Rhode Island Divorce Tips

You and your spouse may be headed for divorce. Your spouse is on the computer frequently but shuts off the computer or the monitor whenever you come near. You become concerned that your spouse may be having an affair or may hide marital assets. Your spouse hasn't provided you with the websites he/she visits or his/her login information for any sites or their email.  You mention this to a friend who asks if you have considered using a keylogger.

A keylogger is a small computer program or app that is often installed on a computer (though as of this writing their are keyloggers for smartphones) that records every keystroke made by the users of the computer and stores that recording in a file on the computer. Many keyloggers also take periodic snapshots of the user's computer screen every few minutes.  Quite a few keyloggers then email the file with recorded keystrokes and the snapshots of the computer screen to you without anyone's knowledge.  The question remains whether you can use keyloggers to conduct surveillance on your spouse.

There is no specific RI Supreme Court case law addressing this answer from a divorce perspective.  Yet there are several considerations regarding existing law that should be made and lead me to my own conclusion.

The existing law considerations for using a keylogger on a computer to conduct surveillance on your spouse relate to the Federal Wiretapping Act (FWA), the Rhode Island Wire Tapping Act (RIWA), the federal Stored Communications Act (SCA) as well as laws relating to the violation of a person's right to privacy.

Though I have reviewed each of the Acts above, the Federal Wiretapping Act (FWA), when broken down into its component parts is the most detailed as it relates to private individuals and electronic communications, and provides, that the FWA with limited exceptions prohibits individuals from;

1) intentionally intercepting any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

2) intentionally endeavoring to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

3) intentionally procuring another person to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

4) intentionally procuring another person to endeavor to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications.

5) intentionally disclosing to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.  (namely, 19 USC § 2511(1) - the prohibitions subsection).

6) intentionally endeavoring to disclose to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

7) intentionally uses the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection. (namely, 19 USC § 2511(1) - the prohibitions subsection).

8) intentionally endeavors to use the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

The criminal punishment for violation of this Act is to be fined pursuant to the FWA and/or imprisoned for a period of not more than five (5) years. The FWA also provides that a person whose electronic communications are intercepted in violation of the FWA may proceed with a civil action for injunctive relief, civil and punitive damages, attorneys fees and costs.

These are the summarized provisions only for the FWA.  This is fairly restrictive and the definitions are very exacting.  The RIWA had the power to make narrower restrictions than the FWA.  Yet an analysis of the RIWA here is not truly necessary in my humble opinion given the extensive federal prohibitions. The only issue that arose in my analysis was whether a keylogger "intercepts" a transmission that passes through a wire related to interstate commerce.

In reviewing this particular aspect and analysis of the FWA as it related to keyloggers, I found a very persuasive though not legally controlling case heard in the Kent County Superior Court in the State of Rhode Island in the case of Williams v. Stoddard Case Number P2012-3664.  Based on the analysis in Williams regarding the violation of the FWA, RIWA, and the SCA when a wife used a keylogger to obtain her husband's login credentials and accounts and then accessed those accounts to get information for her divorce and for use against her husband's employer the North Kingstown Police Department.  The Court found in that case that the wife did, in fact, violate the FWA and the RIWA by her use of the keylogger and did, in fact "intercept" the communication using the keylogger and the subsequent disclosure of the contents of the information to her husband's employer.  The RI Superior Court also found that the wife was subject to a lawsuit for compensatory and punitive damages as a result of her violation of the FWA and her spouse's right to privacy. 

In Williams no distinction was made either by the court or by the parties as to (1) who owned the computer, or (2) whether the wife had the right to access or use the computer upon which the keylogger was installed, or (3) whether the computer was consistently connected to the .  Whether this was an oversight or a non-issue as it related to the analysis by the parties or the court is unclear.  However, the analysis in the case is consistent with the language of the FWA and the rule of statutory interpretation that the court in arriving at the meaning of a statute is to, if at all possible, give efficacy and meaning to a statute based upon its intent.

Ultimately, it is my conclusion based on the current language of the FWA and the persuasive case law combined with a review of the language of the RIWA and the SCA that the use of a keylogger to conduct surveillance on your spouse on any computer constitutes the unlawful interception of electronic communications in violation of, in the least, the FWA and very likely the RIWA and thus is illegal and subjects persons using keyloggers or having others use keyloggers for them of being charged criminally and subjects the person to criminal fines, penalties and/or incarceration.

