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

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"™