Rhode Island Divorce Tips

By:  Christopher A. Pearsall, RI Divorce and Family Law Attorney

Divorces come in all shapes and sizes.  Some spouses are still talking to each other while others are at each others throats.  In some marriage relationships one party made the money while the other party took care of the household and may have been the primary caretaker of the children.  Still others find both spouses working with one being a spender and another person being a saver.  The differences between marriage relationships are just as diverse as the divorces that arise out of those relationships.

Yet, even in divorce it is often important to be practical, realistic and optimistic.

For instance, in Rhode Island you need to understand that there are realistic standards that govern many divorce situations such as the division of assets.  Though Rhode Island is an equitable division state (not to be confused with an "equal" division state), the law is fairly practical when it comes to many situations. 

One such instance is when two people have separate bank accounts with their own separate funds in them.  Then, those two people get married.  Upon getting married, many spouses often put their monies into a joint account that has both of the parties' names on them.  Those funds then become "marital funds" in the event of a divorce and they are divisible by the court in their entirety regardless of the length of the marriage, unless the judge does not find the division after a trial to be equitable. 

For this example we will use funds in bank accounts.  Bill has $23,000 in his own account.  Tina has $5,000 in her own separate account as well.  They get married.  Bill puts Tina's name on his account.  Tina moves her $5,000 into what is now their joint account and she closes her separate account.  Unfortunately Bill and Tina may have jumped the gun and married too soon and they quickly find that they are incompatible and file for divorce within two (2) years.

Bill files for divorce.  The law is practical and realistic when it comes to the bank account which has $38,000 at the time of the filing.  It is in a joint account and therefore it is marital money to be divided between the parties. 

The law in Rhode Island provides that when you enter into a joint account with someone, unless it can be shown that the name of one of the spouses was placed on the account purely as a matter of convenience that in fact, by having a joint account each person is gifting half of the money they contributed to the account to the other spouse.  Thus, the entire account actually belongs to Bill AND it belongs to Tina.

In a divorce situation, if Bill and Tina are reasonable with one another and are still talking with one another then it would be an optimistic mindset and position to take that Bill should get back the $23,000 he had before this short marriage and Tina should get back her $5,000 and the parties should split the remainder equally.

However, if Bill and Tina are not getting along and either Tina or Bill intend to be vindictive that they are not bound by that optimistic perspective.  Either one of them can endeavor to enforce the practical laws of Rhode Island and demand that the entire account of marital monies be divided equitably.  Many times, equitably will turn out to be an equal division of monies absent some mitigating factor such as an infidelity that caused the breakdown of the marriage or dissipated the marital assets.

It is important, however, that even though it is good to be optimistic in a divorce situation, it is just as important to be realistic.  If you have placed monies in a joint account, then you have created marital funds and you have no right or entitlement to get the monies you had before you married your spouse back.  They are no longer premarital once they enter a joint account.  Acceptance of the fact that this may be a realistic decision that a judge might easily come to because of Rhode Island's laws regarding divorce, marital assets and joint bank accounts will help you prepare for an outcome you may not be happy with but which you may have no choice about.

In your divorce, be practical and realize that laws govern what you have done with your assets, by getting married, and during your marriage.  You need to be realistic and accept that laws will govern many situations in your divorce that you may not agree with and may be out of your control.  No doubt if you were Bill and you expected to get your $23,000 back, you might be extremely unhappy if the judge were unconcerned about the short length of the marriage and simply applied the principle of a joint bank account to your case giving Tina half of everything in the account. 

What may not seem fair to you in your divorce may be a situation that has often been spelled out by years of law not just regarding divorce but regarding banking or property law as well.  The judge is bound by the law to be applied and unfortunately what may seem an unfair result to you or I in any particular divorce case often has a broader rule of law behind it that is being applied.

Marriage is an important decision as are what we do with our assets and debts during the marriage.  It is a contract with repercussions that we often do not appreciate until we are in a divorce and it is too late.  If you are contemplating marriage, it is not a bad thing to be aware of what may happen in the event of a divorce and how the law may treat what you do.  