When in doubt, use legal means to conduct your surveillance or obtain the information necessary for your divorce case and consult an experienced attorney as to whether the manner you want to use to obtain information on your spouse is legal before attempting to use it.

 

 

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

There are laws in virtually every state that protect the abused.  In Rhode Island we have protection from abuse laws and it is important and appropriate that we have them. 

However, they are not only laws but mindsets that are badly in need of revision and reconsideration.

These laws are codified in Chapter 15-15 of the  Rhode Island General Laws § 15-15-1* et seq. and entitled "Domestic Abuse Prevention."

Rhode Island also has Chapter 15-15.1. The Uniform Interstate Enforcement of Domestic Violence Protection Orders Act which relates to the power within our state to seek the enforcement of Protection from Abuse Orders and Judgments made by foreign tribunals.  For the sake of brevity, these are orders that are generally those issued by courts and tribunals other than the State of Rhode Island. 

For this article though, let's concentrate are Rhode Island's own Domestic Abuse Prevention laws.

Rhode Island's Domestic Abuse Prevention laws cover abuse between a variety of persons.  Specifically, to be within the jurisdiction of the family to court to hear the matter any acts considered "Domestic Abuse" must occur between 1) present or former family members, 2) parents, 3) stepparents, 4) persons who are or have been in either a substantive dating or engagement relationship within the past one year in which at least one of the persons is a minor.  RI Gen. Laws Rhode Island General Laws § 15-15-1(2)

According to the reading of the statute abuse can occur between any combination of these particular classes of people.  That covers quite a bit of ground as it relates to "family" that might be involved.

The statue goes on to describe what constitutes "domestic abuse."

Domestic Abuse is any one or more of the following actions perpetrated by a person in one of the four classes of people identified above:

(1)     Attempting to cause or causing physical harm;
(2)     Placing another in fear of imminent serious physical harm; or
(3)     Causing another to engage involuntarily in sexual relations by force, threat of force, or duress.
(4)     Stalking or cyberstalking

While the individual definitions of these actions causes serious problems in themselves, perhaps the most problematic part of the Domestic Abuse Protection statutes is the the process itself.

In essence, a Person files a Protection from Abuse Complaint to obtain an immediate Ex Parte Temporary Protection from Abuse Order a person only needs to swear to an affidavit that 1) identifies herself or himself as a member of one of the four classes of people identified above, and 2) allege anything that falls within the four categories of domestic abuse with enough convincing language (notice I did not say facts) that gives the judge a reasonable belief that domestic abuse is likely occur to the person if the Temporary Protection from Abuse Order is not issued.

An Ex Parte Protection from Abuse Order is essentially a restraining order that usually often gives the applicant 1) immediate exclusive use and possession of the home and all the things in it, 2) no contact from the party alleged to have abused them at home, work or elsewhere , 3) sole legal and physical custody of any minor children the parties may have together, and 4) relinquishing any firearms to local authorities.  The Order may include other things depending upon what is requested and whether the judge granting such an Ex Parte Order deems it appropriate in his or her discretion.

It is, unfortunately, all too easy to obtain one of these Ex Parte Orders against a man.  Notwithstanding assertions to the contrary, men are perceived as the stronger sex.  Somehow, because we are considered the stronger sex has somehow equated into the fact that by being the stronger sex we are more prone to use that strength to abuse. There is, however, no legal, factual or scientific basis for making this leap in logic.  However, realistically that is what happens. 

In speaking with several police officers this year, I discovered that when they are called to a "domestic disturbance" they are taught to enter the situation with the presumption that the man is the aggressor.  This approach is no different in the court system.  If a woman presents a Complaint for a Protection from Abuse against a man with the accompanying affidavit signed under oath, the Family Court Judge is likely to grant it if it appears the items in the statute have been alleged and the judge forms a reasonable belief that domestic abuse is likely to continue to occur or that occur again if the Ex Parte Order is granted.

The Ex Parte Order can last for up to 21 days before the court hears the matter based solely on the allegations made by the complainant.  For purposes of this article only, let us assume that the complainant is a woman since very few men, in fact, make such complaints for fear that they won't be taken seriously or that they will be viewed as less than men if they do so.

