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September 2013

Rhode Island Divorce: Debt Issues Can be Tricky!

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Atty Chris Pearsall

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

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Many times it is the debts that can be the trickiest part of the Rhode Island Divorce.  In particular, one phrase you will often hear attorneys and mediators use is "indemnify and hold harmless".

Let me use it in the context of a Rhode Island Divorce Decree so that you can get a true understanding of how it is used.

1.  The Husband shall be solely responsible for the remaining balance on the Capital One VISA which is $3,488.00 and shall indemnify and hold the wife harmless with respect to same.

The language is important even though to some it looks like a bunch of legal gobbledy gook.

Let's look at the word "indemnify".  In the context of this Rhode Island Divorce decree provision, this means the husband must secure and even guarantee the spouse against legal responsibility for the Capital One VISA debt of $3,488.00.  For instance, if the wife were to get sued over this debt, this provision would require him to defend her, possibly pay her attorneys' fees and costs, and even pay any judgment and continuing interest that might be rendered against her.

Now let's look at the words "and hold the wife harmless".  The words mean exactly what they say.  The husband must hold the wife completely harmless from any . . . and that's the key word. . . ANY. . . harm she may sustain relating to that debt.

For instance, let's say that except for that Capital One VISA debt that the wife has impeccable credit.  Yet her husband has not paid the obligation on time and is three payments behind.  The wife tries to apply for a mortgage for a house and is denied because of the late payments by the husband.  In fact, she can't get a mortgage anywhere.  The husband now has a problem because he must hold the wife harmless for any damages relating to that debt obligation.

The question is actually, how will the court's treat it if the parties return to court.  The husband might be found in contempt of court for Provision #1 of the Rhode Island Divorce Decree but what is the remedy.  The husband cannot reverse time and make the payments on time.  The damage has been done.  What remedy might the judge use?

Do you see why debts can be tricky?

What would happen if the language weren't in there at all?  What could the wife do?  Anything?

There are answers.  The question is .... do you know them.  

Are lawyers necessary?  If you don't know these answers then you understand why we are here.

Rhode Island Divorce - Are the Rhode Island Family Courts against Fathers?

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Atty Chris Pearsall

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

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Are the family courts slanted against fathers?  The answer may not seem as simple as one may first think.  Obviously, a divorce and the disassembly of the family unit has to, by necessity, result in the separation of living arrangements for children and their parents, as well as an increased financial strain on the parties and an acceptance of a lowering of the standard of living which the family unit had come to enjoy while it was still intact.

It may strike many men as ironic that a culture such as ours, where women enjoy the many hard-won rights of equality and recognition as equals of their male counterparts, suddenly reverts back to the archaic position where woman are considered the only naturally qualified caregivers of children and therefore, entitled, merely by their gender, to have placement and primary care-giving rights to their children, trumping the rights of fathers.  Many of these fathers, previous to the break-up of their families, took active roles in parenting and care-giving, in addition to providing income for the sustenance of the family.  The mothers of these children may have also had jobs outside the chores of the home, or they may have stayed at home in a capacity of what is now colloquially known as “Stay-at-Home Moms”.

Those women, who have stayed at home to provide particularized parenting and individual attention to the children of the family, have a compelling argument to, not only have primary placement, but to have the father continue to financially bear the entire burden of the expenses associated with the children and herself as well.   She would argue that her services are indispensable to the continued welfare of the children and her primary function was traditionally to care for the children and not to earn income for the family.  By implication, she would argue, this arrangement should not change merely because of a divorce.

Dissimilarly, so-called working mothers will also argue that they should be deemed the primary caretakers and awarded placement of the children. While their argument, that they should not have to provide a source of income toward the maintenance of the children, will be diminished (especially the older the minor children are and the longer they have worked outside the home), their traditional roles of cooking, cleaning, laundry and being the tender hands of motherhood, will come flooding back to elevate their argument to a pedestal which still elicits a knee-jerk reaction to the hallowed image of mother and child.  A culture that has touted itself as democratic when it comes to the need of children, and the equal importance of having both parents participate in the upbringing of children, backpedals drastically in the context of a divorce and allocates an unfair advantage to women.

