Rhode Island Divorce Tips

Atty Chris Pearsall

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

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About five (5) years ago I didn't know what a collaborative divorce was.  Once I learned about it I wasn't so keen on the concept.  It was something new and different.  People tend to shy away from things that are "new" and "different."  

Frankly, I didn't want to make it harder for me to compete for the family law business in Rhode Island by adding something new to what I already do as a lawyer.  So I decided to stay away from it.

Strangely enough, I ended up pioneering a whole new type of practice that I developed called "Divorce Coaching."  Needless to say, it took a long time before I realized that I was introducing something that was not only "new" but something that was so new only I was doing it and because the lawyers I approached didn't want to participate because they wouldn't make enough money I became as "different" as you can get.  

Despite the fact that it was different and unexpected from a family law lawyer to actually coach people on how to help themselves and know their right that I discovered many people would just not show up if they did make an appointment.  Suffice it to say, the coaching practice was a hit and collaborative divorce is likewise doing well around Rhode Island but across the nation.  

I am no longer hesitant of pioneering new avenues law that some people may shy away from.  So let me get to it.

So, though it's been around now for some time, what is a good understanding of collaborative law?

Typically in a collaborative law process the following things occur:

1.  The parties each retain separate attorneys whose job it is to help them settle the dispute. Both the parties and the attorneys sign a Collaborative Law agreement to that end.

2.  No one may go to court without a completed settlement agreement. If that should occur, the collaborative law process terminates, both attorneys are disqualified from any further involvement or representation in the case and the parties must retain other lawyers if they wish to battle in court.

3.  The Collaborative Agreement is a fundamental part of the process in which both parties by signing the agreement resolve themselves to the process whereby they are trying to identify issues and resolve them in an amicable manner with the assistance of their requisite lawyers to insure they are advised of the law and their legal rights.

4. The agreement typically requires each party to make a full, complete and honest disclosure of all documents and information involved in the case and neither party can take advantage of a misunderstanding or a failure to disclosure information.  Such things are dealth with and usually correct to both parties' satisfaction.

5.  The agreement usually references the parties' dedication to enter this process to respect one another and not to disparage either party during the process since doing so is destructive to it.

6.  The agreement typically has paragraphs focusing on insulating any minor children both from the collaborative law process and the divorce process in the event of a successful resolution.

7.  The parties typically agree to share the cost of all experts such as counselors, appraisers, child specialists, etc.  

It is a fundamental part of the collaborative law process that the emotional issues of the parties that often cause difficult litigations are not ignored as they are in the typical court process but rather they are addressed, often using professionals from other appropriate fields so that all aspects of a divorce can be dealt with so that the divorce is addressed on all levels and an agreement is reached considering all the factors and not simply the legal ones.

There are proponents and opponents to this type of collaborative law process each with their own points and counterpoints.  Yet the concept itself is solid and recognizes not only the persons involved but the uniqueness of preserving the relationships involved with destruction of any of the persons involved.

I can see how this might well work for those with the financial means and/or health insurance coverage for possible counselors, etc... who value their family unit and wish to have their divorce end on a positive note rather than a negative one, with the goal of respecting the feelings of everyone involved and preserving the relationships that exist

Having spent some time trying to understand what appear to be varying concepts of collaborative law, I find this explanation to be the best with the only hindrance in some cases being the cost that may be needed to address all aspects of a divorce or family law matter.  

Yet if parties are going to address everything that is important in a divorce relating to themselves, and their children, it serves a positive function to pull all aspects into this collaborative law approach so that fundamental aspects of both the legal and emotional process of divorce are not ignored but are addressed so that the entire process results in a divorce which seeks to perserve all persons involved both legally, financially and mentally and hopefully their relationships as well.

So, whether you may not want to consider something new and different as it is in our nature to go with something that is typically more "familiar" and "comfortable" for us, sometimes it is best to open our eyes to new things which may, in fact, be better for us in the long run.

I have no doubt that collaborative divorce and divorce coaching are both here to stay.

Atty Chris Pearsall

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

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In another article we discussed how you could accidentally commingle inheritance money that you received and cause it to be considered a marital asset.

Many people also wonder whether it's possible to commingle pre-marital or non-marital property that they owned before the parties got married or even gifts that had been received from their parties.

The answer is .... YES!  Commingling is a legal doctrine that can be argued by any divorce lawyer or litigant and can be applied by anyone to virtually anything depending upon the circumstances.  There is no set answer to every question.

A lawyer can only give you his or her best judgment about when a material possession or a peice of property has been commingled based upon detailed information about the use or participation of the material or a peice of property during the marriage.  I have seen very different rulings by judges. 