The Case of Donald's Turmoil 

Donald and Teresa were married.  Teresa moved into an apartment that was solely in Donald's name right after they got married.  They had a son about 10 months later.  Donald came home from work one day and was served with an Ex Parte Protection from Abuse Order from the Rhode Island Family Court. The police informed Donald that he had been ordered out of the house and he would be given time to get some of his things.   The police escorted Donald through his own house to the couple's bedroom where he was given 15 minutes to stuff a few essentials into a garbage bag.  Donald was lead outside and the officers told Teresa they would stay outside and wait until Donald had driven away.

Donald was in shock and stopped in a parking lot to read the paperwork.  The order was specific.  Donald was ordered to stay out of the home.  He was ordered to have no contact with Teresa.  Teresa was temporarily awarded sole legal and physical custody of their son.  In three weeks there would be a hearing to find out if the order should be continued for up to 3 years.

Then Donald read Teresa's sworn statement.  Teresa had alleged that Donald had placed her in fear for her life by getting into a rage and throwing a coffee cup at her head causing it to strike the wall and shatter into pieces all while she was holding their son.  Teresa claimed that this put her in fear for her life and the life of their child. 

Donald was incredulous. Teresa had lied.  Not a single allegation was true.  Donald did not understand why Teresa was doing this. Donald had some clothes and toiletries and that was it.

He couldn't contact Teresa.  He couldn't go home.  He had no relatives or friends that he could stay with or call on for help.  He had no way to make arrangements to see their two (2) year old son without breaking the Ex Parte Order.

So Donald did the only thing he could do.  He slept in his car and clean up as best he could in the bathroom at work.  Donald got paid and used the little money he had to get a lawyer thinking it was going to be just one hearing.  On the day of the court proceedings, Teresa showed up saying she needed time to get a lawyer.  Donald's attorney objected.  The judge would not hear the case and continued the hearing another month to Teresa to get an attorney.

Fast forward a month.  Donald had still been living in his car and cleaning up at work.  Teresa got a lawyer just before the court date at no fee to her.  However, now Teresa's attorney needed time to meet with her and to get up to speed on the case so the attorney asked for another continuance.  Donald's attorney vehemently objected stating that he was being denied his due process rights as well as access to his son and his home.  The judge granted 1 hour per week of supervised visitation for Donald at the courthouse as if he were some criminal.  The judge also ordered Donald to continue paying the rent for the apartment until the court could hear the matter regarding child support.  All of this was over the objections of Donald's attorney.  The judge gave Teresa's lawyer a 5 week continuance.

During the ensuing 5 weeks Donald continued to live in his car as before.  Out of the 5 weeks of visits that Donald was supposed to receive, he received 2 when Teresa claimed that she could find no transportation to get the baby to the courthouse the other (3) times.

Fast forward 3 months.... Donald had been ordered to pay child support without the underlying protection from abuse matter being heard.  Again Donald's attorney had objected.  Donald had seen his son a total of 10 hours in 6 months.  Donald had lived in his car for 6 months because Teresa insisted on pressing the Protection from Abuse Complaint.  Each and every time there was an excuse by Teresa or her attorney why the matter could not be heard.  Either Teresa was sick, there was a death in the family, she didn't have a ride to court or the Attorney was on vacation.  Still the court denied Donald his opportunity to testify or to try to prove that no Domestic Abuse was committed.  Each time either Donald or his attorney tried to speak about the substance of the case the court refused to let them speak.  Donald was served with divorce papers immediately after one of his supervised visits with his son.

Fast forward again to 6 months, Donald and his lawyer went into court.  5 continuances had already been granted to Teresa and her lawyer.  This time, Teresa's lawyer stated that income documents had been subpoenaed from Donald's employer but that his employer had not come in with the documents so a continuance was needed since child support depended upon them.  Donald's lawyer objected angrily.  The judge was frustrated.  However, the judge and was going to grant yet another continuance. 

This time Donald's lawyer wasn't going to be silenced.  Donald's attorney told the court how they had intended from the very start to prove that this court had been duped.  We are prepared to give evidence of how Teresa lied on her affidavit, that she was having an affair, that she had moved her boyfriend into the house within hours after Donald had been forced out of the house by the Ex Parte Order. 

