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January 2013

Rhode Island Divorce - Cheating Spouses and Adultery!

When someone files for divorce in the Rhode Island family court system after finding out that there spouse has had an affair or is cheating on them, they often misunderstand the affect that this adultery has on the divorce proceeding itself.

Rhode Island continues to recognize fault-based grounds for divorce as well as the more common breakdown of the marriage due to "irreconcilable differences that have caused the irremediable breakdown of the marriage".

In Rhode Island the family court judge has the power to consider the "conduct of the parties" during the course of the marriage in determining how the assets should be divided as well as how the debts should be borne by the parties.  This is the context in which Rhode Island family court judges will consider adultery in the context of a Rhode Island divorce.

Most spouses that have been "cheated on" see it as a betrayal that must be punished.  It is not uncommon for a client to expect their attorney to drag their spouse into court, subpoena the home-wrecker who cheated with their spouse, air their dirty laundry and try to shame and humiliate them both on the witness stand and then get them a big fat chunk of the marital assets.

However, this is an unrealistic view of the Rhode Island divorce process. 

A judge may certainly consider the infidelity of the offending party, yet he or she will generally do so with an eye toward the nature and length of the infidelity and what effect it had on the assets and/or debts of the parties.  Depending upon various factors, including the effect of the infidelity on assets and debts, the length of the marriage, the nature and length of the infidelity and perhaps even whether the unfaithful spouse made extensive efforts to conceal his or her infidelity, the judge may determine to award to one or the other of the spouses a greater share of the assets or a greater apportionment of the debt to offset the conduct.

However, it is important to note that it is not the court's purpose, nor is the intention that adultery is a mechanism by which a wronged spouse is entitled to exact some measure of retribution against their spouse.  Adultery is a factor that will be considered by the court but it is not a license to punish an unfaithful spouse, particularly since unfaithfulness is a measure of the personal relationship between the parties and in many instances does not have to do with the acquisition of assets or accumulation of debt by the parties. 

In the same way that child support is not invalidated simply because a parent does not receive their visitation, the expectation of a financial windfall by one spouse because the other spouse breached the "trust and fidelity relationship"  may not merit the loss of assets in the eyes of the court, especially if the breach of trust and fidelity had no affect on the assets and debts of the parties.

Adultery is a factor that is considered by the judge presiding in a Rhode Island divorce matter as affecting the equitable distribution of assets and the apportionment of debt.  If the adultery had no effect on the assets or debt of the parties, a Rhode Island family court judge has the discretion to determine that the adultery has no effect on the distribution and apportionment.

Let me help you get successfully beyond divorce and into a brighter tomorrow!

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


Rhode Island Divorce - When are the Court's Automatic Orders Binding!

Once you sign your Rhode Island Divorce Complaint . . . you are bound!  What do I mean, right?

Under the Rhode Island General Laws, the Chief Justice of the Rhode Island Family Court, Jeremiah S. Jeremiah, has set in place Automatic Orders of the family court that apply to all divorce cases.  These Orders carry the full weight and authority of the law and the Rhode Island Family Court just as if they were generated as the result of a hearing before the court. 

The purpose of these Automatic Orders is to preserve the "status quo" between the parties until the Rhode Island Family Court Judge assigned to the matter orders otherwise.  This essentially prevents the parties from "tampering" with finances, insurances, etc. . . which may place the other spouse at a disadvantage if things do not remain as the parties have historically maintained them.

For instance, the Automatic Orders would prohibit a spouse from removing the other spouse from his or her health insurance coverage from the moment the Automatic Orders are in effect for him or her.

The question then that is most crucial when considering the Automatic Orders of the Court is this . . "When do these Automatic Orders take effect?"

For the plaintiff, petitioner or filing party, the Automatic Orders of the Court are binding as soon as you sign the Complaint for Divorce.  For the spouse who is to be served, the Automatic Orders  are binding at the very moment they are served by a sheriff or constable.

As will be seen in another blog article posting, in a Rhode Island Divorce there is more to the Automatic Orders than meets the eye.  Rule of Thumb . . . when in doubt leave everything as it has been in the past.  Don't sell property.  Don't change insurances.  Don't make substantial additional charges on your credit cards.  In a nutshell . . . . don't play games or a judge just might find that your actions merit a quick trip to the ACI for a few days.
 

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

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


What is the Downside of a Family Court Appeal from a RI Divorce Decision?

You file for divorce and go all the way through with a trial but the results don't go your way so you consider appealing the judge's decision.  Should you?

Perhaps you should if you and your attorney both review the law and consider the consequences of the appeal and whether both the trial court record and existing law support a position that the judge went beyond his or her discretion, that the law supports a contrary decision or that your case is significant enough to make a strong argument for a change in the law.

There is, however, another aspect that prudent litigants and attorneys should consider, namely the workings of the system.

Depending upon the circumstance it is possible that our supreme court could simply reverse the decision and no proceedings or very little proceedings will be necessary if the case is returned to the Family Court for additional proceedings.

One possible consideration is this.  Judges are human and as humans we come with certain predispositions, notions and perhaps even biases that relate to our own experience.  

Assume for the sake of argument that you win your appeal and the surpreme court finds that the judge went beyond the scope of his or her authority and your case is remanded back to the family court where it was originally heard and most likely before the same judge.

Logically, wouldn't it seem to make sense to you that if a judge has already taken his or her time to hear the trial on your case then he or she has made his or decision based upon his or her best judgment. Might the judge be offended if his or her judgment were questioned and a new trial or further proceedings were required by the RI Supreme Court?  It's certainly possible.

 Let's take this a step further.  Might the judge, in compliance with the supreme court's rulings, now conduct further proceedings and endeavor to reach the same result as his or her initial decision within the bounds that the supreme court's findings and directives.

The end result?  You could spend thousands on an appeal only to arrive at the same result once your matter returns to the lower court.

If you read the supreme court decisions with repeated appeals you find that this is not the case in every instance, but it is certainly a downside to consider in any appeal.

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.