Be optimistic but practical and realistic!  In the end, for all of us ignorance of the law is never an excuse... even in a divorce.

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Image Copyright 2016 DCP Insurance

  By:  Christopher A. Pearsall, RI Divorce Lawyer*

David and Kathy entered into a Marital Settlement Agreement in their divorce after Kathy was caught with another man.  In the agreement David gained ownership and control of the life insurance policy covering his life, including the right to change his beneficiary.

David's policy was for $750,000 and Kathy was designated as the beneficiary on his life insurance policy.  For whatever reason, David focused on the big battle of getting through the divorce hearing itself and getting control of his life insurance policy because in the event of his death he did not want Kathy to receive the $750,000.  Instead he wanted the life insurance policy monies to go to his children in the event of this death.

But David didn't do anything but take a well deserved break from all the litigation for the divorce and unfortunately he never got around to changing his life insurance beneficiary. 

Seventeen days before the final judgment of divorce might have entered in his case, David had a heart attack on the golf course and died.  Even though David didn't want the insurance monies to go to Kathy, David never filed the Change of Beneficiary Form.  Therefore, since Kathy was the beneficiary listed on his life insurance policy at the time he died, she put in the claim and was paid $750,000. 

There was nothing David's family could do.  The life insurance was governed by the contract he had signed with the life insurance company.  All of David's efforts to get control of his policy and the right to change the beneficiary were wasted because David failed to immediately change the beneficiary to protect the life insurance proceeds and insure they where paid to the persons he wanted them to go to in the event of his death.

We never expect to die.  We never plan to die.  For some reason we always think we are going to live forever or that we can put off changing the beneficiary to another day because we've done enough work for today.  Yet life insurance plans for death. It is protection for that very thing and the replacement of your income in the event it happens. 

In a divorce, when you get control of your life insurance policy and the right to control your beneficiary, then make the change immediately.  It will take a few days to process as it is and even those few days are a risk.  If you have to pay a little extra to expedite the process or the mailing, then do so.  The alternative is far worse.

I'm sure that if David had realized that he was going to die, then he would have done these things and prevented the wife that cheated on him from receiving $750,000 when he died.  Act on it and plan on changing your beneficiary as if you ARE going to die.  It's that important.

It's worth several hundred and even several thousand dollars at times to get experienced legal help from a professional who knows the Rhode Island Family Court System. 

Yet would if you could get good solid legal advice on various issues for only $150 or even $300 to prevent a travesty like this that rewards your ex-wife and leaves your children with nothing from you.  It be worth such a small amount to get the help of an experienced professional, wouldn't it!

Don't leave your divorce, your life, and your legacy to chance.  Call Me and Set up Your Legal Advice Session!  (401) 632-6976

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A Divorce Tip for People with Bank Accounts when One Party is Set Up As a Matter of Convenience!

By:  Attorney Christopher A. Pearsall - Rhode Island Divorce & Family Lawyer

There are many people who set up bank accounts not simply with their spouses, but with grandparents, parents, siblings, children and friends.  Often times these bank accounts are set up as joint bank accounts as a matter of convenience.

For instance, a joint checking or savings account may be set up with another person in the event one or both of the people become incapacitated so that the other person on the account can continue to pay the bills for the incapacitated person.  In other cases a joint account may be set up in the event of a person's death so that the other person has immediate access to the funds in the account to pay for funeral expenses or even to simply have ownership of the funds without having to go to probate court or to fight with other family members. 

Another likely instance is that you open an account for your child but make sure your name is on the account so you can make sure you can oversee the account and make sure your child is making deposits to the account.

The point is, that in many instances, the secondary person on the account is not there because they are truly the owner of the funds (though the law often sees it that way) but rather, as a matter of legal convenience to assist the person who is the true owner of the account or protect against the inability to pay bills for the person I refer to as the "the true owner" of the funds in the account if something happens to them.

In possible divorce situations it is important to know several things about bank accounts where one party is put on the account as a matter of convenience and as a result these three tips may come in handy for these "Convenience Accounts."

