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November 2013

Dedicated Rhode Island Divorce Attorneys don't practice in 5 areas of law!

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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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This article is more of a short opinion of mine than it is fact.  You can feel free to agree with me or disagree with me and I certainly will respect your opinion.  

From the very beginning of my practice attorneys have told me that I wouldn't be able to survive as a lawyer if I didn't practice in more than one area of law.  Quite a few attorneys told me that I needed to pick at least three (3) areas of law with more of a recommendation of five (5) areas.  It was explained me as diversification like one would do with a financial portfolio.

In short, I disagreed.  The more areas you practice in, the more law you have to keep up with, the more rules of court you have to keep up with, the more care you have to take in order to prevent yourself from a malpractice claim.

Attorneys tried to convince me that it wasn't that hard and you just keep up with the issues that relate to your cases as they arise.  I didn't agree.

In the end it came down to one thing.  I believed that by choosing more than one area of law I was trying to be a "jack of all trades and a master of none."  My opponents by comparison felt that it was enough to keep up with parts of the law that affected the specific cases that came to us and that was enough.  In the end the attorney who practiced in more areas of law was more diversified and would be able to get more clients and consequently make more money.

Ultimately, I came to the conclusion that dedicated and caring divorce attorneys would choose to practice in family law and perhaps one other area of law if they truly expected to keep up with the law and serve their client's properly.

Do I make the money these other lawyers make?  No, probably not.  In fact, it comes with its sacrifices including the income but they are worth it and necessary to practice in a way that I believe I should be practicing in both for myself and my clients.

When you interview your family law attorney, find out how diverse he or she is.  It will be worth it to know how many areas he or she practices in.  The more areas... the more clients the attorney is likely to have and the thinner the attorney is spread.

The call is yours and this is purely my unique view and opinion.  I share it because many people don't think of it this way.  The few numbers of practice areas, the more likely it is that the attorney's competency in the area(s) practiced in greater.  I practice divorce and specific areas of family law. It's not just part of what I do.... it's ALL I DO!  

I'm here for those who need a caring and affordable divorce and family law attorney.  Hidden away in a small office and rural area of Coventry, Rhode Island... I am the unsuspecting attorney most people are looking for.  My best to all who go before the Rhode Island Family Court.  I understand.... I've walked in your shoes!

RI Family Court Judges - Is Your Eye on the Ball in each Rhode Island Case?

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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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Within the past few months I've had several calls from people who had the same problem and I was able to identify it simply by asking a few questions.  Unfortunately it's something that I've seen happen dozens of times over the years.  Though I wouldn't call it an epidemic I would certainly say it's something our newer judges could do well to focus on.

So what is the problem?  In a nutshell it is the failure to keep their eye on the ball.  What does that really mean?  

Judges have a coinsiderable amount of latitute and discretion in the Rhode Island Family Court System.  They can continue motions over and over.  They can defer to family court investigators.  They can rely on a Guardian Ad Litem's recommendations without question.  They can shuffle a matter off to mediation even if it is a matter in which mediation makes no sense.  It's there.  Discretion is part of our family court system and we count upon our judiciary to use it wisely.

Yet ultimately, it isn't used all that wisely when a judge doesn't keep his or her eye on the ball.  For instance, I had one case where my client filed one motion.  Remember that number now.... just one motion!  The motion had such substantial merit that the opposing party and the party's attorney could do nothing other than to try to prevent it from being heard.  In the case, the judge was not "on the ball" as I call it.  Though I brought this to the court's attention at each and every hearing, it was ignored and the judge diverted on tangents as the opposing party filed countless and meritless motions that were titled as "Emergency Motions."  In the end, the judge fell for it every time.  At one point after 2 1/2 years of bogus motions from the opposing counsel I literally lost my temper and said to the Judge, "Judge, with all due respect you are doing my client and these children and injustice.  We have had one motion pending for  2 1/2 years while this court has allowed itself to be pulled off on tangents by the 118 motions filed by the opposing counsel in an attempt to bury the one meritorious motion we filed to start all of this."

The truth be told, my client and I had been patient over and over as bogus motions continued to fly in and cost my client money and time.  In the end I represented the client for the last 8 months for free because I was so disgusted at the way the matter was being handled by the court.  All that was needed was for the judge to take a clear look at the file and see what was going on.  It was as plain as the nose on your face that the opposing party was trying to bury his manipulation of the children and his failure to pay child support.  

No matter what motions are filed I have learned one thing from countless judge in family court in Rhode Island.  The judge's discretion controls everything!  If the judge sees that the underlying problem is that a child needs counseling then the judge will act and go right to the route of the problem.  When a judge does that, I applaud that judge.  He or she does not end up being controlled by motions which may or may not have validity or even valid foundation (though they are supposed to if counsel is involved).