The judge told Donald's attorney to stop or he would be found in contempt.  The attorney didn't stop.  He continued to describe how the court had helped Teresa because preventing the truth from coming out sooner allowed the boyfriend live in the apartment at Donald's expense. The attorney quickly described how this boyfriend had been "playing daddy" for the last 6 months while the court kept buying the excuses given by Teresa and her attorney.  Donald's attorney expressed his outrage at how the court was denying his client his home AND his right to be the child's father AND particularly his client's right to be heard on this matter without reasonable due process.

Teresa's lawyer immediately asked the judge to speak with Teresa outside the courtroom.  The judge called for a 15 minute court recess.

Donald and his attorney took a seat.

Twenty minutes later the judge came back out and Teresa and her lawyer came back in.

Teresa voluntarily dropped her Complaint for the Protection from Abuse.  Teresa asked that Donald not return to the apartment until tomorrow.  Donald agreed.

The next day Donald returned to the apartment.  Everything was gone.  Beds, big screen television, appliances, all of their son's things.  He was left his clothes, one bureau a livingroom area rug.  There was junk and pizza boxes strewn about the apartment, a few broken windows and several holes made in the walls.  Donald had no idea where his son was.

If you have read this story, excellent.  Now you are enlightened.  This is not dramatized.  In fact, it is minimalized because the entire story would be too long for most people to endure personally let alone to read.

The Protection from Domestic Abuse laws are too easily manipulated.  They work on the presumption that when people swear under oath to the court that they will be honest and tell the truth, in context, so that the court can do the right thing for truly abused men and women.  I'm an optimist at my center, but I realistically know that people lie every day.  Many people lie on their taxes. Some lie when they are angry.  Some lie just to get their way or because they have an ulterior motive.  To many people it doesn't matter whether the lie is made before a clerk, judge or a notary. 

This story is not out of the ordinary.  All you have to do is lie on the affidavit to the court and for at least 3 weeks you can get a person thrown out of their own home, you keep them away from their children, you can keep them from all their possessions.  In the end, even if you prove that the story they have given the court is fabricated, in 28 years in law in the courts of this state as well as Massachusetts, Vermont and New Hampshire I have not once seen a single person punished for committing perjury even though it is a crime.

Perjury in these types of cases is the most aggregious I can imagine.  You are denied your home, your children, your property .... and all it takes is 3 to 5 sentences of lies phrased in just the right way.  This does such a tremendous disservice to the people who are truly abused and who these laws were intended to serve and protect.

Most of all I would like to caution men.  Protection from Domestic Abuse Complaints are the most frequently used tool of women who want to maintain control in a divorce and sometimes in other proceedings.  By filing for this first it allows them to gain both control of the house, belongings and children and to taint the court into believing that the male spouse is an abuser.  If a judge were to be tainted in this way, might a judge believe that a man who could commit domestic abuse would have no problem lying to the court? 

Yet aren't we innocent until proven guilty you might think.  Not under the Protection from Domestic Abuse Laws. 

So is it possible to taint a judge by presenting a man as an abuser in such a way? 

Hey, anyone can be tainted! 

Related articles

RI General Laws § 15-5-12 Domicile and Residence Requirements

Enough of the Bias Already! When Family Court Judges Cross the Line!

Collaborative Lawyers in Rhode Island - The Mistake of Avoiding the New and Different.

FAQ: Why Can't the Rhode Island Family Court Clerk's help me fill out forms?

Parental Alienation - Exists Despite What Some People with their Own Agenda Report!

How to recover from domestic violence - Boyle Feinberg, P.C.

7 ways domestic abusers get to keep their guns

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.

Related articles

RI General Laws § 15-5-12 Domicile and Residence Requirements

Enough of the Bias Already! When Family Court Judges Cross the Line!

Unique Rhode Island Divorce Questions: Avvo Answers Clarified

Collaborative Lawyers in Rhode Island - The Mistake of Avoiding the New and Different.

FAQ: Why Can't the Rhode Island Family Court Clerk's help me fill out forms?

Parental Alienation - Exists Despite What Some People with their Own Agenda Report!

Forgetting to Address Life Insurance In a RI Divorce Proceeding can be Costly!

