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

 

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  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


What are Guardian Ad Litem Recommendations?

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By:  Christopher A. Pearsall, RI Divorce Lawyer

Important Note: As a Rhode Island lawyer I am limited to answering your question only as it relates to Rhode Island Divorce and family law situations. Other jurisdictions may vary slightly or greatly from this standard.

Rhode Island and Guardian Ad Litems

When a Guardian Ad Litem is appointed in a case, typically they are appointed to protect the best interests of a minor child (or children), although in rare cases a Guardian Ad Litem may be appointed to represent the interests of an a party in a proceeding who has demonstrated a decreased capacity to understand or appreciate the nature of the proceedings and the ramifications that might occur.

For instance, I am aware of one case many years ago where a Guardian Ad Litem was appointed by a family court judge in a divorce proceeding in which one of the parties could not quite comprehend how the divorce worked and the repercussions of certain decisions that had to be made because the party was not in touch with reality and frequently took advice from a little man that sat (invisibly I might add) on the party’s right shoulder. The party would routinely consult the little man in the middle of court proceedings causing great confusion and frustration for both the lawyers and the court. In that case the court had to consider appointing a Guardian Ad Litem for the adult rather than a child, to make sure that the interests of the adult were reasonably protected in the adult’s best interests. This became the role of the Guardian Ad Litem. The recommendations were to evaluate settlement offers and determine whether they should be accepted or rejected and what needed to be produced in the way of documentation and/or answers to questions as the divorce litigation proceeded and whether the adult understood the nature and consequences of the proceedings.

The recommendations could relate to any number of things based upon what the court’s directives are to the Guardian Ad Litem.

When it is a minor child or children involved the recommendations are typically regarding which parent may be the most important parent to have physical placement of a child (in the child’s best interests) based on the legal requirements the Court itself would often consider under the prevailing law in the state. For instance, in Rhode Island the seminal case is Petinnato v. Petinnato, 582 A2d 909 (RI 1990) which originally set forth eight (8) factors the Rhode Island family court judge presiding over the case (and consequently a Guardian Ad Litem) must consider regarding the best interests of a minor child.

Typically, the recommendations of the Guardian Ad Litem may relate to who the parent who should have primary placement of a minor child or children should be, whether there should be joint physical placement where each parent spends equal time with both parents, what parenting time a non-placement parent should receive and under what conditions, whether counseling is recommended for the minor child or children or one or both parents.

What is important to know is that recommendations of the Guardian Ad Litem are just that … recommendations. The judge may certainly taken them into consideration but the judge is not required to abide by those recommendations nor is the judge required to accept any factual findings the Guardian Ad Litem may make as a result of his or her investigation to arrive at his or her recommendations.

In other words, the recommendations of the Guardian Ad Litem do not bind the judge. They are merely to help the court and they are for the judge’s consideration only. However, it is worth mentioning that if the Guardian Ad Litem is well-known and trusted by the judge because he or she is thorough, is well-known to the court as doing a good job evaluating prior cases that may have been assigned to the Guardian Ad Litem, then the court is likely to give great weight to the Guardian’s recommendations. An opposing party has the right to challenge the Guardian’s findings and recommendations in court. However, if this is a long standing Guardian used by the court and in which the court has confidence, this may be an uphill battle for any person attempting to challenge the Guardian Ad Litem’s recommendations.  However, if the Guardian's recommendations are contrary to your legal rights as a parent or deprive you of fundamental time in your wife and your child's life then you may want to challenge them.

What is most important to remember is that the Guardian Ad Litems’ recommendations do not bind the judge at all and the judge may reject them in whole or in part if the court disagrees with the findings or finds the investigation to be less than thorough.


Under RI law, who is a "de facto" parent and do you qualify as one?

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

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Question:   In the state of rhode island what is a de facto parent and what are their rights?


Answer:  This is a factually driven question in each case and results from a determination of the Rhode Island Family Court judge.

In essence a "de factor parent" is a person who stands in the position of a parent based upon an interested person's interaction and relationship with the child.  For instance, due to the relationship and interactions between an adult and a child the court may determine that a person is a "de facto parent" be he or she a mother or a father.

In Rhode Island the right of an interested person to make such a claim is basically set forth in R.I. Gen. Laws §15-8-26 which states,

"Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. The provisions of this chapter applicable to the father and child relationship shall apply as far as practicable." (Current through Public Law 534 of the 2013 Legislative Session)

Typically that interaction must be long term and the interested person must have acted in the same or a substantially similar role as a parent would to the child on a regular and consistent basis. Yet this is merely a guideline. Each set of circumstances is based upon the specific facts of each case. While you might like a "list" of rights if a "de facto" parent relationship is determined, there is no such list.

