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February 2014

Do I file for adultery as fault grounds to get more of the assets in a RI Divorce?

Infidelity-300x236Authored By:  Christopher A. Pearsall, RI Divorce Lawyer
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Suddenly you find yourself where you hoped you'd never be .... thinking about divorce.  Karen was in just such a position.  Her husband Terrance had been distant from her for nearly a year.  No physical contact.  No words of endearment. More late nights at the office and frequent business trips that were never mentioned by Terrance.

Finally Terrance divulged that there was "another woman" and he was moving out.  Karen's heart was broken.  Soon that pain turned to anger as she entered the attorney's office searching for her divorce rights and options.

Karen had her husband's admission that there was "another woman" and nothing more, though she suspected it most likely included intercourse.

So the Rhode Island attorney explained that Rhode Island has both fault and no-fault grounds for divorce.  Karen's first response was to file the divorce immediately on the grounds of adultery.  Karen wanted Terrance to be "found out", "blamed" and penalized in open-court for his wrongful conduct toward her.

The Rhode island Attorney asked her if she knew the difference between filing for divorce based upon "irreconcilable differences" and "adultery."  This important discussion took place:

KAREN:  When it's "irreconcilable differences" I don't get to tell my story of what happened and nobody is at fault so I suspect the court splits everything 50/50."   When its "adultery" then the court and the people get to find out that he's a cheating rat and how he did this right under my nose and ruined our marriage so because of that he gets punished for what he did and I am going to get awarded more than 1/2 of what we own.

LAWYER:  That's interesting Karen.  Many people think that way but I need to clar you up on a few things.  Your idea of "irreconcilable differences" is close but it doesn't mean that you don't get to tell you story.  If you decide to go to court you can still tell you story and the judge can consider what happened in dividing the assets.  However, if it's "irreconcilable differences" then all you have to do is prove one difference with your husband that you can't reconcile and it has caused the breakdown of your marriage.  That is really easy to prove.

Now, if you use "adultery" as your grounds for divorce you must prove (not just suspect) that your husband had intercourse with a woman and you must be able to prove who the woman is, when and where it took place, and most important, that it was THAT ADULTERY that caused your marriage to break down and not something else.

KAREN:  Well I don't know all that!  Why do I have to prove all that?

LAWYER:  Well, you're claiming you should get a divorce based upon "adultery" so that is what you have to prove for "adultery" just to be granted your divorce!

KAREN:  Well I want to be able to tell my story and I want more than 1/2 of the assets.  That's the only way I can get it, right?

LAWYER:  No.  You can file based upon irreconcilable differences and you still get to tell your story at trial and the judge can take into account your husband's conduct in dividing up the assets and debts.

KAREN:  And that makes it easier for me?

LAWYER: Yes, it does.  It makes it easier for you to get your divorce and you still get to tell your story to the judge.

KAREN:  But I want "adultery" because I want him punished so I get more than 1/2 of our assets.  I want to make sure he doesn't do this to any other woman again and I don't want him to forget it.

LAWYER:  Karen, "adultery" is just a grounds you have to prove to "get" your divorce.  It is not meant to punish either party... even the one who committed adultery.

KAREN:  That doesn't make any sense. Isn't there any justice!  He did something wrong so he should be punished.  Why else would they have that in the law?

LAWYER:  Confusing, isn't it Karen?  But I can explain that to you.  You see if he slept with another woman then yes, in our eyes maybe he did something morally wrong!  However, the law doesn't always address what is morally wrong, that's why people go to confession at church.  But that doesn't mean that the judge doesn't consider anything at all!  Now, if Terrance has been sleeping around on you for 5 years and paying his girlfriend's rent, then he's been spending family money on someone who is not part of the family... and some of that money is yours!  So if he does that, the judge is most likely going to expect that he pay you back... perhaps by getting more of the assets.  If Terrance bought this woman a set of diamond earrings for $10,000, then technically he spent $5,000 of your money on another woman so he may be held by the responsible by the court for returning those monies to you because he damaged the "marital estate."  So he may get punished for not necessarily for his adultery but for wasting or taking money that belonged to you both and using it on this woman.  So he took away monies meant for you and the judge may require him to give them back by giving you more of the remaining assets.

Here's the catch.  You don't have to use the grounds of "adultery" for those things to happen.  The judge can consider the conduct of the parties during the marriage, including what they spent and what they did, in a case of a divorce brought based on irreconcilable differences.

So here's my question, Karen.  If irreconciable differences allows you to get your divorce more easily,to tell your story, and to prove anymonies he wasted on this woman so you get more of the assets, but adultery makes it harder to get your divorce, and it won't punish Terrance or automatically give you more of the assets, then wouldn't you want to file based upon "irreconcilable differences" to make it easier on yourself?

KAREN:  Now that I know that's how it works, then absolutely!

LAWYER:  Okay, so we've handled the infidelity as the grounds for the divorce.  Let's move on to the other important aspects of your divorce to help you understand them.

(Note:  This is not any particular discussion with any particular client but resembles countless discussions I have had with numerous male and female clients and is based upon Rhode Island law and practice.)

This discussion outlines the current state of Rhode Island law from an experienced divorce lawyer's perspective regarding the grounds for filing using "irreconcilable differences" (i.e. no-fault grounds) versus filing under "adultery" due to a spouse's supposed infidelity which has it's drawbacks and is usually a more emotional decision rather than a practical legal one.  An experienced Rhode Island divorce lawyer can explain this in more detail and put it in context based upon the factual circumstances of your own case.





Under RI law, who is a "de facto" parent and do you qualify as one?

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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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Question:   In the state of rhode island what is a de facto parent and what are their rights?

Answer:  This is a factually driven question in each case and results from a determination of the Rhode Island Family Court judge.

In essence a "de factor parent" is a person who stands in the position of a parent based upon an interested person's interaction and relationship with the child.  For instance, due to the relationship and interactions between an adult and a child the court may determine that a person is a "de facto parent" be he or she a mother or a father.

In Rhode Island the right of an interested person to make such a claim is basically set forth in R.I. Gen. Laws §15-8-26 which states,

"Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. The provisions of this chapter applicable to the father and child relationship shall apply as far as practicable." (Current through Public Law 534 of the 2013 Legislative Session)

Typically that interaction must be long term and the interested person must have acted in the same or a substantially similar role as a parent would to the child on a regular and consistent basis. Yet this is merely a guideline. Each set of circumstances is based upon the specific facts of each case. While you might like a "list" of rights if a "de facto" parent relationship is determined, there is no such list.

To give you a better idea of how factually driven cases are, I recommend that you read the case of Rubano v. DiCenzo found at in order to understand the complex interrelationship between facts, law, and court decisions.

Many people would like cut and dry answers with respect to their questions, yet there often isn't one that can be universally applied because the law in many cases cannot anticipate all the different factors and situations that can occur in life.  Facts always have a role to play in each case and when those facts are extracted, general answers don't usually exist.  Depending upon the facts of the relationship, the nature of the parties, the mental state of the child, and many other factors, there is nothing to prevent the court from expanding or limiting the role and/or consequently the rights of a de facto parent in each case. 

In some cases a person might think they are a "de facto parent" but the family court justice might disagree.  I recommend reading Rubano v. Dicenzo the case cited and you will understand much better what I mean. In the meantime, depending upon your situation, you might want to take the time to present that facts to an experienced family lawyer to get a better bead on the actual facts in your case and how they might be applied by a judge as well as what you are expecting or hoping for.