If you take anything that would normally be outside the court's power to divide such as a gift from a third part to one person in the divorce, it is possible to make it marital if you do things that integrate that gift into the marriage and your family.

For example, Uncle Joe gives Tammy a gift of his rare stamp collection.  If Tammy were to take that stamp collection and place it for long-term storage in a safe deposit box with both her name and her husband's name on it and her husband paid extra for the safe deposit box to be particularly protected and climate controlled to preserve the value of the stamps and then Tammy later mentions to her husband that they would sell the stamps when they retire and they would use the monies to help fund their retirement, then although Tammy's gift might usually be exempt, the husband's lawyer could argue in the divorce that the things they did evidenced that it was treated as marital property and that the wife by putting it in a joint safe deposit box and mentioning it for a supplement to their retirement converted the character of the stamp collection from a gift into a marital asset.

This is just one of hundreds of examples that could be made.

Minor gifts are usually not issues in divorces.  It is only when there is suffient value attached to the gift that the other spouse might find a way to argue that the conduct of the parties was such that it was clear to both parties that it changed from the gift to a marital asset.

If you have a gift of value or something your lawyer tells you is beyond the family court's power to divide, ALWAYS ask yourself this question.  Has this item been treated in such a away that it could be viewed that it really was a family item and not merely the property of that one person who it was gifted to or who owned it before the marriage.

A Practical Tip:  It has been argued that Rhode Island law prevents a judge from awarding anything to the other spouse that was owned by one spouse before the marriage except for any appreciation in value of the item during the marriage as a result of the actions or investment in the item by either of the parties.  However, from a practical perspective, I have seen judges digress from that standard and apply the commingling principle to justify the division.

Atty Chris Pearsall

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

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It's amazing that most Americans haven't heard of preventive legal plans. I'm not sure if other attorneys are keeping them a secret because they think they might lose business or what the story might be.   Yet I know that for legal situations they are the best savings and protection that people can get for their dollar.

According to the National Resource Center for Consumers of Legal Services and American Hospital Association, you are three times more likely to become involved in a legal situation than you are to be hospitalized.  In 1997, 33 million hospitalizations were reported in the United States compared to over 100 MILLION lawsuits were filed that year.  It's Incredible!; You are 3 times more likely to end up in court than you are to end up in the hospital.

Really the best way to understand a preventative legal membership plan is that it does for attorney and legal bills what an HMO (Health Maintenance Organization) does for doctor and hospital bills.  Consider these real figures.  The national average is that attorneys want an up front $1,500 retainer and $194 per hour.  Who can afford that?  Who should have to?  Being upfront, I couldn't even afford myself and I'm in this business.

If you had a legal problem today, what would you do?

Could you afford a a qualified attorney?

Here's an example.  I know this real doctor.   We'll call him Dr. Alfred. Dr. Alfred worked hard all his life and he was good at saving money and never had to use a lawyer except for real estate purchases.   By age 69 Dr. Alfred had amassed about $1,750,000 in assets for his retirement.  Along came his son-in-law with this great business idea.   He trusted his son-in-law who presented him with a document to sign so they could be business partners. Dr. Alfred was excited and signed the paper.   Three years later Dr. Alfred and lost all his real estate, $1,500,000 in his cash reserves that his son-in-law had drained from his bank accounts and had spent $100,000 in legal fees to fight a lawsuit brought by his son-in-law to discredit and bankrupt Dr. Alfred.

If Dr. Alfred had owned a Pre-Paid Legal Insurance Plan that offered a legal discount he could have used his Pre-Paid Legal plan attorney in his state, discovered that the paper he gave his son-in-law afforded the son-in-law unlimited power over his assets and the attorney could have prevented Dr. Alfred from being reduced to $50,000 in assets for his whole life's efforts.

Think about it.  A single document destroyed Dr. Alfred's life savings and retirement.   Don't think it could happen to you?  Think again.

Should you consider getting a preventative legal plan?   Consider this.

You have health insurance but you don't PLAN on getting sick today, right?

You have automobile insurance but you don't PLAN on going out and having an accident today, right?

You have homeowners insurance but you don't plan to burn your house down today, right?

You have life insurance but you don't PLAN on going out and dying today, correct?

No doubt you got these insurances to protect your loved ones and your assets in case disaster strikes.

And disaster strikes without warning to thousands of people every single minute of every single day without warning. The time to prepare is not AFTER they have happened!   That is too late.  The time to protect yourself is NOW and that is why there is such a great need for these types of plans.

