Rhode Island Divorce Tips

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

You believe your family court proceeding divorcing you from your spouse is straightforward.  You've talked to your spouse and think you have worked out all the major issues.  However, you are a bit apprehensive since you don't know the legal process, so you look into hiring a lawyer.  You meet with a few lawyers and the cheapest one you can find will charge you $2,000 for an uncontested proceeding.

You don't believe it should cost that much money "just to fill out paperwork" when you and your wife are amicable.  So you decide you are going to do it yourself and save the money.  You go to the closest family court in Rhode Island and an assistant court clerk hands you a packet of divorce/separation documents and informs you that you need to return with them completely filled out along with payment of the filing fee.

You get home and look over the documents. You look at the Complaint form.  It provides has a box to check off for the type of proceeding and you must check one.  It gives you two options.

[] - Complaint for Divorce  [] - Complaint for Divorce from Bed and Board

Do you know what the difference is?  Does checking off one box give you different rights than checking off the other box?  Is the result in the legal proceeding different if you check off one box compared to the other box?  If you check the wrong box when you file this document, are you allowed to change to the other legal proceeding if you make a mistake, or do you have to start over and refile all the papers and pay a new filing fee, etc.?

This is one small example why the paperwork is not "just filling out forms."  Ultimately, if it is just a matter of filling out forms then anyone could do it.  You wouldn't need to be a lawyer.  You wouldn't need a law degree.  You wouldn't need to know the law. It would simply be common sense or you would simply know the answer or the answer wouldn't have any detrimental consequences to you.

Looking further just at the Complaint for you see two boxes one labeled "Plaintiff" and the other "Defendant."  You know that the Plaintiff is the party who files the documents and that you will be doing the filing so you know that your name should be placed in the Plaintiff box and your spouse's name will be placed in the Defendant's box.   Then you question yourself.  Does it make a difference who is the Plaintiff in the case?  Does it make the case harder or easier if one spouse files as opposed to another?  You don't know so you continue with the documents.

It asks you to check a box for the proper county family court that the divorce matter is to be heard in.  You live in Kent County and your spouse lives in Providence County.  Which family court do you file in?  Kent County Family Court or Providence/Bristol County Family Court?  Must you file in one Kent County or Providence/Bristol County?  Can you file in either county? Does it make a difference where you file?  If you file in the wrong county do you have to restart the process and re-file the proceeding in the correct family court and pay a new filing fee?  You select your county and move to the first numbered paragraph in the complaint.

In Paragraph Number 1 of the Complaint it states,

"1.  The Plaintiff, _______________________________, of __________________________ (city or town), in the County of __________________________, states that the Plaintiff has been a domiciled inhabitant of Rhode Island and has resided therein for more than one (1) year next before filing this Complaint and is now a domiciled inhabitant of Rhode Island."

It seems fairly straight-forward to put in your name as the Plaintiff and then the name of the city and then the county you live in. However, what if you haven't been a continuous resident in the State of Rhode Island for at least 1 year before filing of this complaint?  Can you still file for divorce?  What if you haven't been a resident in your current county within the state?  Can you still file for divorce in that county?

In Paragraph Number 2 of the Complaint it states,

"2. Upon information and belief, the Defendant resides in the city or town of __________________________ in the State of __________________________ and has resided in that state for _____ years next before filing this Complaint."

Once again it seems straight-forward enough.  You fill in the town and state where your spouse lives and state how many years your spouse has lived in that state before filing this complaint.  Does it matter how long your wife lived in Rhode Island before you filed the complaint?  

Let's assume that you know that because things are amicable between you and your spouse that the grounds for the proceeding are irreconcilable differences that have caused the irremediable breakdown of the marriage.  Let's also assume that you get to the end of the Complaint document and it says that you are asking for a judgment of divorce AND ....

What do you ask for?  Do you know what things you can ask for?  Do you know if there are any things that you must ask for otherwise they might be permanently waived?  If you forget to ask for something do you lose your right to ask for that particular thing in the future? Do you ask for specifics such as the car you drive?  Or do you just ask the court to generally split everything 50/50 if that is what you and your spouse have talked about?  Do you know if Rhode Island is a 50/50 division state or what the legal standard is for property division in Rhode Island?  Does anything happen if you ask for something you aren't legally entitled to even if your spouse has said he or she will agree to it?  How do you word what you will ask for in the divorce so that nothing is missed?

