it.  Some legal advice from an experienced lawyer could have prevented this.

3.  In another situation, a judge lead a couple through the proceeding and in about 10 minutes they were done.  Was there a problem in their divorce?  I believe so.  I noticed that in the court's decision regarding the divorce that the judge "left child support open" because the husband said that he and his wife agreed that he was taking care of his children so a child support order wasn't necessary.  The wife didn't say a word about this in her testimony even though the judge asked her if she agreed with her husband's testimony and she said "yes".   

The woman was very quiet and meek and so the judge continued with the questions and 9 minutes later the judge made the decision and child support was left open.

Out in the hallway the husband laughed at his wife.  Apparently he wasn't taking care of the children at all and there were four (4) of them!  He put his arm around another woman and walked down the hall and got into the elevator.  The wife just sat down in the hallway and cried.

Too many people are making the mistake of believing that they do not need to know their legal rights or obtain some legal advice because a judge might help them through the divorce process.  

It is your obligation to know your own rights and it is your obligation to protect your rights and to protect the rights of your children.  It is not the obligation of the judges to protect you, your children, your house, your income, etc...  The judge conducts the proceeding and expects you to know what you are doing.  The judge must presume that you know your rights and what you are doing because you have come into a court of law.

Everyone's case is different.  Everyone's life is different.  Everyone has different factors that must be considered.  It is up to you to make sure the court knows all these things.  It is not up to the judge to ask you the right questions or even all the questions that relate to your particular marriage or family.

If a mistake is made or something is forgotten, it is not the judge's fault.  You can't blame the judge.  You can't sue the judge.  You can't sue the state.  You're on your own because you walked into a bear trap with jagged steel clamps and set it off knowing full well that it was right there and you were stepping into it.

A tremendous number of people are making the mistake of representing themselves and believing they are protected when a judge is nice enough to try to help them through a divorce proceeding with a generic set of questions that applies to many divorces but certainly not all divorces.

A judge is not your protector!  You must protect yourself!

I offer affordable coaching and advice and I'm here to help.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

The Abuse of Rhode Island's Protection from Abuse Laws!

We hear about domestic abuse frequently.  It's on television, billboards, radio, flyers and posters.  Unfortunately what we don't hear about is how Rhode Island's Protection from Abuse laws are themselves being abused by people who want to wreak vengeance on another person for any number of reasons.

For those that are unfamiliar with the process, it is relatively straightforward.  You fill out a few triplicate forms indicating your relationship to the person against whom the "protection from abuse order" is sought and the date(s) the threats or actions that lead you to reasonably believe imminent bodily harm is going to happen to you and the relief you are seeking from the court.  In otherwords you paint a picture for the judge that will read it.  What led you to file for this Protection from Abuse Request?  What was said?  What was done?  What do you have personal knowledge about regarding this person that justifies the relief you are requesting.  You sign this as a sworn statement under oath.

What happens next?  You go before the court and a Rhode Island Family Court Judge reads your application for a Protection from Abuse Order and your affidavit.  If the court finds any reasonable basis upon which to believe that the Order should be issued for the protection of the party applying to the court, the court will grant it.  This is all based upon your sworn affidavit.

So what is the relief?  Consistently it is a "no contact order" that the person against whom it is sought may not contact the applicant in any way until a full hearing can be held within the statutory amount of time.  More often than not, it also includes ordering the person against whom it is sought that he or she must remain out of the house.

If the parties have minor children together the Order may give exclusive custody of those minor children to the applicant which although not specifically denying the other parent visitation has that practical effect.

Unfortunately the system gets abused without consequences.  Persons come before the court and fabricate circumstances that never existed, distort the truth and make glaring omissions.  If the court knew the true facts and circumstances the vast majority of these abuses would be curtailed and the order would never be granted.

My stomach turns each time I am privy to persons who lie to the court with impunity because the law has not provided for adequate punishment for those who abuse Rhode Island's Protection from Abuse Laws.  Particularly those who lie to the court under oath on their affidavit.

It says much about people who boldly go before the court and lie to achieve their own silent agendas.   Fathers and sometimes mothers are ordered out of their homes and unable to see their children because the mother of their children feels scorned or has a boyfriend or girlfriend that they want to shack up with in the couple's home. Many times those people who seek the Protective Orders call the very person they do not want contact with in order to provoke a response, the other party (most frequently the man) is then arrested and then use the criminal charge either as further leverage in a divorce or as some sense of misguided vindication that makes them feel better.