I think the greatest thing I have learned is that a good RI Family Court judge will see the crux of the issue and then focus on the ball to resolve it.  Judge's who loose sight of the real issue usually do so because they listen to a lawyer who is spouting or whining or arguing about something to throw the judge off on a tangent so he or she will not see the REAL ISSUE and keep their eye on the ball.

A constant flurry of motions is not only a sign of a lawyer that may be trying to make more money but also a lawyer that may be trying to bury a key fact about his or her client  that he or she doesn't want the judge to see.  It is also a good way for some lawyers without scruples to abuse the system by requiring the opposing party's attorney to have to spend more time and money to respond so the responding party will be drained of resources as quickly as possible so he or she can't afford counsel to defend himself or herself.

These are all things that a judge can see from the file.  The motions tell the story.  The orders tell the story.  Sometimes a brief review of the file will help them keep their eye on the ball.

A good judge can keep his or her eye on the ball in most cases and keep the case on track.  No matter how many cases may be in the system, a case that is prolonged for no reason or is decided unfairly or inequitably because justice was not done because the judge was distracted from the main point (the ball) is merely a case that might be closed by frustration or one party becoming broke or defenseless

In the end, it is not justice!  Once a judge fails to keep track of the ball on a case.... justice falls between the cracks.  It is my sincere hope that our judges take a few minutes in each case to look, to listen, and to find the ball once again!

Why you Should Reconsider Delivery of Child Support through your Children!

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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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It continues to amaze me that after more than a dozen years practicing exclusively divorce and family law that there are parents who still pay their child support through their children.

Over the years I've come to understand that there are any number of reasons why this happens.  Just a few are listed here:

1.  Reliability - In some cases parents believe that it is more reliable to send it with the children when they are returned from their parenting time (formerly called "visitation").  The idea behind this is that the parent paying the child support has made sure the child made it home to the placement parent, therefore so has the payment and it has been paid timely. 

2.  Cost and/or Time Savings - In other instances, parents who pay the other parent directly simply may not want to purchase envelopes or stamps and don't want to take the time to write out the envelope information each time a payment is required.

3.  Demand by the Payee Parent - There are some payee parents who insist that the child support payment be dropped off in the children's things when the child(ren) is/are returned.

4.  Causing Intentional Hurt to the Payee Parent - The payor parent wants to emotionally or mentally hurt the payee parent by providing payment through the child.  This sometimes happens in any number of ways.  The payor parent might know that the payee parent is picky about the readability of the check so the payor might just scribble the check sloppily to annoy the parent receiving the check.  The payor parent might write the check so that it is a penny or two short so that the payee parent is once again annoyed or gets angry about having to fight for a few cents to force the other parent to pay the full amount.  The payor parent can simply leave the signature or the date off the check so that it appears to be an oversight when it could very well be intentional so that the payee parent can't get the money unless they fill in the date or forge the signature.  Either one of these is not lawful and forgery of a signature is a crime in Rhode Island.  Another way is for the payor parent to have a new girlfriend or boyfriend write out the check in their hand-writing so that the recipient of the check is taunted because this person should have nothing to do with the payment of the child support but is done simply to emotionally try to hurt the recipient parent.

5.  Avoidance of the Other Parent - The payor parent may use the child so that he or she can avoid contact or communication with the other parent.  Therefore, there is no personal delivery by him or her.  No wasting his or her time to give the payee parent any satisfaction that it is even worth the time filling out an envelope or paying the cost of a stamp.  So the child becomes the delivery person.

These are just a few of the ways that child support payments are transferred using a child which adds a very personal delivery aspect unfortunately the personal delivery comes from the child.  

A good, caring parent will ALWAYS arrange for another method of delivery for child support that does not involve any child or children in any way.   

If you are using a child to deliver a child support payment, there is a very important primary reason in reconsidering doing so.

When a child support payment is delivered by a child or through a child, the emotions and response of the parent receiving the child support cannot always be predicted and can vary.  However, in many cases the response is not usually a positive one.  Association with the Child - When a parent has a child deliver child support, the response of the parent receiving the child support is frequently a negative one.  Sometimes the response can be intense anger, vindictiveness or other emotions.  This may include many forms of venting such as yelling, screaming, grilling the child about the payment or other information, swearing, crying, throwing, slamming things or even destroying things.  Some parents resort to more extreme forms of violence either against themselves or against the child(ren).