So what is a father, contemplating separation from his children, to do?  Change the system?  Not likely.  Cry foul?  Unhelpful.  Understand and work within it, arguing for as much participation in his children’s lives as possible and also, as much financial accountability from the children’s mother as well?  Yes.  And know the law.  Know the possibilities.  And be realistic. 

The problem needs to be broken into components: custody, placement, visitation and child support.  Each of these topics is dealt with separately by the courts and each issue is not necessarily a foregone conclusion.  Each case is factually driven, dependent upon the judge who hears it, and reliant upon the attitude of the parties and the representation of the attorneys who represent them.  Know the law and the arguments on behalf of fathers.

Co-authored with Attorney Norbara Octeau (Feb 2007)

Rhode Island Divorce Mediation - What is it, really?

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Atty Chris Pearsall

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

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Rhode Island Divorce mediation is not a new concept.  It may or may not be of benefit to you in your spouse in resolving your divorce issues.

Divorce mediation typically involves you and your spouse agreeing that you will sit down with a third party as a mediator in an effort to reach an agreement that is acceptable to both spouses for the resolution of the divorce . . . or perhaps better referred to as the settlement of the marriage.

It remains controversial as to whether the mediator must be an attorney or whether another third-party good at negotiating solutions to family issues is sufficient.   From the perspective of a Rhode Island lawyer who focuses his legal practice in the areas of Rhode Island divorce and family law I can see the pros and cons of using either. . . . and they are significant.

Consider this one example:

You and your spouse either know or agree that you will get divorced.  Your spouse suggests that you can reach an amicable resolution by sitting down with a Rhode Island marriage and family counselor who has had success in helping couples find common ground deciding what to do to finalize their divorce.

You and your spouse go to this Rhode Island marriage and family counselor.  A portion of the mediation session goes like this.

Counselor: [To Both of You] Now, I know this divorce isn't going to be easy for either of you but you both need to be able to survive and move forward with your lives after this is over, wouldn't you agree.

Parties:  [Both nodding]

Counselor [to You] :  Okay.  Now I understand that you've been the main earner in the household, is that right?

You:  Yes, that's correct.

Counselor [to Your Spouse]:  And you work part-time to help out with the expenses when needed but you mainly use the money you make for your own personal spending money, is that right?

Your Spouse:  Yes, that's about right.

Counselor [to You]:  Now you have a college degree, is that right?

You:  Yes

Your Spouse:  And I have my high school diploma.

Counselor:  And how long have you two been married?

Your Spouse:  We've been together for 15 years and married for almost 12 years of that time.

Counselor:   And during that time,  who has been making what portion of the income for the most part?

You:  I've made about 80 to 85% of our income.

Your Spouse:  And I've made the remaining part.  I think that is a pretty good estimate.

Counselor:  Now in my experience only uncivilized and vindictive people go through a divorce and try to hurt their spouse.  I don't think either of you fall into that group because you're here meeting with me today, is that fair to say.

Both You and Your Spouse:  Yes.

Counselor [To You]:  Okay  . . . now you understand that your spouse is going to have a much harder time financially to make a go of it without your income, right?

You:  Well, yes.

Counselor [To You]:  And it's no secret that your spouse has been relying on you financially for the past 12 years to survive, right?

You:  I guess so.

Counselor:  Well, here you are getting ready to go through your divorce here in Rhode Island and it's important that we agree regarding the things we're discussing here today so it's important that we are sure about thing that we agree on so it's better if we don't guess.  Has your spouse been providing mostly for her own support for the past 12 years?

You:  No.

Counselor:  Has your spouse been relying upon someone else other than herself for her financial needs?

You:  Yes.

Counselor:  Okay, can you give me that person's name and address.