Perhaps this all comes down simply to one's sense of honor or personal morality.  Yet for the man (I refer to "men" here because I estimate that at least 9 out of 10 applicants) who is forced from his home, unable to see his children, possibly subjected to criminal charges, may lose his job and/or the respect of friends and colleagues . . . it is an exercise in injustice and a very sobering experience that such a thing could even be allowed by the court.

So where does this abuse lie?  The abuse finds it's home in the audacity of those who without conscience lie under oath to the court for their own purposes with little worry of prosecution, retribution, or even penalty.

So what is the remedy for a man subject to all these damaging consequences, including prosecution, etc... if it is proven that the women's claims in the initial affidavit were false?  Dismissal of the family court's initial order but NOT any criminal violation that may have occurred on the Protection from Abuse Order that never should have issued.  The consolation for such a man who has not done the things he was accused of is no consolation at all. . . simply the realization that injustice exists and the impression that upon a person swearing before a Notary Public to lies in their affidavit the court appears to rubber stamp that injustice to the detriment of good people.

All My Best to You on Your Journey Through The RI Family Court,

Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

Protect your Family . . . Make Sure You have a Will!

Do you have anyone that you care about? If so, you may want to consider insuring that you have a Will drawn up by a competent Rhode Island Lawyer.

For many people, having their Last Will and Testament Drawn up is the last thing on their minds. Of course the reason for this is fairly obvious. Very few people want to think about their death and many times loved ones don't want to talk about it either because the thought of losing that loved one simply brings up unpleasant feelings.

Yet having a Will is important if their are people in your life that you care about and things that you have acquired during your life. Your Last Will and Testament is your chance to insure that things are distributed to your loved ones, favorite charities, etc... even after you are gone. It's your opportunity to provide for the people in your life that took care of you or that were closest to you.

If you have the opinion that you don't care about what happens to your things after you are gone simply because you are no longer present, you are certainly entitled to your opinion, yet I invite you to think again.

Probating an estate can be far from enjoyable for the people who are left behind. If you die without a will (intestate) and have assets and/or obligations sufficient that the Probate Court needs to be called into play, you may be putting a loved one through not only your death but the horrible task of dealing with your failure to plan for your death by simply creating a Will to tell the world what you wanted to happen with your belongings.

If you don't plan ahead and decide what to do, then the state (by way of the Probate Court) will decide for you and that may be very unpleasant for those that are left behind.

It's poor planning and shows a lack of care and concern for those your are leaving behind to simply assume that people will simply take what they want or that specific loved ones will receive what you have told them verbally that you want them to have.

Without a Will, or reciprocal Wills for a couple with children, sudden death for both parents involved in a car crash or some similar tragedy (unfortunately an event that occurs all too often) will leave the children without a legal guardian to protect their interests and look out for their well-being.

When you create your Last Will and Testament, you determine the way you want things to be . . . . without a Will . . . the state will decide what is best.

You be the judge. Who would be better off making good decisions about your property, your debts, your children and your life's holdings.

I'd bet on you every day of the week and twice on Sundays.

Feel free to contact me if you are in Rhode Island and need to form your Last Will and Testament economically and effectively.


All My Best to You on Your Journey Through The RI Family Court,

Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

A Checklist for Understanding Legal Custody in The RI Family Court System

Legal Custody is a major component in situations when children are involved with two parents whether it is in the context of a divorce or not.

Understanding legal custody is not a complex task and can be understood at a fundamental level by this checklist.

1.  The court likes to see Joint Legal Custody between parents of their minor children.

2.  This is the preference of the court because Joint Legal Custody is the legal right of each parent as a birth parent to have a say in major decisions regarding the child they are the natural parent of.

3.  The major legal decisions covered by legal custody are major decisions making for your child regarding Religion, Healthcare, Education and other things that substantially affect the general well-being of the minor child.

4.  Absent proving to the RI Family Court Judge that the other parent does not have the ability to make good decisions for the minor child. Typically obtaining sole custody by one parent involves substantially proving to the court that one parent is not fit to make decisions for the minor child.  The best way to prove this to the court is to demonstrate to the court that the parent is not able to make good life decisions for himself or herself and therefore should not be allowed to participate in making major life decisions for the minor child.


