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June 2013

What is Commingling of an Inheritance in a RI Divorce?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Commingling, at least when we are talking about Rhode Island divorce, is the process of changing the character of a non-marital or pre-marital asset into a marital asset.

Why is that important?  Because generally, non-marital assets and premarital assets that have not been either

1) Commingled, or

2) Transmuted 

are not part of the marital estate and belong to the person who first owned them or received them.

To avoid confusion let's deal strictly with commingling in this article.

Generally, Inheritances or Gifts to one spouse of the marriage from a third-person are not part of the marital estate and are not subject to the court's power of equitable distribution.  They simply belong to the person who initially received them.

However, there are two exceptions, namely, "commingling" and "transmutation."

We'll only deal with commingling for the time being.

 Each case is dependent upon the facts and circumstances of that case.    However, there are a few fundamental ways that visual people can understand this concept.  I'll show one way very quickly in this brief article.

Your Account



You have a bank account solely in your name.  Imagine this glass is the bank account.

Suddenly someone dies and you inherit $50,000 and put it in that account.  



Money in Account
$50,000 in Your Account





Your $50,000 is the water that is now in your account which is the glass.




Since the account is solely in your name and the money was only inherited by you, it is yours and it is protected as long as it stays this way.  

There may be numerous assets that were obtained during your marriage from your earnings or your spouses earnings but the $50,000 is a non-marital asset and has been protected by keeping it separate from assets or debts related to your marriage.  

In short, it is a non-marital asset and it is not subject to distribution in a Rhode Island family court divorce or separation proceeding.

Now, let's see what happens with an example of commingling.

Joint Bank Account
Joint Account with $54,500


This time instead of having your own account, you and your spouse already had a Joint Account that has $4,500 in it that came from your income, yours and/or your spouse's income.

So the joint account had $4,500 in it and you deposit the $50,00 that you inherited into it. 

Look closely at the Joint Account on the left that now has $54,000 in it. 

If you were to get divorced right now and this account had to be divided, you should not expect to get that $50,000 back as an inheritance.  


Why?  Because you have commingled it with the other money.  Look closely!  If the water is the money, then the water molecules are the dollars in the account.  Can you tell which water molecules were in the glass before and which ones are the new ones?  No, you can't and neither could a judge.  They have been so mixed together they they must be considered as just one account.  

Rhode Island law doesn't allow you to simply cut the $50,000 back out again.  Now it is in a glass that is in both names and it is impossibly mixed together so it can't be unmixed, so Rhode Island Law says the entire amount of money belongs to both you and your spouse and the judge is likely to split all the monies in the account on a 50/50 basis. 

Commingling is the same concept as blending or mixing.  If you blend or mix something enough with your spouse or your family life that a judge considers it marital, then the judge can determine that you have commingled it and instead of it being your single property anymore it can become marital property and divided by the family court.

The moral of the story.  

Generally speaking, if you want something to remain separate then keep it separate, entirely.  If there had even been $1.00 in the Joint account and you put the $50,000 into the Joint account even for 10 minutes, you would find out that you put it in there for 10 minutes too long and it would have been too late.  You would have commingled the $50,000.

What is Collaborative Divorce?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Readers, Correct me if you think I am wrong.  I've been reading a few books and websites that are fairly well read by attorneys and legal professionals and held in reasonably high regard and they have caused me some confusion.  If I were to combine the explanations I have read and heard on collaborative divorce, I have heard that it can be a divorce involving attorneys, mediators and/or other professionals such as therapists, psychologists, clinical social workers, psychotherapists and any number of legal and/or mental health or other professionals capable of mediating parties to a divorce.  

From what I have understood, this is way off the mark.  Frankly, I'd like to make sure I have this right.  To my way of thinking a collaborative divorce involves clients and attorneys.  If other professionals are needed in addition to the attorneys then the lawyers would seek their assistance and/or participation for the betterment of the client's involved.

In a collaborative divorce the parties select attorneys to advise them and help them through divorce settlement negotiations.  Typically the parties and their attorneys all sign what is often referred to as a "Participation Agreement/Participation Contract."  The agreement essentially sets forth that the parties agree to whatever written and signed settlement agreement that they reach.  Additionally, the attorneys agree that if, or when, the matter goes to litigation that neither attorney will represent the parties involved. I

The benefit of using the collaborative divorce process as I understand it, is that each party reaches a settlement they are bound to by their own agreement but they do not do so while being ignorant of their legal rights.  Each client has their own attorney for purposes of reaching a settlement.  There you have it, the ultimate goal.  The idea is to reach a settlement and know your legal rights and the pros and cons for each decision you make and how it will affect you.

So, by hiring a collaborative law divorce attorney you hire the lawyer to help you settle the case.  If the case doesn't settle using the collaborative law attorneys then each of the clients must get a new lawyer and duke it out in court.  

Do I have it wrong?  Some colleagues tell me no, other colleagues tell me I do have it wrong and that mediation itself is also a collaborative divorce process.  I don't equate the two the same way even though the word "collaborative" might be a good word to describe the mediation process.