The Complaint is only one of numerous documents that must be filed throughout a divorce case.  The purpose of this article is merely to demonstrate why lawyers don't "just fill in forms".  The forms provided by the court are as close as you can get to a one size fits all document.  Regrettably, it does not fit all cases and, in fact may not fit most cases.  As lawyers we know that we have to be fluid with the form and modify it where the factual circumstances do not fit within the form.

It is certainly true that we as attorneys prepare legal documents and fill in forms, but it is not merely blindly filling in forms because of any general information we have.  As divorce and family law attorneys we do much more than that.  

As you will note from the questions above, we know the difference between a Complaint for Divorce and a Complaint for a Divorce from Bed and Board and that the results are legally different and that each is normally pursued for very different reasons.  We also know that it sometimes makes a significant difference as to which party is the filing party (the "Plaintiff") based on factors such as (1) who wants the divorce and who does not, (2) who is local and who is not, (3) which county each party resides in if both the parties reside in Rhode Island, (4) which spouse has more time to give to the divorce to attend to the filing issues, (5) whether the other spouse plans to get a lawyer or not, and on occasion (6) who the judge is that might hear the case.

As lawyers, when we meet with client's and make sure the complaint complies with the law, we know when and where to modify it and which court has both the proper jurisdiction and proper venue to hear the case so that a case is not filed in the wrong jurisdiction or county.  Mistakes such as these can cause you issues or concerns or cost additional monies and time for re-filing.

When we approach the complaints we have created or prepare to fill-in and/or modify the documents provided by the court we know that the first two paragraphs are not merely filling in the blanks.  Those paragraphs tell the court about the parties and whether or not the court has jurisdiction over them so the case can be properly heard.  Simply filling in the first two paragraphs does not insure jurisdiction unless one of the spouses meets Rhode Island's statutory requirements for residency.   Therefore, what appear to be simple questions about where the spouses live are actually crucial.  Your answers may or or may not establish jurisdiction to invoke the family court's power to grant you a divorce.  Without the knowledge of whether or not what you are filling in for your residency is both accurate and triggers the court's jurisdiction could cause you a lot of wasted time if the court does not have the power to grant your type of divorce.

In the case of grounds for divorce, we have assumed it's amicable and that you would know that the preferred grounds in such cases is "irreconcilable differences that have caused the irremediable breakdown of the marriage."   This is referred to as a "no fault" grounds for divorce.   However, experienced divorce lawyers know that it is possible to plead more than one grounds in order to protect your client, including both a fault and non-fault (i.e. infidelity) grounds.  Family court lawyers who practice divorce know that there are actually eight (8) fault grounds for divorce and two non-fault grounds for divorce including living separate and apart for a space of time in excess of three (3) years.

Each aspect of the paperwork that is completed by attorneys in any divorce proceeding is done with the knowledge of the law and the court system.  Without this legal knowledge saying a lawyer just "fills in some forms" ignores the fact that each paragraph has legal significance and that if you fill it in incorrectly or fail to modify the court's "blanket form" in a way that complies with the law but still allows your divorce to be processed may cost you time, money or worse yet your legal rights. 

Here is a common example of a person who does not understand their case or what an attorney does.

Last week I received a call from an individual claiming she had an easy divorce .  She said it was uncontested and all worked out with her spouse.  I gave her a quote for an uncontested divorce as long as it remained uncontested and based on her representation had she it all worked out with her spouse.  She took issue with the quote I gave her claiming that it was easy to get married and since they had agreed on everything she didn't think it should cost more than $1,000 "just to fill in a few forms." 

I chose to ask a few questions and this is what I learned.

1.  The spouses hadn't spoken in almost a year and had no written agreement regarding how they wanted to divide their assets. 

2.  She lived in Rhode Island.  Her spouse lived in another country.  It was clear that research would need to be done to see if lawful service in the foreign country could be made on the spouse in accordance with the Hague Convention to ensure that the Rhode Island family court could obtain jurisdiction with allowable service in the foreign country.