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

Divorce Can Impact Your Car Insurance Premiums

 

  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

Related articles

Enough of the Bias Already! When Family Court Judges Cross the Line!

RI General Laws § 15-5-12 Domicile and Residence Requirements

Collaborative Lawyers in Rhode Island - The Mistake of Avoiding the New and Different.

FAQ: Why Can't the Rhode Island Family Court Clerk's help me fill out forms?

Parental Alienation - Exists Despite What Some People with their Own Agenda Report!

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

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

Google+ Profile

Google+ Publisher Info

Rhode Island Divorce mediation is not a new concept.  It may or may not be of benefit to you in your spouse in resolving your divorce issues.

Divorce mediation typically involves you and your spouse agreeing that you will sit down with a third party as a mediator in an effort to reach an agreement that is acceptable to both spouses for the resolution of the divorce . . . or perhaps better referred to as the settlement of the marriage.

It remains controversial as to whether the mediator must be an attorney or whether another third-party good at negotiating solutions to family issues is sufficient.   From the perspective of a Rhode Island lawyer who focuses his legal practice in the areas of Rhode Island divorce and family law I can see the pros and cons of using either. . . . and they are significant.

Consider this one example:

You and your spouse either know or agree that you will get divorced.  Your spouse suggests that you can reach an amicable resolution by sitting down with a Rhode Island marriage and family counselor who has had success in helping couples find common ground deciding what to do to finalize their divorce.

You and your spouse go to this Rhode Island marriage and family counselor.  A portion of the mediation session goes like this.

Counselor: [To Both of You] Now, I know this divorce isn't going to be easy for either of you but you both need to be able to survive and move forward with your lives after this is over, wouldn't you agree.

Parties:  [Both nodding]

Counselor [to You] :  Okay.  Now I understand that you've been the main earner in the household, is that right?

You:  Yes, that's correct.

Counselor [to Your Spouse]:  And you work part-time to help out with the expenses when needed but you mainly use the money you make for your own personal spending money, is that right?

Your Spouse:  Yes, that's about right.

Counselor [to You]:  Now you have a college degree, is that right?

You:  Yes

Your Spouse:  And I have my high school diploma.

Counselor:  And how long have you two been married?

Your Spouse:  We've been together for 15 years and married for almost 12 years of that time.

Counselor:   And during that time,  who has been making what portion of the income for the most part?

You:  I've made about 80 to 85% of our income.

Your Spouse:  And I've made the remaining part.  I think that is a pretty good estimate.

Counselor:  Now in my experience only uncivilized and vindictive people go through a divorce and try to hurt their spouse.  I don't think either of you fall into that group because you're here meeting with me today, is that fair to say.

Both You and Your Spouse:  Yes.

Counselor [To You]:  Okay  . . . now you understand that your spouse is going to have a much harder time financially to make a go of it without your income, right?

You:  Well, yes.

Counselor [To You]:  And it's no secret that your spouse has been relying on you financially for the past 12 years to survive, right?

You:  I guess so.

Counselor:  Well, here you are getting ready to go through your divorce here in Rhode Island and it's important that we agree regarding the things we're discussing here today so it's important that we are sure about thing that we agree on so it's better if we don't guess.  Has your spouse been providing mostly for her own support for the past 12 years?

You:  No.

Counselor:  Has your spouse been relying upon someone else other than herself for her financial needs?

You:  Yes.

Counselor:  Okay, can you give me that person's name and address.

You:  Well, that person is me!

Counselor:  Oh... there isn't anyone else?

You:  Not that I know of.

Counselor [To Your Spouse]:  Well, is there anyone else that you've been relying on for your financial needs?

Your Spouse:  No.

Counselor [To You]:  So is it fair to say that your spouse has been relying on you these past 12 years?

You:  Yes.

Counselor [To Both of You]:  Now you both realize that your divorce is going to change that, right?

You and Your Spouse:  Yes we do.

Counselor [To Both of You]:  And you both realize that your spouse is going to need to survive financially after this divorce, don't you.

You and Your Spouse:  That makes sense.

Counselor [To Your Spouse]:  Now you probably figured out already that you're probably going to have to work on a full-time basis and take care of yourself after this divorce is done.  Have you considered that?

Your Spouse:  Yes.