Someone obviously came up with this concept of collaborative law just as I founded the concept of Divorce and Family Law Coaching from the legal dynamic and not the emotional and therapeutic approach that many counselors, therapists and psychologists have developed throughout the country.

I would like the input from attorneys, judges, consumers and anyone who cares to chime in.  I am a person who has wanted to know something and in knowing it to know that it is right.  Does anyone have some good sources that might be found more reputable than others?  I most assuredly won't dwell on the topic and I will participate as a collaborative lawyer as I believe the concept exists because I see the benefits received by clients in choosing this method and in operating in the way I have described.

I welcome your feedback so that I may continue to improve my practice for my clients.

Ohio Judge Hits Home with This Rhode Island Divorce Lawyer!

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Dad doesn’t want his perks to count in calculating child support

[ Begin Excerpt ]

A father of two says his employer-paid perks including a Lexus automobile, cellphone and four season tickets to Ohio State University football games should not be included as part of his income when calculating how much he must pay in child support.

Jeffrey Morrow, president of the Ohio College of Massotherapy in Akron, wants the Ohio Supreme Court to overturn decisions by two lower courts. He argues that only in limited circumstances does state law require inclusion of company-paid benefits.

Some justices seemed dubious during arguments before the court yesterday.

About “$16,000 worth of stuff comes to him. ... Everybody else pays for it; he gets it for free,” Justice William M. O’Neill said.

In 2010, Morrow asked the Medina County Domestic Relations Court for a reduction in his $2,198-a-month child support because his annual earnings had dropped by about half, to $75,000, since he split several years earlier from Sherri P. Becker, the mother of his two children. The two were never married.

According to court records, Morrow had been earning about $143,000 as an administrator at the college and owner of an online subsidiary but claimed that declining enrollment necessitated his salary cut. The court refused Morrow’s request — a decision later affirmed by the 9th District Court of Appeals — finding his gross income did not warrant a change.

[End of Excerpt]  See The Columbus Dispatch


Insights by Author:  Christopher Pearsall

Whoa Now!  I know this is not Rhode Island law we're talking about but even as a matter of common sense I had to address this one.  Can Ohio be that far off the mark?  The second to the last line of the entire article stopped me cold.  It was by one of the justices and stated as follows:

"To have us decide the way you want us to decide it, we would be putting out a case that none of that counts.”

That's right judge!  It would.  Yet you make it sound like what Mr. Morrow's attorney is asking you to do is something inconceivable.  Frankly, without proof of some actual collusion here.... that makes perfect sense to me.

Let's look at this plainly.  His income gets cut from $143,000 to $75,000 and you don't think that warrants a reduction in child support?  We're not talking about a pittance here!  That is almost half of his income!!

So what's the basis for making such a statement?  Do you just think that he's trying to stiff the mother of child support for the children?  That seems to be what the Ohio attorney for the mother is trying to allege by bringing up circumstantial evidence that Morrow isn't just an employee but he's on the board of directors with his Uncle and his mother actually founded the school.  So is there collusion here for this guy to trade income for perks from the school by using family influence?  Is that what the judge what thinking in denying the reduction of child support when the income was cut in half allegedly because enrollment was down?

So what was done here?  Was there any proof of collusion that family ties worked to intentionally cut Morrow's income?  Was there any evidence as to whether the enrollment was down or how the finances of the school were doing?  Or is it all suspicion and conjecture because he received about $16,000 in perks from the school that other people at the school normally had to pay for?  Was Mr. Morrow found to be inconsistent in his testimony so that he was no credible?  Or did the judge just not like the way he was dressed on a particular day?

I'm well aware that in Rhode Island some men do pull this crap by being chummy with their boss or they are part of a family corporation so they try to help the son or brother or uncle out.  I'm not strickly an advocate for men.  Not by any means.  I've represented plenty of women who have placement of the children and I can see the guy is trying to (and this is the correct way to phrase it... at least in my humble opinion) screw the children out of the support they are entitled to.

Yet I have an issue with the way in which this was addressed.  Assuming that the newspaper quoted the judge correctly.... then it most certainly is more than enough evidence and basis to grant a reduction in child support if the man paying it receives half of his original income.  If you don't find it believable that this is the case, then I suppose it is the judge's right to use his or her discretion to make a judgment regarding the credibility of any witness and how much weight the person's testimony is to be given.  However, if there can truly be a reduction shown and there is no actual proof that it is by collusion with family members, then frankly I don't think so much weight can be placed against testimony for this man that it negates a $60,000+ drop in income.  

That's not a basis for a reduction?  Okay.... I wasn't there... but I've seen this before and I'd be willing to bet it's just a gut feeling by this judge and perhaps not based on any "actual proof" that points to an intentional attempt by Mr. Morrow to sidestep his child support obligation.

Should a car and some other pluses that the school pays for be considered in his income for purposes of child support?  The justification seems to be that others are paying for these things but the school is paying for it for this guy so it should be "other income."  That's what is being argued... namely, that it IS "other income" and it should fall within their state's child support statute.

