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November 2012

Why Did My Lawyer include Alimony in my Divorce Complaint When I Don't Want It?

I hired a lawyer for my divorce in Rhode Island and my husband was all upset when he got served with papers that said I wanted alimony when I told the lawyer I didn't want alimony.  Why would my lawyer put something in my divorce complaint that I didn't want?

I've heard quite a few people who come to me when they aren't happy with their lawyer right from the start.  Yet as I tell everyone, I don't sugarcoat things.  Invariably I ask why the person is  asking me that question instead of the lawyer that was hired.

Divorce complaints are signed and sworn to under oath by the person who files them.  Therefore, if you are person doing the filing (i.e. the Plaintiff), then you should ALWAYS read your Divorce Complaint and approve of the language that is included in it before you sign it and swear to it under oath.  

With that said, there is often a very good reason for including a request for alimony in a divorce complaint.  Typically, the general rule is this - if you don't ask for alimony in your divorce complaint then it is very likely that the Family Court Judge will take the position that you have waived alimony permanently and you will not have the opportunity to request it later.  

The point?  Your attorney is probably just protecting you.  

However, you should not sign the divorce complaint without asking the question and understanding the answer.  It is NOT acceptable for a lawyer to simply tell you that it is just "standard language" and that it must be included.  That is neither correct nor is it true.  

If you instruct your attorney to remove a request for alimony from the divorce complaint then he or she must do so.  Remember, you are the client.  You need to know your legal rights, your options, your alternatives, and the possible consequences.  You should be instructed by your lawyer on those matters.  However, as the client YOU and not your lawyer should make the decision regarding the language.

Are there other reasons why a lawyer might recommend that you include a request for alimony in your divorce complaint.

Absolutely!  However, that is for another article.


My Very Best to You in Addressing Your Family Law Issues,

Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach."®

Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advice session to make sure you know your rights.


My Very Best to You in Addressing Your Family Law Issues,

Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach."®


Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advise session to make sure you know your rights.

In a RI Divorce Are Gifts Between Spouses Marital Property?


Are gifts that were purchased and given between spouses during our marriage considered marital assets and subject to equitable division in RI divorce? If yes, can you site the reference where it is stated in RI law.



Generally speaking, the answer is "Yes."  For the direct law you should look to R.I. General Laws § 15-5-16.1(b).  Read the very last sentence of paragraph (b).

Keep in mind that you are not looking for what the law says.... but rather, you are looking for what that last sentence doesn't say. Specifically pay attention to the fact that the law talks about gifts from third-parties as not being marital assets.  Yet the law did not say that about gifts between spouses.  Therefore, gifts between spouses are marital assets.

However, please note that while that is the "general rule", a good lawyer always checks to see if an exception may apply.

Exceptions to the general rule may occur when either the Rhode Island Doctrine of Commingling or the Doctrine of Transmutation apply.

In other words, the answer may depend upon the circumstances that follow and how the gift was treated by the parties after it was first given. Those circumstances may change the general "Yes" to a "No."


My Very Best to You in Addressing Your Family Law Issues,

Attorney Chris A. Pearsall aka "The Rhode Island Divorce Coach."®


Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advise session to make sure you know your rights.

RI Divorce Lawyer for the People Hit Hard by Google's Questionable Search Changes!

It saddens me that after working so hard to provide quality content to people for 13 years, information that they need to know about Rhode Island Divorce and the RI Family Court System that suddenly my main website with the most valuable information is relatively hidden among the rest of Google's listings rather than on page one for my keywords and phrases, not because of an slick tricks but because of all the years of hard work I put in helping people and keeping them informed with my articles. Google should really provide a mechanism for advising people what they might be doing "wrong" in their mechanical estimation rather than penalizing sites based upon an arbitrary computation. Even now I find myself going to other sources because of the content I find coming up when I try to search for the actual information I'm looking for only to come up with commercial sites that miss the bullseye by a long shot.

Challenging The Guardian Ad Litem's Report in the Rhode Island Island Family Court!

In many cases involving children, the Rhode Island Family Court will appoint a lawyer or attorney familiar with Rhode Island family law and it's standards as a Guardian Ad Litem for the child(ren).

The role of the Guardian Ad Litem is typically to investigate the circumstances of the parents and protect the best interests of the minor children.  The Guardian Ad Litem will use his or her factual investigation and apply his or her findings to the standards set forth by the Rhode Island Supreme Court in the case of Pettinato v. Pettinato, 582 A.2d 909 (RI 1990).

The Pettinato case is the primary case in which our Rhode Island Supreme Court set forth the factors to be considered when determining "the best interests of the child." 