Counselor [To You]:  And you've probably figured out that you're probably going to have to help your spouse financially for a time, right?

You:  What?!?

Counselor [To You]:  Well, your spouse has been relying on you for 12 years.  We just talked about that a minute ago, correct?

You:  Yeah.  What's your point?

Counselor [To You]:  And you agreed that you both need to be able to survive financially and be able to move on  with your lives after this, right?

You:  Yes I did, but. . . [trailing off]

Counselor [To You]:  You didn't expect that you were going to support your spouse for 12 years and then just get a divorce and the family court would just let you walk away did you? 

I mean . . . this is 12 years you've been doing this for your spouse.  Doesn't it make sense that the Rhode Island family court is likely to tell you that you'll need to provide some financial support to your spouse for a bit longer so there is time to recover financially?

You:  Well I didn't think I'd have to pay . . .

Counselor:  But it makes sense,  doesn't it?  You supported your spouse for 12 years or more  and you are the one that makes most of the money.  Your spouse needs a little bit of time, probably a couple of years, to adjust to this huge change, get new job skills, work up to a full-time job and perhaps develop skills for another job.

You:  Yeah but. . . [thinking]

Counselor:  So you need to be prepared to help out for some period of time, it's only fair isn't it?

You:  I suppose so.

Counselor:  Now you've built up a pretty sizeable retirement account, do I have that down right?

You:  Yes . . . I think iw was about $175,000.00 as of the last statement.

Your  Spouse:  Let's keep in mind that there's some infidelity here.

You:  Well you drove me to it.  If you weren't so cold and distant I wouldn't have had to find someone who cared and could give me what I needed.

Counselor:  Okay . . . let's remember that this isn't to try to resolve all of your personal issues, this divorces mediation session is for us to see what affect all of these things have had on you and how we can work out an agreement for your divorce.  The idea is, what can we mutually agree upon so that we can help you move forward with each of your own separate lives after this is all over.

Your Spouse:  But that's what this divorce is all about?

Counselor:  I can completely understand that you feel that way, and if I didn't know better I'd probably agree with you, yet in the end this is all about a relationship that has broken down and can't be fixed.  When that happens people go through a legal divorce proceeding.  What we're here about today and what you both hired me to do is to try to see if we can reach some common  ground to go your separate ways fairly.

Your Spouse:  Well, I want it all.

You:  All of it?

Your Spouse:  I think it's only fair since you cheated on me. 

You:   Are you crazy?

Your Spouse:  You should have thought of that before finding another bed to sleep in.

Counselor:  [Interrupting the squabbling] Are we done?

You and Your Spouse:  Done?  What are you talking about?

Counselor:  We're done, right?  You two just want to hurt each other so we're done, right?  I've earned my fee and you can go into court and just scream at each other.

You and Your Spouse:  No... [you] .     No.  [your spouse].

Counselor:  Then let's look at things here.  Is this a fault divorce?

Your Spouse:  No it's not.  My attorney says I should file based on irreconcilable differences.  But I deserve something.

Counselor [To Your Spouse]:  Well perhaps that's true yet isn't ALL of it a bit much?

Your Spouse:  Not to me.

Counselor [To Your Spouse]:  Okay... you say that you were cheated on, right?

Your Spouse:  Yes I do.

You:  It's not true though!! [very defensively].

Counselor:  Okay, I'm not going to agree if it's true or not, but assuming it is true just for the sake of argument, how much did this affair... affect the value of the $175,000 retirement plan?

Your Spouse:  How much did it affect the retirement plan?

Counselor:  Yes. 

Your Spouse:  It didn't.

Counselor[To Your Spouse]:  It didn't affect the retirement account at all?

Your Spouse:  No.

Counselor [To Your Spouse]:  Then why are you asking for all of it?

Your Spouse:  Because I deserve it!!

Counselor [To Your Spouse]:  Why?

Your Spouse:  Because of the affair?

Counselor:  So what you are saying is that if you were originally entitled to 1/2 of the retirement account that you are entitled to the other $87,500 because you were cheated on.

Your Spouse:  [Hesitating]  Well. . . . yes that's what I'm saying.

You:  I did not cheat on you or have any affair!

