Including Divorce, Legal Separation, Child Support, Custody, Placement, Visitation, Alimony, Contempt, Paternity, Enforcement of Divorce Agreements, Child Relocation and more
QUESTION: I filed for divorce from my spouse. We each had lawyers. We settled the case. Our attorneys wrote the agreement up in a Property Settlement Agreement that we signed and submitted to the court at our divorce hearing. Just before the three (3) month waiting period ended for the Final Judgment of Divorce to enter, my spouse died. What happens to my divorce proceeding?
ANSWER:The currently governing case in Rhode Island is Centazzo v. Centazzo, 556 A.2d 560 (RI 1989). In Centazzo the RI Supreme Court ruled that divorce is a personal cause of action and therefore it terminates on the death of one of the parties. "Thus if an action for divorce is commenced and one of the spouses dies before the entry of the final judgment, the divorce action abates." Id. at 562.
In Centazzo the court ruled that the divorce action abated on June 25, 1986, the date Alice Centazzo died.
Therefore, upon the death of your spouse, the divorce proceeding ends on the date of death and you become a widow/widower. Unless issues remain to be addressed by the court in order to properly close the case, the case will usually closed by the court upon notice of the death of the spouse along with the death certificate.
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
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
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.
A person wanted some help and posted to the Avvo website for attorneys to provide assistance.
Three Rhode Island attorneys answered this divorce scenario. My answer and my comments on their answers are included to show the diversity between attorneys.
Each attorney's disclaimer has been removed since it's irrelevant to the answer and the attorneys are not disclosed here.
QUESTION: I still use the same address. Is it more complicated to use this as my legal address or changing to my mother's Massachusetts address?
DETAILS: We have not been together for many years but have not been able to afford divorce. I can not afford to have my own place and pay the house bills so I stay here and there which sometimes includes the house my family lives in. We would like to have the fast track divorce which looks like it will cost about $1,000.00 and can be done within 21 days of filing. It is uncontested the only deal is we need it documented that when the house sells we split the money if something happened to both of us the house would go to our sons (18 & 20). Thank you for this service.
Attorney Christopher A. Pearsall's Answer:
To get divorced in Rhode Island either you OR your spouse MUST be "a continuous resident AND domiciled inhabitant of the State of Rhode Island for the one year immediately before the date you file for divorce in Rhode Island. It is not about "addresses." You can get a post office box as an address halfway across the country with a simple telephone call but that is not a place where you have been a "continuous resident" AND "domiciled inhabitant."
Generally speaking to be a "continuous resident" you must continuously reside (i.e. live) in the State of Rhode Island for the one year period immediately before you file for divorce in this state. Therefore, if during the one year immediately before you file for divorce you live in Pawtucket, RI for 7 months with your spouse and then rent a place in Newport, RI for two months and then live with a friend of yours for the last three months in Warwick, RI immediately before you file for divorce in Rhode Island, then you would have been a "continuous resident" of Rhode Island for the full 12 months immediately before filing for divorce. In that case you would have met the first prong of the test.
However, before you can file for divorce in Rhode Island you MUST also meet the second qualification, namely you must be a "domiciled inhabitant" of the State of Rhode Island during that time. The key here is that you may only have one domicile at any give time. A "domicile" may be generally thought of as a place that you intend to live in for a particular period of time and you intend to come back to it. For instance, if you have a house that you have lived with in the year before you file for divorce in the State of Rhode Island and you have lived there with your spouse but things start getting tense with your spouse and you come back to the house occasionally but you rent an apartment in Attleboro, MA to stay in for 4 days out of the week to avoid the tension with your spouse, then there will be an issue as to whether you have been a domiciled inhabitant in the State of Rhode Island. The idea is that you cannot at any given time have two domiciles. You may only have one domicile . . . namely where you "really" or "primarily" live and do not intend to leave from at that particular time.
So, you must be both a continuous resident and have your single domicile be within the State of Rhode Island during that year before you file for divorce.
Using an address to prove residence with the court to file for divorce simply because it suits your purpose of filing because you get mail there or because that's where your license is still listed is a bad idea.
First, this is important because when you confirm your address with the court you must do so under oath before a Notary Public. Therefore, if you lie then you have committed perjury before the court which is a crime.
Second, this is important because even if your divorce is granted. If it is discovered that you or your spouse did not meet Rhode Island's residency requirement to obtain your divorce, then the divorce may be found to be void. If that is the case then you are still married. Imagine if you got remarried and had children!!! Then all of a sudden your wife is no longer your wife and your children would be deemed illegitimate. On top of this, if authorities really wanted to press it, you would be guilty of the crime of bigamy.
Ultimately, you don't have a choice to play games with addresses here. You either meet both criteria and you can file for divorce in Rhode Island, or you don't meet the criteria and you can't file or you have to wait until you do meet the criteria.
It is worth addressing the details that you gave following your question.
There is one way your divorce will take less time. That "one way" is if you and your spouse have been separated for a period in excess of three (3) years.
There is an uncontested divorce but there is nothing called a "fast track" divorce. Also, there is no divorce that you can get in 21 days.
If you have not been separated for more than 3 years, then even if things work like clockwork with the court the fastest you can possibly get your divorce completed is 5 1/2 months if it is uncontested.
If you have been separated for more than 3 years, then if things work like clockwork with the court the fastest can can usually get your divorce completed is 3 1/2 months if it remains uncontested.