Once the Guardian Ad Litem applies the Pettinato factors, he or she will make one or more recommendations regarding placement, visitation, and sometimes treatment for the minor child(ren) or even the parents.  The nature of the recommendation(s) are usually  based upon the reasons why the court appointed the Guardian Ad Litem.  

For instance, if the Family Court Judge wanted a recommendation regarding placement, then the Guardian will usually focus his or her investigation on investigating issues relating to placement of a child and the end result is likely to be a recommendation by the Guardian Ad Litem as to placement.

The factors for determining the "best interests of the child" as outlined in the Pettinato case include: 

1)  The wishes of the child's parent or parents regarding the child's custody.

2)  The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

3)  The interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest.

4)  The child's adjustment to the child's home, school and community.

5)  The mental and physical health of all individuals involved.

6)  The stability of the child's home environment.

7)  The moral fitness of the child's parents.

8)  The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

The formal report of virtually every Guardian Ad Litem will reference the Pettinato factors.  

So what does a Rhode Island family law attorney do if the Guardian Ad Litem's report and recommendations are adverse to their client?  Sadly, this is where things become problematic.  Too many Rhode Island family law attorneys will advise their client that the Guardian's Report "went against them", "that the judge will give the Guardian's Report tremendous weight/importance"  and therefore it is not practical to challenge the recommendations at a full hearing on the merits.  

So what do you do if a Guardian Ad Litem's report is not in your favor any you believe that the recommendations to the court are clearly wrong.

First, family law clients and attorneys need to discuss the Guardian's report and recommendations and what they mean from both a legal and a practical standpoint.  Why?  Because you do not want to spend time, effort and money challenging something if you don't understand what it means to you as a client and particularly as a parent.

Second, clients/parents must understand that a Guardian's Report is based solely upon that solidity of the Guardian Ad Litem's investigation.  

Third, clients/parents need to understand that not every Guardian Ad Litem will perform the same type or depth of investigation.  Therefore, some recommendations will be based upon a solid investigation and others may be based upon a weak investigation.

Fourth, clients/parents need to understand that some Rhode Island family law attorneys are not willing to question or challenge the recommendation of another attorney who may be a well-known attorney by reputation or a friendly colleague. 

Whether you are a family law client or a litigant representing yourself before the Rhode Island Family Courts, you must be aware that a Guardian Ad Litem's recommendation and report is just that... a recommendation.  The court is NOT bound by the Guardian Ad Litem's recommendation and it is the judge, based upon all the factors and all of the evidence presented who makes the final decision.

Why is it important to know these things?

Imagine that you are a judge.  You are presented a report and recommendation by a well-known Guardian Ad Litem that you assigned to the case.  The matter goes through a full trial.  During the Judge you hear all the evidence from a client/parent who was unwilling to accept the report and settle the case.  As the Rhode Island Family Court judge you want to make sure that any information and recommendation you are given is accurate and is based upon sound investigation so that you make the best possible decision.

Now as the judge you hear testimony and take evidence from people that you believe the Guardian Ad Litem should have spoken to before making his or her recommendation.  There is no explanation why the Guardian didn't consider these various people or records.  

In the end, as the Judge you believe that the Guardian simply didn't look deep enough or drew conclusions that were not reasonable because important information was not considered.

As the judge, how much significance would you give to the Guardian Ad Litem's recommendations if you believe the Guardian's investigation was not thorough enough?  Would you give the recommendations very little significance?  Perhaps even none?

This is not a rare scenario.  A Rhode Island Family Court judge wants to make the best decision possible for minor children.  The judge may well find that the Guardian Ad Litem's report should be given very little consideration when making his or her decision because the Guardian neglected to speak with key people, look at important records that were available, or to ask important questions which may substantially impact the Guardian's recommendation and the court's decision.

In my history working with Rhode Island Divorce Attorneys, I have witnessed too many attorneys who advise their client to settle a case when a Guardian Ad Litem's report and recommendations are unfavorable to their client.  This can be a grave mistake.

Individuals who represent themselves and attorneys with their client's best interests at heart need to scrutinize not simply the Guardian Ad Litem's recommendations, but more particularly the factual investigation.

In the end, a good Rhode Island Family Lawyer does not simply defer to a Guardian Ad Litem's recommendations simply because he or she holds the title of Guardian Ad Litem.

Consider this analogy. Carports are rarer these days but the idea is simple.  A carport is a roof that protects a car or truck and its owner/driver from the elements of sun, snow, wind, rain, etc...   This roof is held up at each corner by a post that must be strong enough to bear the weight of the roof and withstand the various elements that are thrown at them.

