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November 2012

The Rhode Island Family Court's New DR6 Financial Statement of Assets and Liabilities

If you've filed anything in the Rhode Island Family Court since the new nine (9) page DR-6 Financial Statement of Assets and Liabilities has been imposed by the court, then I'd like to hear from you.

I will tell you that it's no secret that both attorneys and clients are troubled by the form.

The form clearly strives to be just about as "all inclusive" as you can get and most assuredly is more time consuming both for the client to fill out and for the attorney either to review or to instruct the client on, wouldn't you think that some sort of instructions would have been created for the form?

Now, here's the strange part.  By reading this short article you might think me the pessimist and one to find fault with everything. However, for those those who know me I am quite the opposite and far from lazy.

As so many other divorce attorneys I take the DR6 Financial Form seriously which is as it should be since the form was presumably intended to help give the court and the opposing party a relatively accurate picture of the other party's financial perspective.

The form is supposed to be signed and sworn to under oath as being accurate.  It is also supposed to be updated as significant changes occur.  Additionally, the DR-6 Statement of Assets and Liabilities is a tool for both examination and cross-examination of a party.

I, for one, thought that either instructions or in the very least definitions would have been created for attorneys to direct our clients.  However, according to one attorney involved in form creation process there is no intention to do so at any time in the future.  

When I asked "Why?", the response was that the form was intuitive and rather obvious to follow and that attorneys would know what was intended.

I must disagree.  I've been called by people trying to represent themselves, countless clients and even other experienced family law attorneys asking what was intended to be filled into a particular area of the DR-6 form.

Disregarding the new rule that the DR-6 must be printed on "green paper" there remain too many unanswered questions about the form.

Just as the Child Support Guidelines provide for varying methods of calculation in different circumstances (or differing scenarios/possibilities) so too does the DR-6 form.

Is the DR-6 intended to show both parties collective financial picture if they are still living together?

Or,

Is the DR-6 intended to show only one party's contribution to the finances if the parties are still living together?

Or,

Is the DR-6 meant to include under the debt section the debts of both or the parties in the marriage?

Or,

Is the DR-6 mean to include in one person's form under the debt section the debts only that the person signing the form is paying?  Or perhaps it is only to fill out the debts that the person signing the form is legally obligated to pay regardless of whether they are paying them or not?

Under the child expenses portion of the DR-6 is this intended to include the child expenses of the parties, or maybe only the portion that party is currently paying?  Is the child expenses section only for minor children of the parties or is it for all children, including step-children?

What if the parties have always had separate financial accounts during their marriage but they have access to the financial information of their spouse's financial accounts?  Do they include those accounts since they might claim the accounts are marital funds earned during the marriage?

The same questions can be applied to assets.  If the deed to the house is in the wife's name and it was purchased during the marriage but the husband is on the mortgage to the house, then a lawyer might argue that it is a marital asset and therefore even though it is in the wife's name that it should be listed as real estate on the husband's DR-6 form, but is this what was expected by the creators of the form?  

If many lawyers and citizens of our good state don't know what was truly intended by each aspect of the form, then perhaps the creators of the form were not in the same page when designing the form. Whether or not that is the case, without guidance in the way of instructions or definitions providing some level of uniformity how can anyone be sure if they are filling it out correctly, instructing their clients correctly or even if the judges are interpreting it uniformly.

What do other lawyers, judges and consumers think about this form?

Did you like the Excel spreadsheet form or is the PDF Form working better for you?

I'll end with what one person said to me about the new DR-6 that made me laugh, namely,

"That Form is Cursed!"

I'd like to hear your comments.

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

Call me for your reduced-cost family law advice session at (401) 632-6976. 



How Do I Find Out What My Spouse Will Use Against Me in My Divorce?

There are legal tools that exist in the Rhode Island Domestic Relations Rules of Procedure and in virtually every state and commonwealth that a party can use to discover their opponent's claims and what evidence they might have against you.

So what could you use.

In Rhode Island there are several main "Discovery Tools" as I prefer to call them.  They are generally as follows:

INTERROGATORIES

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THING AND EXAMINATION OF LAND

REQUESTS FOR ADMISSIONS

DEPOSITIONS

SUBPOENAS DUCES TECUM

There is an additional one in some jurisdictions that provides in some situations that is a Request for a Mental Health or Medical Examination but it is rarely used in divorce cases as compared to the other tools.

These discovery tools would be used by you or your attorney to find out what your spouse will use against you, the find the strengths and/or weaknesses in your spouse's case, to gain evidence about your spouse's credibility and for other purposes relevant to your case.

Each tool performs in a different way.  Today we will address Interrogatories.

Interrogatories are questions that you may send to the opposing spouse that he or she must answer under oath or objected to within a specific time period set forth by the Rules of the Court.  The answers may be used not only to discovery aspects of your opponent's case but they also may be used at the time of trial for a variety of purposes that support your case or damage the other spouse's case.  In Rhode Island Family Court the number of questions you may ask, including subparts, is limited to thirty (30) unless you obtain approval of the court to ask more questions.