3.  The woman's spouse had no intention of coming back to Rhode Island and did not want to  respond to the divorce proceeding.

4.  The foreign spouse had an affair but the local spouse didn't want to bring it up unless the agreement (which didn't seem to exist) fell through. 

5.  Both spouse's expected to simply sign a settlement document ad have the court sign off on it without testimony.  She was not aware the court has the power to approve or deny settlement agreements but only after testimony by the parties.

6.  The foreign spouse did not speak english and would require an interpreter.

7.  Since they expected a signed agreement the court would have to give permission for the foreign spouse to testify telephonically.

8.  It was not a short marriage and involved five (5) pieces of real estate in two (2) different countries.  There were also retirement accounts, bank accounts and personal property all of which were held in two (2) difference countries and were at least partially marital assets.  

In short, the court's form didn't apply and would have to be modified.  However modification could not occur until the issue of service of process had been researched.  Once service was researched, jurisdiction had to be confirmed for the proper location based upon whether legal service was allowed and in what form based on the Hague Convention and the laws of the foreign country.  Assuming Rhode Island had jurisdiction and service could effectively be performed, a concrete settlement agreement would have to be created for the parties not only because it involved real estate and assets in different countries but because the matter was likely to go before a judge that would not approve a verbal agreement between a bilingual individual and foreign spouse who required a translator. 

Based on what I had learned, the agreement would have to be drafted in both english and spanish and it would have to be approved in both forms by the parties in writing and under oath.  If that all went well, approval would have to be obtained from the judge hearing the matter for the foreign spouse to be allowed to testify by telephone and a court translator would have to be arranged for that telephonic hearing.  Since the foreign spouse did not speak english it was also likely that this particular judge might require all court documents to be drafted in spanish as well as english to insure the foreign spouse received proper notice of every aspect of the proceeding.  This was especially true because the foreign spouse presumably did not want to retain an attorney for the matter.

Even when these things were explained to the caller, the caller insisted I was attempting to make this more difficult than it needed to be in order to make money and claimed it was just a matter of filling out a few forms and would do it herself.

Regrettably, people often think lawyers complicate things unnecessarily. However, the fact is that the law is complicated and it is always changing. In the end, I was disappointed that the woman didn't realize the complexity of the matter she was dealing with.  I was, however, glad that I didn't have to explain to her that she did not have a simple flat fee uncontested divorce and that I would not undertake representation for the flat fee I had quoted her based on the her initial representations.

In closing, I have learned from numerous Pro Se individuals who handled their own divorces that one wrong word can cost you thousands of dollars in time and legal fees repair the damage caused by an incorrectly written document.  In some instances it has been difficult to inform a Pro Se individual that he or she filled in a divorce document incorrectly and as a result they lost something vital that cannot be undone.

It is always best to sit down for an advice session with a competent and experienced family law attorney in the state in which you have your issue before taking any kind of action.

For people within the State of Rhode Island, feel free to call me to set up your comprehensive low-cost flat fee legal advice session. Know what your options are before you act.

Call today and be on your way to getting the answer you need!  (401) 632-6976

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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Atty Chris Pearsall

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

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In a Rhode Island divorce proceeding the filing spouse is often concerned about the relief that is requested in the divorce complaint itself. 

This is particularly true if the spouse filing for divorce in Rhode Island wants to keep things amicable and is concerned about their husband or wife becoming upset or even fanatical when they receive a divorce complaint that requests something that the other spouse believes is outrageous or unreasonable under the circumstances.

In a divorce complaint many attorneys will prepare a complaint for divorce that requests virtually every form of relief that the filing party might want from the court.  Thus, an attorney may prepare a divorce complaint for filing in the Providence County Family Court that asks for alimony, placement of the minor children, child support and resumption of maiden name.  This may be true even if the attorney has been told by the client that he or she does not want alimony or to resume her maiden name.  

These provisions are often included by the attorney as a precautionary measure to ensure that the client does not waive that relief if something changes and he or she changes their mind after the complaint for divorce is filed.  In truth, it is a good practice when dealing with a client who is undecided or who seems to hesitate about any particular form of relief.