Joint checking or savings accounts where one person is intended to be the actual owner of the funds and the other person is on the account as a "mere convenience" in the event where the owner of the funds should be set up carefully since under Rhode Island law at the time of this writing, any joint account that is not specifically set up carefully carries with it the rebuttable presumption that both parties own all of the monies in the account in their entirety and either person on the acccount may, in fact, withdraw the entirety of the monies without the permission of the other party (at least as far as the financial institution is concerned) at any time.

As you might imagine, in a divorce case where one party's name is on the bank account account it is all too easy for one of the spouses to "take the money and run" or to include the money of perhaps a grandparent who has a joint account with your spouse into the marital estate such that it could possibly be frozen by the family court as assets of your spouse because your spouse's name is on the account.  Then, it may be a matter of proving that the joint account was one set up as a matter of convenience for the true depositor and true owner of the funds in the account.

So how do you protect yourself regarding these accounts where a party is put on the account as a "matter of convenience" or "just in case something happens" type of scenario.  This, by the way is particularly helpful in possible divorce situations in the family.

Consider these three (3) when you set up these accounts or even after you set up these accounts to protect your funds.

1.  When you set up any joint account with someone else on the account not because they truly are intended to own the monies but "as a matter of convenience", in the very least you should have the financial institution make formal notations in their computer file at the time you open the account that YOU as the owner of the funds are the primary account holder have set up this account as a matter of convenience so that that your mother, brother, sister, friend or whoever you choose is on the account purely as a matter of convenience.  The more you can spell out about what that convenience is for, the better it is for you.  You can specify physical incapacity, medically declared incapacity by a physician or in the event of death that the funds shall revert to the person on the account (or that the funds shall be subject to your Last Will and Testament).  Keep in mind that your financial institution may or may not follow these directives to the letter since they may not check notes on your file on the computer or in a paper file each and every time a transaction is made.  However, making these notes at the time you set up your account may be a great protection to you if a divorce occurs with you or one the person(s) noted on your account "as a matter of convenience.  Using these words when you set up the account establishes from the outset what your intention is.

2.  If you didn't establish your joint account as a matter of convenience as I outlined in paragraph 1 above, then you can always do it later on if you realize there may be an issue or perhaps even at the time you read this article as a "just in case" measure.  It is better to do it than not do to it.  Just as the old saying goes, it is better late than never.  I highly recommend providing to your bank a notarized letter signed by you under oath that outlines that the person on the account is to be considered secondary and is on the account as a matter of convenience.  You may even want to spell out what those instances of convenience are.  Make sure your financial institution places this letter in your file and notes it on your account.  It goes without saying that you should keep a copy of this letter. 

However, it may do little or no good at all if you do all of this after something devastating has occurred such as the filing of a divorce with a person who is on your account as a matter of convenience.

3.  On an account that is set up as a matter of convenience and the funds are actually yours, do not let the person who is on the account as a matter of convenience deposit money into the account, or let them withdraw money from the account and especially do not let the person write checks from the account, unless those are some of the things that are part of the "convenience" you spell out expressly to your bank on your account.  Allowing these things to happen shows equal access to the funds and may signify that they were not intended to be on the accounts as a matter of convenience, but rather that the funds are truly equally theirs as the law presumes.  If you let the person do this, when you are capable of doing it yourself without difficulty, then you may not be able to support your contention that the monies in the account are truly yours and the court may not believe that you are on the account as a matter of convenience.  In which case, if you are the owner/depositor of those funds, you may risk losing them.

Equitable distribution of assets is one of the primary things that the RI Family Court divides and when emotions often run high in divorces it is best that you anticipate what could happen with people you put on your bank account, regardless of what they may say or do.  Remember, it is not a lack of trust on your part to protect your funds.  One study mentioned that now 6 out of every 10 couples end up in divorce.  Therefore the odds are in favor of a divorce happening to a person who you may consider putting on your bank account as a matter of convenience.

Taking these actions by putting in writing your express wishes and intentions with your bank, credit union or other financial institution where you have an account that you have another person on as a matter of convenience may be the best and other evidence you have to rebut the presumption that you intended by opening the account that the monies in your account were entirely for both you and the person you have on the account with you.