Counselor:  [Interrupting again] . . . You're hurt.  I understand that.  And maybe that is worth something financially . . . yet it just doesn't seem quite reasonable to ask for the whole retirement account when you even say yourself that the affair didn't hurt the retirement account or your part of it.  A judge might give you half or a little more but I don't think a judge would give you all of it.

[Silence as Counselor thinks...]

Counselor [To Your Spouse]:  Assuming just for the sake of argument that there was an affair and no damage was done to the retirement account as you've already said, what do you think is reasonable to ask a judge for.

Your Spouse:  I don't know.  I'm not a judge.

Counselor:  Well what does any affair have to do with all the hard work and deposits that are made into a retirement account if you were to get 1/2 of it right off the bat?

Your Spouse:  Well it doesn't have anything to do with it when you put it that way.

Counselor [To Your Spouse]:  Okay, well we've agreed that you will need some financial help for a bit of time to get on your feet.  Keeping that in  mind, how much of the retirement plan would you agree to take in order to resolve this issue and get on with your life?

Your Spouse:  75 percent.

You:  You are kidding me.  For an affair I didn't even have?!?

Counselor [To You]:  So that isn't acceptable to you, right?

You:  No!  That's robbing me.

Counselor [To Your Spouse]:  Okay, is there a lesser amount that you might consider.

Your Spouse:  Sure.  Give me the whole thing and I won't take anything from you to get by until I get on my feet.

Counselor [To You]:  What do you think of that?

You:  [Thinking]

Your Spouse:  Otherwise I'm going to go to court and ask for financial help for the next five (5) years plus 75% of your retirement.

You:  [Frustrated] ..... Fine.

Counselor [To You]:  Fine to what?

You:  [Still Frustrated]:  If I don't have to give her any extra financial help then she can have the entire retirement account.

Counselor [To You]:  Are you sure?  We're going to set this down in stone so this needs to be firm that you absolutely agree to this.

You:  Yes... yes... yes... I agree.  Let's move on.

In this Rhode Island Divorce mediation setting you can see the interpersonal skills of the Marriage and Family Counselor at work.  The mediator tries to work with each party, keeps him or her focused on the issues at hand using excellent personal relationship skills and discusses the various positions without taking the side of either party.  Logic and common sense are a part of the dialogue yet he or she does not use legal arguments.  The parties are drawn together toward a resolution that each agrees upon that the parties agree will be committed to paper and signed as a resolution of their divorce issues.

The pros of a third-party divorce mediator with counseling and/or psychological skills but who is not law trained are seen mostly in the method used by the mediator/counselor to bring the parties together by agreeing in part with each of their positions, providing understanding and also redirecting the party to another way of thinking about a situation without taking on the role of being an advocate for the other party.

The con of using a third-party divorce mediator who is not law trained is the lack of practical family court experience and knowledge of the process.  In this particular case, an attorney acting as a mediator for a divorcing couple would be inclined to call to Your attention that alimony in Rhode Island is rehabilitative in nature, may be very limited in time or scope and is also dependent upon Your income and other assets that may be available from the marital estate.  This is something a third-party divorce mediator will not usually undertake since the objective of a mediator in this instance is simply to reach an agreeable result and not necessarily achieve a fair result based upon how a Rhode Island family court judge is likely to rule.

The pros of using a law trained mediator are obviously the cons of the third-party counseling divorce mediator.  Law trained mediators (such as lawyers focusing their practice in divorce and family law) bring with them the realistic and practical real world results that come from seeing actual cases before the court.  This would seemingly lead to a more equitable result or perhaps a result that is more in accord with a result that you might receive from a Rhode Island Family Court Judge presiding over your divorce.  Agreements by law trained mediators are more likely to encompass a whole agreement which is dependent upon each of it's components (i.e. it is a package deal) in order to work as opposed to a bunch of individual elements that are segregated and agreed to one at a time.

The con of using a Rhode Island law trained mediator (i.e. Rhode Island Family Law Mediator) is the lack of any formalized counseling and/or psychological training which helps to facilitate the atmosphere where the parties are drawn together to reach agreement.

If at all possible a Rhode Island law trained mediator who is regularly practices before the Rhode Island Divorce and family court system and also has background in counseling and/or psychology is perhaps the best bet both for reaching an agreement generally and in particular for reaching an agreement that is an accordance what a Rhode Island Family Court judge is likely to order.