I personally don't disagree with the idea of including every possible form of relief in the request for relief regarding a client so as to make certain that the client has not waived any relief he or she may want after the complaint has been filed.  However, it's best to strike a balance here and discuss the matter with the client.  If the client expressed identifiable uncertainty to the attorney about the specific type of relief requested, it is better as a practitioner to request it in the complaint and ask the client for permission to include the provisions he or she expressly stated were not desired.  If the client is opposed to requesting, for example  "alimony" in their divorce complaint because he or she is afraid that the other spouse will take action to retaliate, then it is a better practice to listen to the client and exclude that provision it the divorce lawyer determines that it would be a marginal alimony case and simply make sure that you include for the client a sentence in the relief requested area of the divorce complaint that you also request "and any and all relief that this court deems fair and just."

You as the client should be aware that in practice things may be a bit different than a strict application of the law.  When the little clause just mentioned above is included in the complaint, then Rhode Island family court judges will generally allow an amendment of the complaint to include the requested relief later in the proceeding if there is a justifiable basis for doing so.

Ultimately, you are the client and you are in charge. If you don't want particular language in your Rhode Island divorce complaint then it is up to you to tell your Rhode Island divorce attorney that you want the language removed.  You may do this even if your attorney advises you that the language should remain for your protection.  This does not mean that your attorney must agree with you, nor does it mean that your attorney must continue to represent you if he or she thinks you are making a grave mistake. 

On the rare occasion an attorney may even refuse to proceed as your counsel if you want to exclude certain language that your divorce lawyer finds is crucial to your case.  Though this may be merely a precaution against any potential malpractice claim against the attorney later, it should be taken as a strong indication that if your attorney is willing to go this far to ensure that the language is included, that you, as the client, should probably defer to your attorney's advice.

In the end, a good attorney will advise you of the various considerations involved but ultimately defer to your wishes on the vast majority of issues even if he or she finds them to be contrary to your best interests.

It is good for the lawyer and client to reach an understanding on all family law issues in order to strike a balance between your personal and non-legal concerns as the client and the advice of an experienced and licensed legal practitioner. 

When in doubt, it is always best for you as the client to make the extra effort necessary to retain a lawyer with a dedicated family law practice who practices regularly (weekly if possible) before the Rhode Island Family Courts.

You are the client.  It's your life.  A good divorce lawyer who cares about your case will discuss all related matters with you and work with you on them to do what is best for you regarding your legal and non-legal concerns.  Once again, it is your life.  Don't settle for anything less than what you want and what you determine is in your best interests.

It's a mistake to think that RI Divorce Lawyers don't play a role in an uncontested divorce.  Believe it or not, your divorce lawyer can work some magic to make your life easier if he or she is skilled enough to do recognize that subtle changes can make huge differences.

Imagine that you approach an attorney with what seems to be an uncontested divorce between both husband and wife .  No matter how uncontested a divorce seems to be, it is a fragile thing because it involves people's emotions and relationships.  The wrong word or the wrong tact can turn an uncontested divorce into a tsunami.  Trust me, because I've seen it numerous times.

If the attorney drafts the Complaint for Divorce yet uses a few aggressive words, a demand for alimony, requesting exclusive use and possession of the marital home or that the other spouse pay all the debt.  Then it's possible that as well intentioned as you and your spouse may be, the attorney's language may end the "uncontested" tenor of the divorce very abruptly.

When the Defendant receives the Divorce Complaint, how might he or she react?  It would be very easy to be upset, angry, and less than cooperative from that point forward.

With a little magic of skillful creative language, a good divorce lawyer can word the Divorce Complaint in a non-threatening and aggressive manner and protect the divorce from becoming "contested."

Let's consider another situation.  If the attorney for the plaintiff in an uncontested divorce has the Defendant served by a Sheriff, it is more likely that the Defendant will become upset and defensive and much less cooperative from that point forward.  He or she might feel threatened, embarrassed, intimidated and start considering that the plaintiff is going to try to take advantage of him or her.

