Rhode Island Divorce Tips

Atty Chris Pearsall

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

Google+ Author Profile

Publisher on Google+

Fathers, this is going to be a quick yet heartfelt article both from personal experience as a father as well as a lawyer who has dedicated his practice exclusively to family law in Rhode Island for the past sixteen (16) years.

In many divorce cases there are lawyers, mediators, and even fathers have been making a huge mistake when it comes to placement and parenting time with the minor children. They have been assuming that the mother always gets placement or that the father cannot get parenting time of 50% with the children.  I've heard lawyers say it.  Hell, I will sadly admit that I've said it because that's what I've seen over the years and that's what I was told in my own divorce before I became a lawyer. 

I've been in court ordered mediations and I've heard mediators say it to my clients and to other lawyers clients.  In quite a few cases over the years I've had fathers walk through my door and say that they are realistic and they "know the mother gets the kids and dad only gets every other weekend to see them."  Most of the fathers haven't said that happily either, they've said it sadly and in quite a few cases they had tears in their eyes or were crying. 

Frankly, I'm ashamed of myself for EVER saying it.  As a father myself I had been told the same thing by several lawyers and so I accepted the "company line" so to speak that fathers get "at most" every other weekend and one evening during the week.

Now, I wasn't a stay at home father.  I worked full-time, had two children that I loved dearly and went to law school at night to try to make a better life for all of us.  Today, well let's just say it didn't end out the way I planned or even hoped.  Rather it turned out to be the biggest nightmare of my life and I've used my mistakes to help dozens of fathers over the years.

Yet that isn't the point of this article.  The point of this article is simply this.  We as men are fathers.  Many of us love our kids and we would gladly die for them.  Some fathers have thought of, attempted or succeeded at committing suicide.  Why?  Because we were full fledged fathers before we went into the family court system and we came out as glorified babysitters.  We may have spent half of our time before a divorce with our children or doing things for the benefit of our children, but we came out only part-time parents with limited rights.  Can it happen to mothers?  Yes, but in 16 years I've rarely seen it happen.

So what is the reasoning behind being demoted because we divorced our spouse?  There are numerous reasons that are given, but none are justified by any reputable legal approach, psychological approach that has been substantiated or even a logical approach that doesn't deny our children or ourselves as fathers our rights.

Children need their fathers.  It is separate and distinct entirely from the relationship with the spouse we are divorcing.  We are not divorcing our children.  So why do the family courts treat men as if they are?  Well, for some of us it is our own fault... we accept the company line from the lawyers or mediators and yes in the rare occasion a judge and we settle .... yes, SETTLE for having our children every other weekend and perhaps one night a week if we get it.  If we do that, then we get what we chose.  However, you don't have to choose that.

You are no less a dad simply because you are divorcing your spouse.  When you have less time with your children as if somehow you are not as much their dad any more then can you imagine how much that traumatizes them.  Even if you have a long day of work and/or school and you come home and they delight in your bedtime stories each night before you tuck them neatly in and give them a kiss goodnight and let them know they are loved.  How might your children feel when they don't get those stories, or that tuck in, or that reassurance that their father loves them?  This emotionally scars many children.  So I urge you not to settle for less than half the time with your children.  I don't care if you have to represent yourself in court and spend all your time after work studying law and procedure and going to court over and over again so that in the very least you can show the judge you care, and be able to say you did everything within your power to be with your children the way you were meant to be.

Eighteen years ago, I accepted the "company line" both as a father and later as a lawyer.  These were two of the worst things I could have done.  Nothing will ever make up for well over a decade without seeing my children. 

Don't accept being a part-time dad!  Don't accept having your child's right to have a father ripped away from him, her or them so that they are traumatized.  Fight with all you are worth. Fight through embarrassment.  Fight through tears, slander, the legal system, angry and vindictive spouses, despair, depression and everything that can pull you close to hell itself.  I say this because a good father is irreplaceable for a child just as your children are irreplaceable to you as a father if you truly love them. 

Isn't your child worth fighting for to you?

Atty Chris Pearsall

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

Google+ Author Profile

Publisher on Google+

Every Rhode Island divorce is based upon the facts of each particular case.  Your case will always be somewhat different from some other person’s case. One of the challenges of being a good attorney is often explaining to clients that relying upon what their friends or family have experienced in their divorces may not be the way it will work in your case or the way the law may or may not work in your case.

Let me give you an example.  

THE CASE OF THE DISNEY COLLECTIBLES

Pamela went to Attorney Kimball for simple divorce from her husband, Raymond.  It quickly became hostile when Raymond discovered that Pamela was dating before she even filed for divorce.  Raymond was a good man but he became angry and wanted whatever the law would allow him from the marital estate.

Pamela and Raymond didn’t have any real estate, children, retirement plans, and little if anything in their bank account. However, Pamela had owned a set of Disney Collectible Glass figurines prior to the day she married Raymond.

ATTORNEY KIMBALL FOR PAMELA'S POSITION

Attorney Kimball argued on Pamela's behalf that the substance of the Disney Collectible figurines were bought before the parties married and that she owned those outright and had the purchase receipts.  Attorney Kimball also argued that Raymond was not entitled to any of the figurines or any appreciation in their value because the collection was owned prior to their marriage and Raymond had gifted her most of the figurines that were added to their collection after they were married were gifts from Raymond to her.  Pamela’s lawyer claimed that this was a simply premarital collection and should be over and done with as "premarital" and Pamela's sole property outside of the power of the family court to distribute.  The argument was direct and commonsensical.

ATTORNEY PEARSE for RAYMOND'S POSITION

Raymond hired Attorney Pearse to get his fair share of the marital assets, in particular the Disney Collectibles collection.  His client wanted his fair share of the collection so Attorney Pearse spoke to Raymond and got more details.  Attorney Pearse claimed that Raymond was entitled to at least ½ of the collection. 