You:  Well, that person is me!

Counselor:  Oh... there isn't anyone else?

You:  Not that I know of.

Counselor [To Your Spouse]:  Well, is there anyone else that you've been relying on for your financial needs?

Your Spouse:  No.

Counselor [To You]:  So is it fair to say that your spouse has been relying on you these past 12 years?

You:  Yes.

Counselor [To Both of You]:  Now you both realize that your divorce is going to change that, right?

You and Your Spouse:  Yes we do.

Counselor [To Both of You]:  And you both realize that your spouse is going to need to survive financially after this divorce, don't you.

You and Your Spouse:  That makes sense.

Counselor [To Your Spouse]:  Now you probably figured out already that you're probably going to have to work on a full-time basis and take care of yourself after this divorce is done.  Have you considered that?

Your Spouse:  Yes.

Counselor [To You]:  And you've probably figured out that you're probably going to have to help your spouse financially for a time, right?

You:  What?!?

Counselor [To You]:  Well, your spouse has been relying on you for 12 years.  We just talked about that a minute ago, correct?

You:  Yeah.  What's your point?

Counselor [To You]:  And you agreed that you both need to be able to survive financially and be able to move on  with your lives after this, right?

You:  Yes I did, but. . . [trailing off]

Counselor [To You]:  You didn't expect that you were going to support your spouse for 12 years and then just get a divorce and the family court would just let you walk away did you? 

I mean . . . this is 12 years you've been doing this for your spouse.  Doesn't it make sense that the Rhode Island family court is likely to tell you that you'll need to provide some financial support to your spouse for a bit longer so there is time to recover financially?

You:  Well I didn't think I'd have to pay . . .

Counselor:  But it makes sense,  doesn't it?  You supported your spouse for 12 years or more  and you are the one that makes most of the money.  Your spouse needs a little bit of time, probably a couple of years, to adjust to this huge change, get new job skills, work up to a full-time job and perhaps develop skills for another job.

You:  Yeah but. . . [thinking]

Counselor:  So you need to be prepared to help out for some period of time, it's only fair isn't it?

You:  I suppose so.

Counselor:  Now you've built up a pretty sizeable retirement account, do I have that down right?

You:  Yes . . . I think iw was about $175,000.00 as of the last statement.

Your  Spouse:  Let's keep in mind that there's some infidelity here.

You:  Well you drove me to it.  If you weren't so cold and distant I wouldn't have had to find someone who cared and could give me what I needed.

Counselor:  Okay . . . let's remember that this isn't to try to resolve all of your personal issues, this divorces mediation session is for us to see what affect all of these things have had on you and how we can work out an agreement for your divorce.  The idea is, what can we mutually agree upon so that we can help you move forward with each of your own separate lives after this is all over.

Your Spouse:  But that's what this divorce is all about?

Counselor:  I can completely understand that you feel that way, and if I didn't know better I'd probably agree with you, yet in the end this is all about a relationship that has broken down and can't be fixed.  When that happens people go through a legal divorce proceeding.  What we're here about today and what you both hired me to do is to try to see if we can reach some common  ground to go your separate ways fairly.

Your Spouse:  Well, I want it all.

You:  All of it?

Your Spouse:  I think it's only fair since you cheated on me. 

You:   Are you crazy?

Your Spouse:  You should have thought of that before finding another bed to sleep in.

Counselor:  [Interrupting the squabbling] Are we done?

You and Your Spouse:  Done?  What are you talking about?

Counselor:  We're done, right?  You two just want to hurt each other so we're done, right?  I've earned my fee and you can go into court and just scream at each other.

You and Your Spouse:  No... [you] .     No.  [your spouse].

Counselor:  Then let's look at things here.  Is this a fault divorce?

Your Spouse:  No it's not.  My attorney says I should file based on irreconcilable differences.  But I deserve something.

Counselor [To Your Spouse]:  Well perhaps that's true yet isn't ALL of it a bit much?