Protective actions may protect you against the person on your account, the spouse of the person on your account or perhaps just the court itself.  These days it is not a matter of trust to legally protect your financial future, rather it is an imperative to insure that you retain what is yours.

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By:  Christopher A. Pearsall, RI Divorce Lawyer

Important Note: As a Rhode Island lawyer I am limited to answering your question only as it relates to Rhode Island Divorce and family law situations. Other jurisdictions may vary slightly or greatly from this standard.

Rhode Island and Guardian Ad Litems

When a Guardian Ad Litem is appointed in a case, typically they are appointed to protect the best interests of a minor child (or children), although in rare cases a Guardian Ad Litem may be appointed to represent the interests of an a party in a proceeding who has demonstrated a decreased capacity to understand or appreciate the nature of the proceedings and the ramifications that might occur.

For instance, I am aware of one case many years ago where a Guardian Ad Litem was appointed by a family court judge in a divorce proceeding in which one of the parties could not quite comprehend how the divorce worked and the repercussions of certain decisions that had to be made because the party was not in touch with reality and frequently took advice from a little man that sat (invisibly I might add) on the party’s right shoulder. The party would routinely consult the little man in the middle of court proceedings causing great confusion and frustration for both the lawyers and the court. In that case the court had to consider appointing a Guardian Ad Litem for the adult rather than a child, to make sure that the interests of the adult were reasonably protected in the adult’s best interests. This became the role of the Guardian Ad Litem. The recommendations were to evaluate settlement offers and determine whether they should be accepted or rejected and what needed to be produced in the way of documentation and/or answers to questions as the divorce litigation proceeded and whether the adult understood the nature and consequences of the proceedings.

The recommendations could relate to any number of things based upon what the court’s directives are to the Guardian Ad Litem.

When it is a minor child or children involved the recommendations are typically regarding which parent may be the most important parent to have physical placement of a child (in the child’s best interests) based on the legal requirements the Court itself would often consider under the prevailing law in the state. For instance, in Rhode Island the seminal case is Petinnato v. Petinnato, 582 A2d 909 (RI 1990) which originally set forth eight (8) factors the Rhode Island family court judge presiding over the case (and consequently a Guardian Ad Litem) must consider regarding the best interests of a minor child.

Typically, the recommendations of the Guardian Ad Litem may relate to who the parent who should have primary placement of a minor child or children should be, whether there should be joint physical placement where each parent spends equal time with both parents, what parenting time a non-placement parent should receive and under what conditions, whether counseling is recommended for the minor child or children or one or both parents.

What is important to know is that recommendations of the Guardian Ad Litem are just that … recommendations. The judge may certainly taken them into consideration but the judge is not required to abide by those recommendations nor is the judge required to accept any factual findings the Guardian Ad Litem may make as a result of his or her investigation to arrive at his or her recommendations.

In other words, the recommendations of the Guardian Ad Litem do not bind the judge. They are merely to help the court and they are for the judge’s consideration only. However, it is worth mentioning that if the Guardian Ad Litem is well-known and trusted by the judge because he or she is thorough, is well-known to the court as doing a good job evaluating prior cases that may have been assigned to the Guardian Ad Litem, then the court is likely to give great weight to the Guardian’s recommendations. An opposing party has the right to challenge the Guardian’s findings and recommendations in court. However, if this is a long standing Guardian used by the court and in which the court has confidence, this may be an uphill battle for any person attempting to challenge the Guardian Ad Litem’s recommendations.  However, if the Guardian's recommendations are contrary to your legal rights as a parent or deprive you of fundamental time in your wife and your child's life then you may want to challenge them.

What is most important to remember is that the Guardian Ad Litems’ recommendations do not bind the judge at all and the judge may reject them in whole or in part if the court disagrees with the findings or finds the investigation to be less than thorough.