With a little magic, experience, and knowing how to handle an uncontested divorce delicately, a good RI lawyer could engage a plain-clothed, friendly, constable instead of a sheriff.  Isn't that a lot less threatening?  The lawyer could even arrange for the Defendant to have feel as though he or she has control of the service process by calling the person first and telling the Defendant that the plaintiff doesn't want to embarrass or inconvenience the person and so "if it agreeable to the defendant" a guy named Mark or Tony (the name of a constable) will be calling him or her to find out what the person would feel is most comfortable.  That way, the defendant is more likely to feel more at ease and cooperative in the proceeding because the service of process was uneventful and respectful.

 Do these things seem small?  Too small to be called "Magic?"  

I would have to disagree.

These are all psychological points that a truly good lawyer will know are necessary to help an uncontested divorce remain just that "uncontested."  A good lawyer knows that you even the smallest details are important to achieve that "uncontested divorce" goal for the client.

Here's the the crux of the problem.  Usually the longer a lawyer is involved in a case the more money they make.  If a matter is uncontested then attorneys makes a small fee.  If a lawyer creates controversy, even by small things like this (namely ones that can be explained away fairly easily) then a lawyer can make more money.

So why do I call it magic?  I believe it is magic to find a good lawyer who bypasses controversy and focuses on creating and maintaining an amicable divorce atmosphere.  Magic often has to do with redirecting a person's focus so that everything seems and truly is just fine.  Yet in the end anxiety and distrust vanish so that the parties can resolve their divorce amicably.

Doyou want an amicable uncontested divorce?  Then it is important to remember that there are many "magic tricks" to keeping a divorce amicable and prevent it from becoming contested.  Over the years I have learned many subtle psychological and practical techniques to help people get through a divorce amicably, economically and as quickly as possible.

The magic of uncontested divorces and keeping divorces amicable is a subtle yet magnificent talent that I have endeavored to perfect over the years for my clients.

With me, clients like you come first!  So why is this "Magic" so important and why do I want to use it to help clients?  The answer is in my own history.  I've already walked the path you are about to walk and I wouldn't wish it upon my clients.

For those who want an amicable and uncontested divorce, you'll find that I probably have the magic it takes to make your divorce go just a little bit smoother.

 I won't say I'm another David Copperfield.  

Why?  Because David puts the things back that he makes disappear.
  

My Very Best to You in Addressing Your Family Law Issues,
Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach."®

Serving Rhode Island Families exclusively in the Rhode Island Family Courts throughout our State for more than 12 years.

Call (401) 632-6976 for your low-cost paid advise session.  Make sure You know Your rights.

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Rhode Island divorces may be about legal issues and a whole lot more.  Divorces prompt not only legal issues but are instrumental in what people understand to be the dissolution of their relationship with their spouse and on lesser levels with their children and extended family.   Due to this psychological connection that is made to the legal divorce process, there are more than just legal issues that divorce lawyers need to address.

Due to the mental connection many people make between the legal divorce process and its perceived connection to the destruction of their life, the parties in a divorce often have feelings ranging from deep-seated anger to intense feelings of rejection.

Modern day lawyers need to realize that it is not simply enough to refer a client to a marriage, divorce, or individual counselor or therapist.

Clients today need to know that lawyers are not only doing their job but that the attorney is doing his or her job but also understands the personal struggles they are going through.  Divorce lawyers in a proper mindset will work with a client for the client’s best interests and realize that the client may experience periods of anger during which they hastily instruct the lawyer to take action which is likely to make their divorce proceeding worse rather than better.  Sometimes it is up to the lawyer to understand and appreciate this and calm the client or wait until the client has become more level-headed and not act on instructions given in the “heat of the moment.”

By the same token, lawyers need to understand and appreciate the pain the client may be going through and be prepared to listen to the client and his or her troubles in order to better understand what the client is going through.  This is true even if it means sacrificing some billable time on the client’s case in favor of being a better lawyer and counselor for their client.

As a lawyer focusing in divorce law I often err on the side of listening more to a client’s troubles, feelings of helplessness, or lack of understanding so that I can be a better lawyer for the client in the long run. 

The end result, care about the client more than the almighty dollar and you will be the better lawyer for it and your client will have a better chance to reach a more successful tomorrow for them.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™  

 As a dedicated divorce and family law attorney for more than a dozen years, I look forward to the privilege of serving your needs.

Call me for your affordable advice session at (401) 632-6976.