Knowledge is the key to understanding and making the best decisions for yourself and for your child(ren).


All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach"™  

Rhode Island Common Law Marriages aren't Common any more!

On July 11, 2012 a new Rhode Island Supreme Court decision was issued in the case of Sofya M. Zhorkova v. Paul D. Gaudreau, No. 2011-295-Appeal  (RI - July 11, 2012).  It was an interesting case that I took to trial on behalf of the Defendant and the trial court found for the Defendant.  The determination was the the Plaintiff failed to meet the standards necessary to prove all the elements necessary to show that a common law marriage existed.

The Plaintiff appealed the trial court decision of Judge Stephen Capineri essentially arguing that the Plaintiff had, in fact, met her burden of proof that there was a common law marriage between the parties as evidenced by joint tax returns filed is husband and wife by the parties.  These joint tax returns were filed for four (4) of the twelve (12) or so years the parties lived together.  The Plaintiff's attorney argued that the joint tax returns were proof of the vast majority of the standards necessary to prove a common law marriage.

The defendant went to a few attorneys before consulting with me and hiring me as his lawyer.  Before engaging me the Defendant inquired from several well known long-term practitioners.  In short, those practitioners essentially informed the Defendant that since he had filed joint tax returns as husband and wife for various years, that the court would most assuredly find that there was a Common law marriage between him and the Plaintiff.

The advice was, however, short sighted and was incorrect.  The fact is that Rhode island Common Law marriages aren't very common anymore. 

To prove that a marriage exists at Rhode Island common law, the two people must have (1) had the intent that they both be married to one another, (2) that the intention existed at the same time and is not conditional upon any other action, event, or thing, (3) that the parties demonstrated by their words and/or actions their intention to be husband and wife such that their was a uniform and consistent belief among friends, family, and the community that they intended to live as husband and wife, and (4) that there was, in fact, a uniform and consistent belief that existed among friends, family, and the community at large that the parties were, in fact, married.

The Plaintiff's argument on appear focused on the joint tax returns on appeal.  The Plaintiff argued that the filing of joint federal tax returns demonstrated an intention for the two parties to be married, that the intention must have been at the same time because the tax returns were mutual and signed at the same time and therefore they exercised their intention to be husband and wife at the same time.

The Plaintiff further argued that by signing and filing the joint federal tax returns as husband and wife that both parties were outwardly representing to the Federal and the State of Rhode Island Division of Taxation and anyone they provided those tax forms too for loans or financing that they were making an outward and affirmative demonstration to the community, friends and family that they were married.  The Plaintiff also argued that at different times while the parties were living together that they each placed the other on their health insurance policies as a spouse to obtain coverage.

Many practitioners focus on the obvious and make a "quick call" if they give prospective clients legal advice.  In this case, three well-known divorce practitioners advised the Defendant that he had no chance of winning and that the court was certain to declare that he and the Plaintiff were married at common law.

Personally, my philosophy is to give correct and knowledgeable legal advice or not to give any at all.  Thankfully the Defendant did call me and we took a detailed hour for a paid legal advice session to do a full analysis of his situation.  By the time we had completed the call, I was certain that with the right presentation the court would not find there was a common law marriage because the Plaintiff had to prove each and every aspect of her case by clear and convincing evidence.

The attorneys that the Defendant sought counsel from before the Defendant found me would have been subjecting the client's assets to substantial exposure of loss if he had believed them and not kept looking and found me.

Be careful, that a quick review and some fast advice by an attorney who doesn't provide a thorough assessment of your case doesn't lead you in the wrong direction.

When it comes to common law marriages, they are, in fact, rare.  The plaintiff's burden to prove a common law divorce under Rhode Island law is not an easy one.  All it takes is enough doubt in the judge's mind that makes him or her reasonably hesitate in finding for the Plaintiff on every aspect of his or her claim is all that is needed to stop the court from finding that there is a common law marriage.

If there is doubt, the evidence is not as clear and convincing to the court as it needs to be.  Create some reasonable doubt in the Judge's mind and one more common law marriage is defeated making them even less common.

Yes, Rhode Island Common Law divorces aren't so common anymore.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™