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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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, 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.

Atty Chris Pearsall

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

 Pearsall Google Author Profile

Publisher on Google+ - The Rhode Island Divorce Coach℠ 

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.