Judge, did you hear testimony as to whether the school takes the car, etc... as school business deductions, or notes them as expenses?  Did you hear whether or not the vehicle is in this man's name or whether it is available for his personal and business use?  Tax treatment by the school should make a huge difference as to whether it truly is "other income."  If it amounts to $16,000 as the article notes, that still falls far shy of the $60,000+ in income he lost.  Yet no relief at all is to be awarded to Mr. Morrow?  Wow... that makes the standard huge for anyone to attain in your eyes.

Here's my greatest problem with things like this.  They are just like the benefits that many of the firemen and police officers have that I have represented.  The women who have placement of the children want to include everything.

Here's the real kicker in my humble opinion.  How can a fireman or police officer use their daily uniforms and gear to pay their child support?  If they get a mandatory pension payment each year that they can't touch, how can they spend that to pay their child support?  What about the educational payments these civil servants receive when special training classes are paid for them?  Can these be used for child support?  None of these things are liquid.  None of these things can be touched when you want them.  95% of  the time unless a pension is vested there is no way our civil servants can even get at these "things of value" to pay additional child support when the court decides to throw these things in.  It's absurd.  The court could actually be subjecting then to receiving benefits instead of actual pay to live on without a choice at all.

Okay... I'm off the bandwagon.  It makes no sense to me.  Items of value that can't be liquidated can't be used to pay the child support and leave less disposable income for the payor to survive on.   

Judges, keep in mind... the payor still needs to live too.


  • Other Interesting Stories about Child Support


The Rhode Island Child Support Garnishment System has a Glitch!

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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So let's say that you have a choice with your spouse about whether or not your child support is garnished or not.  My suggestion?  Avoid garnishment through your employer if you can.  

Here's the "glitch" that gives you the reason why.  If you get paid weekly and your employer garnishes weekly you may think that you are okay and you're all paid up, right?  

After all, you were told to pay weekly and every week you didn't get that money.  So you should be all set because your employer took the money out and your employer is going to send the money to the State of Rhode Island so that the placement parent gets it to cover your child support for your child(ren), so you're all set right?


Employers have to garnish based upon what the Court Order says but they almost never send the money in to the State of Rhode Island on a weekly basis because of the overhead of bookkeeping costs.  In fact, if you're lucky your employer will send the money in monthly.

So here is what happens when the State of Rhode Island gets your full month of payments for the entire month.  Let's say that your payments are for the month of May so that on May 31st your May garnishments are sent to the court.  The court's computer system normally shows that you are late on your child support by 3 weeks and then you're finally paid up.  No big deal, right?  

Wrong again!  Why?  

Because in the State of Rhode Island's child support computer system you are charged interest on any unpaid child support at 12 percent per annum (i.e. per year) which is calculated on a weekly basis.

So here's what I've seen as an example.  You'll get the idea very quickly.

Let's take Jason's case.

Jason pays child support for his 3 children of $225 per week.  His employer garnishes him on every Friday when he gets paid for that money.  Unfortunately, the employer sends the money in for Jason's payments at the end of the month.  By the time it's received and processed it's not recorded as paid until until the first week of the next month.  So according to the computer then Jason has missed 4 payments and then when the 5th payment is due he pays 4 payments all at once.  So for each of the 4 weeks that the computer says Jason is late, Jason gets charged 1 week of interest.  

One (1) week out of 12% for a whole year is .00232%  So let's work it out for Jason.   Jason's $225 a week x .00232% which is $0.52. For the first week.  No big deal right?  Sure, it doesn't seem like much but that's 52 cents you shouldn't have to pay.  

In the second week, the computer would have showed $450 was late.  So for that week the computer assesses Jason 1 week of interest on that entire amount.  So that is $450 X .00232% in the second week. This time Jason is charged interest in the amount of $1.04.  The third week is also late so that is $675 in total that is late for that week.  The math is the same.  This time the computer charges Jason the amount of $1.56.  The fourth week is also late so that is $900 that is late for that week.  Once again Jason is charged interest in the amount of $2.08.

Now on the fifth week the employer has paid the previous four weeks but guess what?  Due to the processing time the fifth week is likely to be late as well.  This time Jason is charged interest on $225 again at $0.52 because the 5th week is the only one that is late.

Do you see the problem?  

Jason will always be behind until he realizes the problem and corrects it.  The interest will continue and eventually start to grow at an exponential rate until it is literally thousands of dollars and sometimes tens of thousands of dollars if it is not discovered.  

In just that first payment by his employer, Jason owes another $5.20 for the first four (4) garnished payments.  It doesn't seem like much but if the employer has now put Jason behind by a week so he will always be behind and this will keep growing and growing.

That's the problem.  You don't even want to see what he numbers would be if you had your pay garnished like that for 12 or 14 years of a child's life.  We are talking months of ADDITIONAL payments that you could pay because of a flaw in the law and a flaw in the processing through the employer and the computer system.   Everyone has still followed the law but the law has a problem.  It doesn't account for the garnishment time versus when the court system accounts for when it is paid as compared to when the employer sends in the money.

The end result?  Garnishment through employers may seem the easier route, but for the person paying the child support it almost always causes additional interest to be owed with every payment.  

Until it is corrected either in the garnishment law, or the recording system, or the computer program, it will continue to exist.

The conclusion for those paying child support . . . don't ignore "The Glitch!"


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