Your Spouse:  Not to me.

Counselor [To Your Spouse]:  Okay... you say that you were cheated on, right?

Your Spouse:  Yes I do.

You:  It's not true though!! [very defensively].

Counselor:  Okay, I'm not going to agree if it's true or not, but assuming it is true just for the sake of argument, how much did this affair... affect the value of the $175,000 retirement plan?

Your Spouse:  How much did it affect the retirement plan?

Counselor:  Yes. 

Your Spouse:  It didn't.

Counselor[To Your Spouse]:  It didn't affect the retirement account at all?

Your Spouse:  No.

Counselor [To Your Spouse]:  Then why are you asking for all of it?

Your Spouse:  Because I deserve it!!

Counselor [To Your Spouse]:  Why?

Your Spouse:  Because of the affair?

Counselor:  So what you are saying is that if you were originally entitled to 1/2 of the retirement account that you are entitled to the other $87,500 because you were cheated on.

Your Spouse:  [Hesitating]  Well. . . . yes that's what I'm saying.

You:  I did not cheat on you or have any affair!

Counselor:  [Interrupting again] . . . You're hurt.  I understand that.  And maybe that is worth something financially . . . yet it just doesn't seem quite reasonable to ask for the whole retirement account when you even say yourself that the affair didn't hurt the retirement account or your part of it.  A judge might give you half or a little more but I don't think a judge would give you all of it.

[Silence as Counselor thinks...]

Counselor [To Your Spouse]:  Assuming just for the sake of argument that there was an affair and no damage was done to the retirement account as you've already said, what do you think is reasonable to ask a judge for.

Your Spouse:  I don't know.  I'm not a judge.

Counselor:  Well what does any affair have to do with all the hard work and deposits that are made into a retirement account if you were to get 1/2 of it right off the bat?

Your Spouse:  Well it doesn't have anything to do with it when you put it that way.

Counselor [To Your Spouse]:  Okay, well we've agreed that you will need some financial help for a bit of time to get on your feet.  Keeping that in  mind, how much of the retirement plan would you agree to take in order to resolve this issue and get on with your life?

Your Spouse:  75 percent.

You:  You are kidding me.  For an affair I didn't even have?!?

Counselor [To You]:  So that isn't acceptable to you, right?

You:  No!  That's robbing me.

Counselor [To Your Spouse]:  Okay, is there a lesser amount that you might consider.

Your Spouse:  Sure.  Give me the whole thing and I won't take anything from you to get by until I get on my feet.

Counselor [To You]:  What do you think of that?

You:  [Thinking]

Your Spouse:  Otherwise I'm going to go to court and ask for financial help for the next five (5) years plus 75% of your retirement.

You:  [Frustrated] ..... Fine.

Counselor [To You]:  Fine to what?

You:  [Still Frustrated]:  If I don't have to give her any extra financial help then she can have the entire retirement account.

Counselor [To You]:  Are you sure?  We're going to set this down in stone so this needs to be firm that you absolutely agree to this.

You:  Yes... yes... yes... I agree.  Let's move on.

In this Rhode Island Divorce mediation setting you can see the interpersonal skills of the Marriage and Family Counselor at work.  The mediator tries to work with each party, keeps him or her focused on the issues at hand using excellent personal relationship skills and discusses the various positions without taking the side of either party.  Logic and common sense are a part of the dialogue yet he or she does not use legal arguments.  The parties are drawn together toward a resolution that each agrees upon that the parties agree will be committed to paper and signed as a resolution of their divorce issues.

The pros of a third-party divorce mediator with counseling and/or psychological skills but who is not law trained are seen mostly in the method used by the mediator/counselor to bring the parties together by agreeing in part with each of their positions, providing understanding and also redirecting the party to another way of thinking about a situation without taking on the role of being an advocate for the other party.