Pamela was livid.  How in the world could Raymond claim that he was entitled to at least half of the collection when the general rule is that items owned prior to the marriage belong solely to the person who owned it before the marriage. 

Here is where the different facts of each person’s case come into play.  Sometimes it only takes one fact to make a difference.

During a hearing specifically about "The Disney Collection," Attorney Pearse argued that shortly after they were married, Raymond became interested in collecting Disney Glass Collectibles not simply as a hobby but as an investment.  Attorney Pearse brought to the court's attention that Raymond and Pamela pooled their monies during their first Christmas and bought a rather large and expensive circular display case to hold and protect the collectible figurines.  This case became the centerpiece of their entire apartment.

Attorney Pearse also brought to the court's attention that the couple physically arranged all of the collectibles in the case together. 

TESTIMONY - THE DEVIL IS IN THE DETAILS

During the hearing various things were testified to about "their collection" as follows:

1)  Pamela and Raymond were concerned about the collectibles being stolen so Raymond took out a renter’s insurance policy to protect all of the collectibles. 

2)  Pamela had an alarm system installed for extra safety. 

3)  Every year Raymond and Pamela each bought more collectibles for what they each testified to was "our collection."

4)  They both picked out the disney collectible figurines together, purchased them together and paid for them together. 

5)  They also gave each other disney collectible figurines as gifts for birthdays, Christmases and their anniversary. It was agreed that they both added these gifts to their collection.

DISAGREEMENT OF THE PARTIES

Attorney Kimball argued for Pamela that those facts were irrelevant to "her collection" that Pamela had accumulated before they were married. 

Attorney Pearse argued to the contrary, they were crucial to the question as to whether the court should consider them premarital or not.

THE COURTS FINDINGS

The family court judge found that while the original collectibles Pamela purchased might well have been premarital at one time, they changed their character from premarital to marital by the way they were treated by the couple, particularly Pamela. Specifically the court found various findings from the testimony and arguments of counsel as follows:

1)  Both parties referred to the Disney collectibles as “Our Collection” and not as their own separate collections or collectibles. 

2)  Both parties bought the extravagant furnishing they used to hold the collection.

3)  Both parties protected the entire collection with renter's insurance and a security system that were both paid for with marital monies earned by the parties. 

4)  Together the parties added to their collection using marital monies. 

5)  The collection was, by agreement, the centerpiece of their apartment and it was an integral part of their married life and something they did together as an enjoyment, hobby and investment.

ATTORNEY KIMBALL MAKES AN ALTERNATE ARGUMENT FOR PAMELA

Attorney Kimball argued that in the very least Pamela’s original collectibles should be considered premarital and not subject to any division by the Rhode Island Family court in the divorce proceeding because they were purchased prior to the marriage and can be proved by receipts.  The judge disagreed, stating that simply making a purchase prior to the marriage is not a single determinative factor.

ATTORNEY PEARSE SUPPORTS THE COURT'S DETERMINATION FOR RAYMOND

Attorney Kimball agreed with the court and reminded the court how both parties (and even legal counsel) referred to it as either "their collection" or "our collection" and treated it not as individual units or sections but as a single unified "collection"  belonging to both of them.  

Attorney Kimball reminded the court that Pamela could have done something to segregate or protect the figurines purchased before the parties' marriage but she did nothing whatsoever to protect them.  Atorney Kimball argued that by the very way that Pamela allowed the collection to grow, treated it as a central focus of their life, agreed with Raymond that they should protect the entire collection with renter’s insurance as if the collection were an investment, and treated the collection as a single unit thereby demonstrated that it was something that in the event the collection were stolen or lost somehow that they would both benefit equally from the insurance, thereby treating it as an joint investment as if it were a joint bank account that had been commingled and belonged to each of them equally.

THE COURT'S DECISION

The judge concluded that when Pamela allowed the originally owned figurines to be so intimately commingled with their marital life that Pamela had allowed the original figurines to meld into their whole “Collection” and thus the original figurines lost their character as her individual premarital property and changed character such that they were marital property and the entire collection was divisible by the family court as a single unit and not as individual purchases made at different times.

This result may seem unfair to you and yet fair to others.  It is an argument resulting from a combination of both facts of the case and the relationship and the law. 

Not every case may end up this way, yet when spouses are at odds with each other it comes down to how things are presented to the court both legally and factually in an effort to achieve your desired result.

Ultimately Pamela expected to get the entire collection and Raymond never expected to get even 1/2 of it. 

Do you have something of value to you in a divorce?  Would you have thought of these arguments?  Do you see the four (4) other arguments that might have been used in this case to change the result for Pamela?  If you don't, that's the reason why we as lawyers exist. Creative and experienced lawyering has it's place in Rhode Island Divorces when called for.

All in all, it would best if we could keep all parties amicable and resolve them, but despite our best efforts it doesn't happen.  When you are not law trained, why take the risk.  Don't victimize yourself but representing yourself without some good coaching and advice!  Not interested in coaching or legal advice from an experienced lawyer, opt for representation with a reasonable but experienced RI Family Law Lawyer.

My Best to Everyone Going through the RI Family Court System,

Chris

Related articles

Terry Gaspard, MSW, LICSW | Moving Past Divorce | Counseling, Consulting & Seminars (RI & MA)

Enough of the Bias Already! When Family Court Judges Cross the Line!

RI General Laws § 15-5-12 Domicile and Residence Requirements

FAQ: Why Can't the Rhode Island Family Court Clerk's help me fill out forms?

Premarital Items may not be as simple as you think in your RI Divorce?