So in a country where you are 3 times more likely to be in court than you are to be hospitalized, doesn't it make sense to have a preventive legal plan?

The great thing about a preventive legal plan is that it covers ALL FOUR of your other protections!

Now, not all plans cover divorces or family court matters but many of them do, even if they give you a 25% discount on an attorney's services for the nominal monthly fee that is charged, isn't it worth it?   Imagine saving $50 PER HOUR on a $200 PER HOUR attorney.  Just 20 hours saves you $1,000 right there.

Legal plans aren't perfect.   They have their drawbacks as well as their benefits but that's a blog article for another day.   For many people, legal plans are just what the doctor ordered be it for divorce, family law and other types of cases.

Atty Chris Pearsall

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

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Here is a legal snippet that many lawyers and witnesses who have been subpoenaed in family court cases might have wondered.  After being asked about it I believe I have found the answer.  Or at least I haven't found any statute or case law that says that my answer is incorrect which is a good sign.

There you are, you've been subpoenaed to court and you've been paid a lousy $12 to $15 as a miniscule witness fee to attend on a particular hearing date and give testimony.  This includes a fee of $10.00 for the day and 10 cents per mile round trip from your home for your attendance.

So imagine that you get through the day or whatever part of it the court hears and the judge doesn't have time to hear any more of the case so it is continued to another date.  Do you have to attend the next time?

It's actually a loaded question because family court judges do this all the time.  Practically speaking it makes sense, otherwise the party who subpoenaed you would have to do so each and every time the matter was continued and would have to pay the constable or sheriff all over again in order to get you to attend.  Therefore, as a practical matter it makes sense.

Yet my thoughts are from the perspective from the person who has to return to court 3, 4, 5, 12, 15 or even more times and they feel they are bound to do so because the judge keeps saying, "All subpoenas shall continue in full force and effect."  Naturally the lawyer who issued the subpoena makes sure that language appears in the Court's Order otherwise they believe they have to re-subpoena you all over again.

However, have you ever questioned whether a Judge has the power to continue all subpoeanas in "full force and effect" just by saying those words?  I mean, we want to respect the judge and generally speaking, what the family court judge says is considered law in that case.  Plus, people are afraid to be found in contempt of a subpoena by the court for disobeying it.

There is one exception where the Judge's word or Order is not necessarily law and that is when the legislature has spoken on the same issue in the statutes.

Here's where I think many judges are "out of bounds" but they don't know it when it comes to this little addition to the orders.  Or, at least, they are out of bounds if the attorney issuing the subpoena doesn't follow through on what the statute requires.

 Under Rhode Island General Laws § 9-29-7 the Witness Fees for a Subpoena are spelled out as follows:

The fees of witnesses shall be:

For every day's attendance before the supreme or superior court, or before any other tribunal

or magistrate, including attendance in giving depositions $10.00

For every mile's travel .10

For every day's commitment in jail upon default to enter into recognizance with surety 2.00

In addition to the fees above provided, witnesses summoned and testifying as experts in behalf

of the state, or any person acting as an interpreter, before the supreme, superior, or district

court, may be allowed and paid such sum as such court may deem just and reasonable.

The statute is fairly straight-forward as to how much a witness gets paid for each day's attendance before the tribunal including mileage.  

Yet here is where the issue arises.  What if the judge keeps continuing "All Subpoenas in Full Force and Effect" so you have to keep coming back over and over and over again and you are missing work, spending mileage, jeopardizing you job, finding a babysitter, etc....

It's no secret that it is a tact of many unscrupulous attorneys to try to arrange for continuances with just that language from the judge so that eventually any witnesses friendly to you will "bow out" or they will, in fact, ignore the subpoena because they can't afford any more personal time from work, can't get a sitter or don't want to lose their job.  Then what happens?  A person's case goes down the tubes.  Usually the person who subpoenaed the people to begin with.

So, does the judge have the power to do this or not?  Let's look at another statute.  

Rhode Island General Laws § 9-17-5 Duty to Attend When Subpoenaed states:

Every witness who shall be duly served with a subpoena in behalf of any party to a suit or

proceeding, civil or criminal, and shall have his or her lawful fees tendered to him or her for his or

her travel from his or her place of abode to the place at which he or she shall be summoned to

attend, and for one day's attendance, shall be obliged to attend accordingly. [Emphasis Added.]

9-29-7 

Here's where the issue raises it's ugly head.  When you are subpoenaed the law says that you must be paid the lawful fees which are essentially stated in Rhode Island General Laws § 9-29-7.  Now note the last line in 9-17-5 that is underlined.  "[h]e or she shall be summoned to attend, and for one day's attendanance, shall be obligated to attend accordingly."