You mention that you have a house that is to be sold and that you need certain provisions. Whenever there is a house involved you should make sure you have a Property Settlement Agreement that is written and contains all the terms regarding the house and is signed by both you and your spouse under oath before a notary public. It is never a good idea to have a house involved and NOT to have a written Property Settlement Agreement to present to the court for approval. If you do not have such a written agreement it is possible that you could have a problem with what is known as the "Statute of Frauds" which essentially requires transactions regarding real estate to be in a signed writing. A thorough description of the Statute of Frauds is unfortunately too detailed for answering a single question.
You also bring up what you want to happen if you and/or your spouse die. I'm certain it sounds simple to you to so this, but you then run into not only provisions in your Property Settlement Agreement being added but also taking into consideration whether either of you has a Last Will and Testament and, if not, what the laws are relating to intestacy in the State of Rhode Island (assuming for your question that the property you are talking about is within the State of Rhode Island).
Please be aware that this answer is provided as a courtesy based only on the facts and/or circumstances given and any assumptions I have had to make to try to assist you based on the way you worded your question and the details.
IMPORTANT NOTE: This is not legal advice. Also, this is NOT a substitute for sitting down with an experienced Rhode Island divorce and family law attorney and providing all the facts and circumstances surrounding your case and affording the attorney the opportunity to ask questions which could substantially change any information you may be given. Never act on any information you find on the internet. The only way to be assured that you receive competent, accurate and comprehensive advice regarding your legal situation is by meeting with a qualified legal practitioner who has the opportunity to fully evaluate your case and ask questions relating to your situation. The information on this page does not constitute specific legal advice to any person, nor does it create an attorney/client relationship with this attorney.
AVVO.COM OTHER ATTORNEY ANSWERS
Below are the actual answers provided by the attorneys on Avvo.com. Avvo.com only allowed 3 attorneys to answer the question. Above is the answer that I wanted to provide but was unable to due to the limited number of attorneys they allow to respond.
1) Do you notice the difference between my answer and their answers?
2) Do you notice any mistakes they made when informing the person asking the question?
3) Do you notice any misunderstandings the person had that they did not take the time do clear up?
Answer by Rhode Island Attorney No. 1:
I find this question a bit unclear. You must live in RI for one year if you want to get divorced here. If you want to be legal separated here you must only live in RI for one day. Residency is, in part, a matter of intent.
Answer by Rhode Island Attorney No. 2:
Do not lie to the court about which state you live in.
Is the house mortgage on both your names? If so, keep in mind that if the bank can report late and missed payments on both of your credit reports.
Answer by Rhode Island Attorney No. 3:
This question will best be answered by the attorney you are paying to represent you in your "fast track" or nominal divorce on the grounds of living separate and apart for a period exceeding three (3) years. They might also explain that as long as one of the parties has lived in Rhode Island for one year or more before the filing, you should be able to proceed.
Before you make a decision about any lawyer you may consider hiring... you need INFORMATION. Without good solid information and legal advice, how can you even know whether you should consider hiring a lawyer or how to tell whether the lawyer you are considering knows what they are doing?
The answer.... you can't.
All Rhode Island Divorce lawyers are not the same.
I'm Attorney Christopher A. Pearsall. CAP isn't simply my initials. You see, I've been making a difference by Caring About People like you for over 16 years practicing exclusively Rhode Island Divorce and Family Law.
For solid and comprehensive legal advice that you can rely upon. Call me to set up a lower-cost advice session. Give me a call at 401-632-6976 . . . you'll be glad you did!
Do you have anyone that you care about? If so, you may want to consider insuring that you have a Will drawn up by a competent Rhode Island Lawyer.
For many people, having their Last Will and Testament Drawn up is the last thing on their minds. Of course the reason for this is fairly obvious. Very few people want to think about their death and many times loved ones don't want to talk about it either because the thought of losing that loved one simply brings up unpleasant feelings.
Yet having a Will is important if their are people in your life that you care about and things that you have acquired during your life. Your Last Will and Testament is your chance to insure that things are distributed to your loved ones, favorite charities, etc... even after you are gone. It's your opportunity to provide for the people in your life that took care of you or that were closest to you.
If you have the opinion that you don't care about what happens to your things after you are gone simply because you are no longer present, you are certainly entitled to your opinion, yet I invite you to think again.
Probating an estate can be far from enjoyable for the people who are left behind. If you die without a will (intestate) and have assets and/or obligations sufficient that the Probate Court needs to be called into play, you may be putting a loved one through not only your death but the horrible task of dealing with your failure to plan for your death by simply creating a Will to tell the world what you wanted to happen with your belongings.
If you don't plan ahead and decide what to do, then the state (by way of the Probate Court) will decide for you and that may be very unpleasant for those that are left behind.
It's poor planning and shows a lack of care and concern for those your are leaving behind to simply assume that people will simply take what they want or that specific loved ones will receive what you have told them verbally that you want them to have.
Without a Will, or reciprocal Wills for a couple with children, sudden death for both parents involved in a car crash or some similar tragedy (unfortunately an event that occurs all too often) will leave the children without a legal guardian to protect their interests and look out for their well-being.
When you create your Last Will and Testament, you determine the way you want things to be . . . . without a Will . . . the state will decide what is best.
You be the judge. Who would be better off making good decisions about your property, your debts, your children and your life's holdings.
I'd bet on you every day of the week and twice on Sundays.
Feel free to contact me if you are in Rhode Island and need to form your Last Will and Testament economically and effectively.
All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™