The recommendation of the Guardian Ad Litem is the roof of the carport.  A  judge would like to rely upon it for a reasonable level of stability just like the driver of a car sitting in his car under the carport wants to be able to trust that the carport's roof will keep his or her cars safe.

Yet what happens if you show the driver (i.e. the Judge) of the cars (i.e. the Children) that the roof (i.e. the Guardian's Recommendation) is held up by wooden posts that are filled with termites (i.e. the Guardian's Research) and the cars (i.e. the Children) are at risk if the driver (i.e. the Judge) relies upon the roof (i.e. the Guardian's Recommendation)?

Is a judge likely to rely upon the builder (i.e. the Guardian Ad Litem) in that instance?  If you are convincing enough, the answer is . . . no. 

In short, a Guardian Ad Litem's Report is not the end.  The judge has the final word based upon all the evidence.

Carefully scrutinize the recommendations and particularly the investigative report upon which they are based.  If you are able to invalidate or weaken the investigation, then you remove the support for the recommendations. 

If you show a weak investigation then the Guardian's report and recommendations may not even be given the weight of the paper it is written on.

My Best to All in Your Journey through the Rhode Island Family Courts,
Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach"

Whether you need affordable representation or coaching through an uncontested Rhode Island Divorce (or a contested proceeding), feel free to call me.  
Proudly serving Providence, Kent, Washington and Newport Counties in family law proceedings for more than a dozen years.
Call me Now at (401) 632-6976.

RI Divorce Help - Don't Cross the Line!

Who is helping you in your divorce?

It's one thing if you think you can handle it yourself or if you ask a friend their opinion on what he or she may think goes in this blank or that blank of a form but your friend should watch out how far they go.

In our present economy people are getting desperate and looking for friends or new boyfriends or girlfriends who are legal assistants, paralegals, social workers, court clerks, or even friends or colleagues have been through the divorce process for assistance in getting through their divorce.  This help or assistance often involves the filing or drafting of forms, wording, procedures, and other "help."

A word of wise to those who are cautious.  Receiving help in a Rhode Island divorce proceeding from a person who is not licensed to practice law, regardless of whether the person is receiving compensation for their time or "assistance" is very likely to be in violation of Title 11, Section 27 R.I. General Laws.

Title 11, Section 27 and it's following subsections provide for how the crime of the Unauthorized Practice of Law is handled and how it is punished.

Recently, RI  Senate Representative Medina was arrested allegedly in connection with receiving money in conjunction with promises to provide legal assistance to people under a separate business name.
While this may not be your situation, it is similar to the situation of two other people I heard from in a non-attorney/client capacity at the courthouse last week.

Though she did not disclose her identity, one woman openly disclosed that she was a social worker who was very familiar with the family court system, but "just not this part of it" and tried to pick my brain for a moment or two before I entered court to attend to my client's hearing.

It only took moments for me to understand that she had been drafting all the paperwork for the gentleman sitting next to her who was either a friend or her boyfriend.  I inquired if she would like my card in the event she needed professional legal advice on the matter.  She declined and stated that she would figure it out and that the man sitting next to her didn't have the money to spend.
Even after I explained that I was not soliciting representation from her inquiry but rather was suggesting that perhaps some legal advice from any experienced attorney in the area of family law might be helpful she again declined and I wished her friend well in his court endeavors.

Though I was unable to obtain the woman's name and left the courtroom before the man's case was called for hearing, I was concerned that she was participating in the unauthorized practice of law without a license which is a criminal violation of the law.

Desperation leads people to do a lot of things.  Yet while I am an advocate for representing your own rights if you know what you are doing.  I believe that most people do not usually know what they are doing.   Additionally, help from friends and persons other than licensed RI lawyers who are experienced in the practice of divorce and family law is insufficient and is likely to not only likely to expose the "helper" to criminal charges but may place you in a bigger mess than you ever expected.

There is no substitute for a licensed and experienced RI lawyer in this area of law.

Remember, an ounce of prevention is worth more than literally a TON of cure when it comes to your legal rights.

All My Best in Your Journey Before the RI Family Court System,
Attorney Chris Pearsall - "The Rhode Island Divorce Coach"

Whether you need affordable representation or coaching through an uncontested Rhode Island Divorce (or a contested proceeding), feel free to call me.  

Proudly serving Providence, Kent, Washington and Newport Counties in family law proceedings for more than a dozen years.

Call me Now at (401) 632-6976.