Even if the upset parent doesn't intentionally direct their venting and/or violence against a child for the delivery of a child support payment the child(ren) often absorb the recipient parent's response to the delivery.  Depending upon how the child interprets or absorbs the information from either parent, it is almost always in a negative manner.

Some children blame themselves for their parent's feelings or reactions.  Other children feel rejected or become deeply depressed that even though they have done what they were asked they cannot seem to make one or both of their parent's happy.  Still other children become confused and feel as though their whole world is falling apart because they interpret that their parental support system has collapsed.  This often causes children to feel alone with nowhere and no one to turn to for help, support or someone they can trust to talk to.

In extreme cases, children can become extremely depressed and even suicidal if a proper support mechanism isn't realized in their lives so they know they are loved, feel that they have a personal sense of worth, and that they are appreciated by others, and are loved by others.

Our children are our future.  They do not have the defense mechanisms that we learn as we become adults.   If we damage them due to our own ignorance by using them as child support delivery tools then it is likely that we damage their children and their children's children.  Children are as delicate as they are resilient.  However, it is improper to justify yourself by blaming the other parent or simply expect the child(ren) to bounce back.  Resiliency only works when parents are there to support it.  If even one parent acts in a destructive nature, the likelihood is that you have damaged your child's psyche, self-worth, emotional stability and more.

Delivery of child support through a child is shirking your own responsibility onto the child.  Fill out the envelope, pay for the stamp, drop off the payment personally, arrange payment through direct deposit if your bank allows.... but leave your child out of it.  Be the adult you should be... don't risk a child bearing the angst directed at you as an adult.... no child deserves it.  If you love your child, you'll undertake your own responsibility and protect your child(ren) from collateral damage.

Are Extracurricular Expenses for your Child Covered by your Court Ordered RI Child Support?

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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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Often times payors of child support don't know what is covered and what is not covered by their child support payments.

The truth be told, there is no exact list as to what child support covers.  Yet there is one thing that seems clear.   Expenses for extracurricular activities that involve items that are separate and distinct from basic items that you would think would be covered by child support re not covered by child support payments.

The statute that creates theRI Family Court gives it among other things ... the power to handle issues relating to the support of minor children.  The statute does not explicitly say "child support" and because of this their are cases that have been brought before the Rhode Island Supreme Court such as Chiappone v. Chiappone, 984 A2d 32 (R.I. 2009) that mention orders of both child support and separate orders for extracurricular activities.  Even though the case was not before the Rhode Island Supreme Court on the challenge of an order of extracurricular activities, it is implicit that such orders are within the power of the court because one would expect someone on the Supreme Court panel to comment in the very least if it were outside the power of the family court to issue such orders.

Therefore, child support and extracurriculars are separate and distinct costs and expenses and that is precisely why most family law attorneys deal with each of these issues separately in Marital Settlement Agreements between parties.

However, an issue still remains.  What happens in the absence of lanugage about the extracurriculars?  Many child support recipient parents and guardians believe that it is the duty of the child support paying parent to pay all or at least 50% of these extracurricular expenses.

This is incorrect.  Extracurricular expenses are not an entitlement of any person or child.  A child may receive them if and only if the parties agree to these expenses in their marital or property settlement agreement, or if the court issues an order requiring a parent to pay a portion of those expenses, usually those expenses that are both reasonable and agreed upon by both parents in advance of incurring the extracurricular expense or signing the child up for the activity that involves the extracurricular expense.

A parent who makes payment of extracurricular expenses may do so because they love their child and they have the extra money to do so at the time.  However, no parent should take that as a commitment that they are required to continue to do so in the future absent a formal agreement or a court order as stated above.  Any parent receiving extracurricular expenses from a parent who has no formal agreement and no order from the court requiring that such payments be made should count himself or herself lucky that a parent cares enough for their child to do so.  

There is no "entitlement" to contribute to extracurricular expenses.  They are, as the word denotes "extra."  They are not essential or necessary and many children go without extracurricular expenses that cost a single dime.  Therefore, absent a formal agreement in a divorce or legal separation or a court order, the recipient parent most likely made the choice of enrolling the child in the extracurricular unilaterally.  Therefore It is only right that the enrolling parent should expect to pay for that extracurricular himself or herself without expecting contribution from the other parent.  

Any contribution by either parent that is without a formal written contractual agreement or a court order is merely gratuitous based upon the love of the child.

Neither parent can reasonably expect that upon demand of the other parent under these circumstances that the other parent contribute to the extracurricular activity of the child, especially if he or she does not have the opportunity to participate in or accompany the child in attending the extracurricular function.

Any parent who enrolls a child in an extracurricular activity without clearing both the extracurricular activitiy AND each expense to be incurred that they would ask the other parent to contribute to has unreasonable expectations and has failed to consider the finances and financial plans of the other parent.  