The con of using a third-party divorce mediator who is not law trained is the lack of practical family court experience and knowledge of the process.  In this particular case, an attorney acting as a mediator for a divorcing couple would be inclined to call to Your attention that alimony in Rhode Island is rehabilitative in nature, may be very limited in time or scope and is also dependent upon Your income and other assets that may be available from the marital estate.  This is something a third-party divorce mediator will not usually undertake since the objective of a mediator in this instance is simply to reach an agreeable result and not necessarily achieve a fair result based upon how a Rhode Island family court judge is likely to rule.

The pros of using a law trained mediator are obviously the cons of the third-party counseling divorce mediator.  Law trained mediators (such as lawyers focusing their practice in divorce and family law) bring with them the realistic and practical real world results that come from seeing actual cases before the court.  This would seemingly lead to a more equitable result or perhaps a result that is more in accord with a result that you might receive from a Rhode Island Family Court Judge presiding over your divorce.  Agreements by law trained mediators are more likely to encompass a whole agreement which is dependent upon each of it's components (i.e. it is a package deal) in order to work as opposed to a bunch of individual elements that are segregated and agreed to one at a time.

The con of using a Rhode Island law trained mediator (i.e. Rhode Island Family Law Mediator) is the lack of any formalized counseling and/or psychological training which helps to facilitate the atmosphere where the parties are drawn together to reach agreement.

If at all possible a Rhode Island law trained mediator who is regularly practices before the Rhode Island Divorce and family court system and also has background in counseling and/or psychology is perhaps the best bet both for reaching an agreement generally and in particular for reaching an agreement that is an accordance what a Rhode Island Family Court judge is likely to order.

Request for Relief Issues in a RI Divorce Complaint Matter!

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Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
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In a Rhode Island divorce proceeding the filing spouse is often concerned about the relief that is requested in the divorce complaint itself. 

This is particularly true if the spouse filing for divorce in Rhode Island wants to keep things amicable and is concerned about their husband or wife becoming upset or even fanatical when they receive a divorce complaint that requests something that the other spouse believes is outrageous or unreasonable under the circumstances.

In a divorce complaint many attorneys will prepare a complaint for divorce that requests virtually every form of relief that the filing party might want from the court.  Thus, an attorney may prepare a divorce complaint for filing in the Providence County Family Court that asks for alimony, placement of the minor children, child support and resumption of maiden name.  This may be true even if the attorney has been told by the client that he or she does not want alimony or to resume her maiden name.  

These provisions are often included by the attorney as a precautionary measure to ensure that the client does not waive that relief if something changes and he or she changes their mind after the complaint for divorce is filed.  In truth, it is a good practice when dealing with a client who is undecided or who seems to hesitate about any particular form of relief.

I personally don't disagree with the idea of including every possible form of relief in the request for relief regarding a client so as to make certain that the client has not waived any relief he or she may want after the complaint has been filed.  However, it's best to strike a balance here and discuss the matter with the client.  If the client expressed identifiable uncertainty to the attorney about the specific type of relief requested, it is better as a practitioner to request it in the complaint and ask the client for permission to include the provisions he or she expressly stated were not desired.  If the client is opposed to requesting, for example  "alimony" in their divorce complaint because he or she is afraid that the other spouse will take action to retaliate, then it is a better practice to listen to the client and exclude that provision it the divorce lawyer determines that it would be a marginal alimony case and simply make sure that you include for the client a sentence in the relief requested area of the divorce complaint that you also request "and any and all relief that this court deems fair and just."

You as the client should be aware that in practice things may be a bit different than a strict application of the law.  When the little clause just mentioned above is included in the complaint, then Rhode Island family court judges will generally allow an amendment of the complaint to include the requested relief later in the proceeding if there is a justifiable basis for doing so.

Ultimately, you are the client and you are in charge. If you don't want particular language in your Rhode Island divorce complaint then it is up to you to tell your Rhode Island divorce attorney that you want the language removed.  You may do this even if your attorney advises you that the language should remain for your protection.  This does not mean that your attorney must agree with you, nor does it mean that your attorney must continue to represent you if he or she thinks you are making a grave mistake. 

