Request for Relief Issues in a RI Divorce Complaint Matter!
September 03, 2013
Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. The Rhode Island Divorce Coach℠
Google+ Christopher Pearsall Profile
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.