Ultimately any parent who plans in this way should expect that the court is likely to rule that the parent who made the extracurricular plans for the child and expended the funds on behalf of the the child should do so entirely at his or her expense. 

In a Complaint or Complaint or Counterclaim for Divorce in RI what do I ask for?

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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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So you are going to file a complaint or counterclaim for divorce in RI, what do you ask for, right?

If you look at the Rhode Island Family Court's standard Complaint for Divorce form there is a "WHEREFORE CLAUSE."  This is where it states that you are asking the court to grant you an absolute divorce and ...   Of course space is left after this clause to allow you to type in whatever it is that you are asking the court for.

The main question people have regarding this clause is "What do I ask for?"  Ultimately, you can ask for things specifically like this and list all the things that you want:

"and . . . the 1989 Chrysler Lebaron SE, half of our dvd video collection, half of all the furniture including the bedroom set, the bank account in my name, my 401k, my coin collection, etc..."

Or, you could ask for things generally in this manner:

"and . . . a fair distribution of the assets and debts from the marriage, appropriate orders regarding health insurance coverage and out-of-pocket expenses, denial of alimony to my spouse, and the resumption of my maiden or former name of "Smith" and whatever else the court finds is fair and just.

Now a few of the questions you might be asking yourself are:

1.  Should I ask for things the specific way or the general way?

2.  Is there any difference between asking the specific way or the general way?

3.  If there is a difference, what is the difference?

4.  If I do things the specific way, what happens if I forget something?

5.  Are there any benefits to doing it the general manner?

6.  Do these examples include everything I should ask for?

These are excellent questions to be sure and they aren't the only questions you would want to ask or have answered.

Since this is a general article and is not about any one couple or case, the answers will vary depending upon the couple.

Should you use the general or specific manner to ask the court for relief?  Well, it all depends upon the circumstances, your style and what you trying to accomplish.  Even divorce lawyers differ regarding the answer to this and several of the other questions.

Obviously there is a difference between using the specific and general manner of telling the court what you want.  One clearly tells the court and the opposing spouse what you want while the other one simply tells the court that you want to do it's job under the law and divide things "equitably" as it is required to by law when asked to.  

Good long-term lawyers who care about their divorce clients would most likely say that the more pertinent questions a person should ask are, "How many differences are there between the specific and general manner?  And what significance does each difference make?  These questions, however, depend substantially on the couple involved and the dynamic of their divorce, including how well they are getting along, whether they have children, how old the children are, and other significant factors that a good lawyer weighs carefully with each case.  Therefore, exact answers to these questions aren't really possible in this article.

Does it matter if you are using the specific manner and you miss something?  The answer is this "it might!"  Does it seem as though I am evading answering the question?  Though it might look that way, I'm not.  The fact is that answers to each question are case specific and depends upon the facts of the case, what it is that might have been missed, and even whether the judge assigned to the case believes in following the letter of the law or believes in following a path of using his or her discretion regarding such matters.

In conclusion, I can answer one question with certainty and clarity.  These examples do not even come close to including everything that might be included in a person's request for relief in a divorce.   In fact, several requests that are common and may be necessary have not been included.

Do you know what those things are?

If you don't, then I will have achieved the point of my article.

Let me explain.  Right now I guesstimate that about 75% of people are filing their own divorces in the RI Providence County Family Court alone.  Yet here we are asking about just one single paragraph on the standard court form for the Complaint for Divorce and/or the closely eqivalent request for relief in a Counterclaim for Divorce.

This ONE paragraph that makes a HUGE difference in your divorce whether you file the Complaint for Divorce or a Counterclaim for Divorce.  It has to do with what you want to ask the court to award in the divorce.

Now if 75% of people filing in Providence County's family court are doing this on their own and they don't know all the answers to the questions in this short article then I'd be willing to bet that unless they are lawyers that 74% of them are GETTING THIS IMPORTANT PART WRONG!

Why is this significant?  Here's the kicker!  If you go through your own divorce without the help and coaching of an attorney and you missed something in this crucial paragraph, then some people are going to make errors that are going to be permanent that even the best divorce attorney in Rhode Island is never going to be able to undo!

Whether you are in an uncontested or contested divorce, the risks are still there!  If you don't see the need for either a divorce lawyer or some divorce coaching from a Rhode Island lawyer by this short article, then my very best to you and good luck.  

There's a reason I only practice divorce and family law in our state. The complexities and significance of what needs to be done and considered in a divorce are enough to take up more than one lifetime.  I felt that was enough... and after more than a dozen years doing this.. I know I was right.