On the rare occasion an attorney may even refuse to proceed as your counsel if you want to exclude certain language that your divorce lawyer finds is crucial to your case.  Though this may be merely a precaution against any potential malpractice claim against the attorney later, it should be taken as a strong indication that if your attorney is willing to go this far to ensure that the language is included, that you, as the client, should probably defer to your attorney's advice.

In the end, a good attorney will advise you of the various considerations involved but ultimately defer to your wishes on the vast majority of issues even if he or she finds them to be contrary to your best interests.

It is good for the lawyer and client to reach an understanding on all family law issues in order to strike a balance between your personal and non-legal concerns as the client and the advice of an experienced and licensed legal practitioner. 

When in doubt, it is always best for you as the client to make the extra effort necessary to retain a lawyer with a dedicated family law practice who practices regularly (weekly if possible) before the Rhode Island Family Courts.

You are the client.  It's your life.  A good divorce lawyer who cares about your case will discuss all related matters with you and work with you on them to do what is best for you regarding your legal and non-legal concerns.  Once again, it is your life.  Don't settle for anything less than what you want and what you determine is in your best interests.

Rhode Island Divorce - Bank Accounts And the Names on them Does Matter!

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Atty Chris Pearsall

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

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If you are going through a divorce in the Rhode Island Family Court system then the bank account(s) you have either jointly or individually with your spouse may be one of the first subjects that is addressed whether you like it or not.

Both husbands and wives who are contemplating divorce from their spouse will generally have as one of their main concerns the bank accounts.  This is for any number of reasons.  The first reason is because it is likely to be the primary source of any immediately liquid financial resources to pay a divorce attorney to get your through the family court process.  The second reason may be because it is this source of funds that is used for the payment of marital and/or family obligations and that without those funds the bills simply won't get paid or the children won't have food to eat.  The third reason may be that one spouse is simply afraid that the other spouse is going to lock them out of the bank account and/or take "their half" of the money and it will never be seen again.

Perhaps one of the most often questions that is presented in the course of my divorce consultations with prospective clients is this, "The account is in both or our names.  I'm worried my husband (or wife) will file for divorce and take all the money.  What should I do?"

Technically speaking, before the divorce proceeding is filed the money belongs to both persons on a joint bank account equally.  In otherwords, you both have a 100% right to the monies in that account (absent other extenuating circumstances that may provide an argument to the contrary).  Therefore, if either of you take all the monies out of the bank, you have not committed any wrongdoing.  That is not to say, however, that you then have a right to all of that money or that you will not have to account for it later.

Rhode Island laws regarding divorce follow the principle of equitable distribution.  Although this does not always mean equal distribution between the parties, this is generally where most judges start in a divorce case.    Assuming that this is where most judges will start, it is not unusual nor unfair that a divorce lawyer will counsel his or her client to remove only half of the monies in a joint account to protected himself or herself from being divested of all the monies by the other spouse.  This, however, should come with a caveat as well.  A divorce lawyer giving this advice is usually NOT saying that when you remove half of the monies in the marital bank account that you are entitled to keep those funds, or that you will not have to account for them or that you won't have to give all or a portion of those monies back or provide for an offset for those funds to settle your case.

Once the divorce case is filed, the bank accounts in the name of either you or your spouse are essentially to be considered "frozen" with the exception of the payment of those costs and expenses that are typically paid from those funds on a regular basis.   A divorce attorney therefore may give you this advice not to give you a financial windfall but rather as a protective measure.  There are instances, however, when the money may normally be used without any adverse action by the family court.

You should always consult your divorce lawyer regarding what you can and cannot do with the monies you withdraw from any bank account even before the filing of divorce.  Though no orders truly control what you can and cannot do with monies you withdraw that you are lawfully entitled to, the opposing party can use your spending conduct against you with some judges and do some permanent damage to your case by tipping the judge in favor of your spouse.