The next article will cover a description of another powerful tool used in divorce cases to learn your opposing spouse's position and to build your own case in the event you are headed for trial or need bargaining leverage for settlement.  

In the series of articles to following their descriptions I will give examples of how each particular tool might be used and perhaps even some of the traps to avoid falling into when you are sent a particular set of documents that must be responded to.

Rule 33 of the RI Rules of Prodedure for Domestic Relations governs interrogatory use in divorce and family court cases and it works in conjunction with Rule 26 which relates to the majority of the other "discovery tools" as you will see later.

Rule 33 as of the writing of this posting is as follows:

Rule 33. INTERROGATORIES TO PARTIES

(a) Availability; Answers; Objections. Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served after commencement of the action and without leave of court, except that, if service is made by the plaintiff within twenty (20) days after service upon the defendant, leave of court granted with or without notice must first be obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within forty (40) days after the service of the interrogatories, unless the court on motion and notice and for good cause shown, enlarges or shortens the time. With his or her answers a party may serve specific written objections to particular interrogatories, stating the grounds on which they are based. Failure to serve such objections shall constitute a waiver thereof. Answers to interrogatories to which objection is made may be deferred until an order to answer is entered in accordance with Rule 37(a) upon motion of the interrogating party. Such objections or motion made without substantial justification shall be subject to the sanctions set forth in Rule 37(a).

(b) Scope; Limitations. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the court on motion of the deponent or the party interrogated, may make such protective order as justice may require. A party shall not serve more than one set of interrogatories upon an adverse party nor shall the number of interrogatories exceed thirty (30) unless the court otherwise orders for good cause shown. The provisions of Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule.

(c) Continuing Duty to Answer. If the party furnishing answers to interrogatories shall obtain subsequently information which renders such answers incomplete, amended answers shall be served not later than ten (10) days prior to the day fixed for trial. Thereafter amendments may be allowed only on motion and upon such terms as the court may direct.

[Rule 33 is Accurate as of November 2, 2012]

Bookmark this website for upcoming articles on other Discovery Tools you can use in your divorce that can help give you an advantage.

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

Affordable Divorce Representation and Coaching for Providence, Kent, Washington and Newport Counties.

Call me for your reduced-cost advice session at (401) 632-6976. 

 


Understand Joint and Sole Legal Custody of Minor Children in RI Family Court.

When I refer to legal custody here I am referring to a parent's legal right to have a say in making major decisions that affect a child's life, particularly those that fall into four (4) categories.  The four categories are (1) education, (2) religion, (3) healthcare, and (4) those major aspects that may substantially affect the "general well-being" of the child.

The most commonly adopted standard by judges is that parents should have "joint legal custody" regarding their natural minor children or adopted children.  The generally speaking the principle is that by virtue of being the natural or legal parent of a child that the "parent" should have an equal say with the co-parent in the major issues affecting a minor child's life.

The question then is, when might this standard not be appropriate.  There are no concrete hard and fast lines here when it comes to Rhode Island caselaw or statutes.  Yet judicial discretion and common sense provide us with what are the most common scenarios and what might cause "joint legal custody" to topple.

Some quick examples are as follows:

1)  A severe alcohol problem;

2)  Drug addiction;

3)  A criminal record or charges which indicate the minor child is more likely to be at risk if the parent is given equal decision making rights with other parent;

4)  Addictive, obsessive or violent behavior again indicating that the minor child may be placed at risk if both parent are afforded equal decision making rights for the minor child;

5)  Anger management issues which demonstrate an inability to exert a temperament consistent with making good decisions; or

6)  Abandonment of a child in the role of a provider or any attempt to be an active decision participant in the life of the minor child for a reasonable period of time. 

These situations are not, all inclusive.  They are merely examples.

All in all, the Rhode Island Family Court Judges do not wish to strip any parents of their joint legal custody rights unless it is necessary even on a temporary basis for the protection of minor children.

One judge gave me a fantastic example in my early years of practice that I have found helpful even as of the writing of this article.  The example is this.  Imagine that you are able to sit in the judge's position long enough to look at the facts presented to the court.  If you are able to look at all the facts and determine that either parent is unable to make good decisions for themselves then should that same person be allowed to make decisions for their Minor Children?  The obvious answer is no.

This is a standard that is not set forth in this manner in any Rhode Island law, nor in any Rhode Island case, but it is one that makes complete sense and it makes perfect sense.

Good rule of thumb from my standpoint is this.  If a judge can be convinced by the evidence presented that a parent is not reasonably capable of making decisions for himself or herself, then it follows that such a parent should not reasonably allowed to participate in making major decisions for their children until he or she gets back on track with their own life.

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

Whether you need courtroom representation or need to know your legal rights in your case in Providence or in Newport, I am here to help when you need me.


Call me for your reduced-cost advice session at (401) 632-6976.