Do you see the problem?  The law says you are to be paid for at least that one day's attendance and you must attend accordingly.  How would you read that?  If you have been summoned for ONE day, and paid for ONE day, then aren't you obligated to attend for ONE day accordingly?  That's my professional interpretation based upon the plain and unambiguous reading of the statute itself.

So, let's answer the question.  Can a judge or magistrate in the family court continue in full force and effect a subpoena issued by a party?  It is unclear without any further word from the Rhode Island Supreme Court or the Rhode Island General Assembly by a new law.  However, I believe that as a matter of caution that you take the position that they CAN do so.

What's the catch?  If the attorney who subpoenaed you does not follow the law and pay you $10 plus statutory mileage for each and every day that you are expected to return to court because of that statement "All subpoenas are continued in full force and effect." Then  the law has not been met by the lawyer issuing the subpoena and therefore you do not have to attend.

That's right.  As petty as the amount may be, if you are not paid that amount before each time you are supposed to be required to appear at court it is just as if the lawyer served you with a subpoena for a single day without paying you.  No payment and the subpoena is worthless.  

So what do you do if you are a witness and the party who subpoenaed you keeps dragging you back into court by having it put in the Order, "All Supoenas are to remain in full force and effect."  If you don't get paid before the next time you go to court, then according to the laws by the 'Rhode Island General Assembly of our state you have not violated the subpoena.  Also, since you are not a party to the action then the judge does not have authority to compel you to be in court unless you have been paid by the attorney who originally subpoena you.

This is a problem attorneys have been dealing with for years.  Myself included and I am happy the a recent inquiry caused me to analyze this problem to give attorneys and witnesses, and judges what I believe to be the correct answer under the law.  I am happy to be able to provide a solution that makes perfect sense and is consistent both with a judge's discretitionary power as well as the Rhode Island General Laws.

Atty Chris Pearsall

Authored By:  Christopher Pearsall
a.k.a.  The Rhode Island Divorce Coach℠

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I can't do anything but put it bluntly.  The problem some lawyers cause when a client has an uncontested divorce case is that the attorney is greedy.  I hate actually hate to say that.  Why?  Because I'm in this profession and many people think all attorneys are the same. 

Let me tell you, we're not.  So what happens when an attorney is greedy and takes in an uncontested divorce case?  Usually the attorney hasn't billed enough for the case, or at least not as much as the attorney wants to make so the next best thing is this "cause controversy and make it a contested case." 

Wouldn't a client see that though?  Unfortunately, they don't see how skillful these unscrupulous lawyers are.  Some lawyers can turn an easy uncontested case into a contested case and make it look like it's the judge's fault or the other attorney's fault or even the other party's fault.  Anyone's fault but the attorneys.

This type of action by lawyers disgusts me.  It plays on the emotions of the parties, spends their monies needlessly, sometimes destroys family relationships, and takes away time from people's lives that they otherwise could have spent happily. 

There are things you want to look for when researching, meeting with, and hiring a lawyer.  They may seem lofty or great in a speech but they still exist and as long as we continue to promote them in life.  I live my life by them and I run my practice by them.  What are they?  They are embodied in words such as Honor . . . Decency . . . Caring . . . Respect . . . Manners . . . Integrity . . . Fortitude . . . Perseverance . . . Honesty . . .  and the list goes on.

I've wanted to give up so many times in the practice of family law because I run into some bad lawyers and sometimes they win because it's hard to beat a lawyer who doesn't play by the rules and is willing to do whatever it takes to make the money they want to make.

Yet I don't quit.  I persevere for those good people that I can help.  I keep going so that when people need a lawyer who will tell a person his or her rights and yet not cause trouble when they want to settle a case that may give away 95% of what the law says they should get.  We as lawyers are advisors and guides.  We are not here to make the decision for the client or to create situations that end up having clients make decisions that are based upon incorrect information because the attorney has caused controversy between the parties.

We're here to help people.  We're here to help them get through to a better and hopefully brighter tomorrow without being one of the factors that makes their lives worse.  That's my philosophy and no amount of money will change it.  Years ago I realized I could make hundreds of thousands of dollars if I just agreed to put my principles to one side and create controversy in every divorce I was involved in rather than helping the parties come reach an amicable resolution quickly.  Not once have I done it, nor will I ever do so.

Clients, you are the best one to look out for your own interests.  Remember, sometimes that may include as it relates to policing your own attorney too.