By:  Christopher A. Pearsall, Rhode Island Divorce Lawyer

When you file for divorce in Rhode Island, the Notice of Automatic Orders becomes effective the moment the plaintiff (i.e. the filing party) signs the complaint for divorce.  In most circumstances, this Order's provisions becomes effective for the defendant (i.e. the party being served with divorce papers) once he or she is served with the divorce documents.

So what is the Notice of Automatic Orders?  It is a document printed signed by the Chief Judge of the family court that is included in your Rhode Island divorce documents. More significantly, it is a Rhode Island law.

If you would like to see what it looks like as of the writing of this article you can download it here -> RI_Notice_of_Automatic_Orders

As of the writing of this posting, it is Rhode Island General Laws §15-5-14.1.   The plaintiff is must be aware of and abide by the provisions of the Notice of Automatic Orders at the time he or she signs the Complaint for Divorce.  The defendant is expected to be aware of (and must abide by) the provisions of the Notice of Automatic Orders at the time he or she is served with the document along with the complaint for divorce and the other service documents.

It is extremely important to note that this Notice of Automatic Orders used to be a document that was prepared and included in the filing party's divorce packet.  When it was done in this way it was easy for a plaintiff to be aware of the document.  The plaintiff either had to put it in the packet himself or herself or if the plaintiff hired a lawyer then the lawyer would go over the document with the person at the time the divorce complaint was signed. 

Today documents are e-filed by lawyers and the court creates both the Summons and Notice of Automatic Orders.  If you or your lawyer don't keep this in mind, this new timing issue could cause a problem.

An example illustrates this best.

Daniel is representing himself (i.e. "PRO SE") in his own divorce.  He prepares all of the documents himself including the Complaint for Divorce which he signs before a notary public at a local bank.  He files his divorce complaint and the other supporting documents that constitute his divorce packet with the court.  Two days later Daniel goes to the bank and empties out his joint bank account that he holds with his spouse.  At this point Daniel doesn't have the service packet documents which include the Notice of Automatic Orders that the court now prepares for you.

Daniel calls the court a day later and finds that the service packet of documents to be served on his spouse is ready. Daniel picks it up and has it served on his spouse by a local constable.

Daniel's spouse hires a lawyer and immediately re receives a Motion to Adjudge him in Willful Contempt of the Notice of Automatic Orders because Daniel violated the very first provision which prohibits moving or removing assets and went into effect the moment he signed his divorce complaint before a notary.

Daniel thinks it's easy.  He goes to court and tells the judge that he didn't know about the provision in the Notice of Automatic Orders so how could he abide by them.  He argues that they weren't even prepared by the court until after he had already removed the monies.

The judge is not impressed.  The judge orders Daniel to give his spouse 60% of the money he took out and to pay his spouse's lawyer fees and costs of $750 for having to file the motion and appear at court to argue it and pay his spouse for whatever time may have been lost from work.

Daniel is furious.  He continues to argue that he doesn't think it's fair that he is held to the requirements of a document that he couldn't have known about because it wasn't created yet by the court at the time when he acted.

The judge's response was simple,

"Perhaps you should have hired a lawyer who knows our divorce laws.  The Rhode Island Automatic Orders are in our state's domestic relations laws, our RI Rules of Domestic Relations Procedure, our E-filing Guidelines and the Family Court's Administrative Orders.  Ignorance of our laws is never a defense nor an excuse.  So do not blame the court.  If you are looking for someone to blame here sir, then I suggest you look in a mirror."

Being a good divorce and family law in lawyer in Rhode Island has become more challenging in today's age of technology and everchanging rules.  The RI Rules of Domestic Relations Procedure have been rewritten and revised several times over.  Formal procedures sometimes differ from what the rules indicate and even as an experienced Rhode Island family lawyer it often becomes a challenge.

When you hire a lawyer, make sure that you are shown the Notice of Automatic Orders and that you read them thoroughly before you sign your complaint for divorce under oath.  Don't let any lawyer let you skip it.  A good lawyer will take the time to go over the law that you are held to.  If a lawyer wants you to skip the Notice of Automatic Orders or just tells you to trust him or her and sign on the dotted line, rethink the lawyer you chose. Every good lawyer should take the time to keep you informed for your protection as a client.