To give you a better idea of how factually driven cases are, I recommend that you read the case of Rubano v. DiCenzo found at http://www.courts.ri.gov/Courts/SupremeCourt/OpinionsOrders/pdf-files/97-604.pdf in order to understand the complex interrelationship between facts, law, and court decisions.

Many people would like cut and dry answers with respect to their questions, yet there often isn't one that can be universally applied because the law in many cases cannot anticipate all the different factors and situations that can occur in life.  Facts always have a role to play in each case and when those facts are extracted, general answers don't usually exist.  Depending upon the facts of the relationship, the nature of the parties, the mental state of the child, and many other factors, there is nothing to prevent the court from expanding or limiting the role and/or consequently the rights of a de facto parent in each case. 

In some cases a person might think they are a "de facto parent" but the family court justice might disagree.  I recommend reading Rubano v. Dicenzo the case cited and you will understand much better what I mean. In the meantime, depending upon your situation, you might want to take the time to present that facts to an experienced family lawyer to get a better bead on the actual facts in your case and how they might be applied by a judge as well as what you are expecting or hoping for.


Rhode Island is the Children's Home State. Can the Custodian Parent Move out Of State for a Job?

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

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Question: Can the custodian parent move with with children to another state because of a new job if there is a court order stating that Rhode Island is the home state of the children?

Reponse: No. If you have joint legal custody or this would prohibit you from having your scheduled parenting time with your children, then a parent is not supposed to make that unilateral move.  A parent with physical placement of the children must file a Petition for Relocation / To Move Out of State with the Minor Child(ren) in the Rhode Island family court, particularly if Rhode Island is stated in the Court's Order that Rhode Island is the "Home State" of the minor child(ren).

However, some parents do it just the same and file the petition afterward. Of course after the fact it is very hard to expect the court to order the parent to move back into the State of Rhode Island with the children.  However, it is possible.  It is also possible that if the court finds that the move was not in the best interests of the minor child(ren) if the parent makes the move first, it is entirely possible that the family court judge could find that is it in the best interests of the minor child(ren) to be placed with the parent who remained in the State of Rhode Island.

If you suspect that the parent would leave with the minor child(ren) to another state, it is best to be proactive and file an action in the family court with an Ex Parte Motion and supporting affidavit demonstrating why you have the reasonable belief that the custodial parent will take the child(ren) to another state.  It is possible that the Court will issue a Temporary Ex Parte Order based upon your initial Ex Parte Motion if the court doesn't issue an immediate Order prohibiting him or her from moving to another state. 

Typically the Ex Parte Motion asks for immediate emergency relief based upon what you know and represent to the court in your affidavit.  However, there must be an underlying action filed for permanent relief.  Very often the underlying action is a Motion for Change of Placement or a Motion to Preclude the Relocation of the Minor Children Outside the State.  The grounds used are that it is likely to cause "irreparable harm" to the child(ren) based upon their strong psychological relationship and ties with Rhode Island, including the other parent, friends, extended family, church, extracurricular activities, etc. The same grounds might be used, in part, for a change of placement of the children to the non-custodial parent.  You would obviously be asking that an Emergency Order immediately issue until such time as the custodial parent files a motion for the relocation and the matter can be heard on it's merits. This is not something that is easily done. You only get one shot at it and if you blow it you may find that if you are the non-custodial parent that suddenly your children are gone to another state despite your attempts to prevent it. I strongly recommend seeking the assistance of an experienced family law lawyer.

Best of Luck to You!


Repatriation Counseling - Understanding An Old Concept under a Newer Name

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

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Recently in a case I filed a Motion for Repatriation Counseling.  This is a concept I've been familiar with for several years not by virtue of my own reading but by my associations with mental health counselors and therapists.  

In my particular case I learned that the terminology I used was not necessarily "mainstream."  

Though I have been referring to "repatriation counseling" for years it is not known by that name by many therapists, attorneys and judges.

Personally while I was puzzled and a bit disappointed that the court denied my client's motion simply because it looked up the word "repatriation" and found that in Webster's Dictionary the word means "returning or sending one back to one's own country."  Since that definition of "repatriation" wasn't consistent with the more modern meaning as I've known it to be in therapeutic settings the motion fell flat before the court.  I was, in actuality surprised that that court had not heard of "repatriation counseling" between a parent and child.  However, I later discovered that several counselors I knew were not familiar with the concept while others were not.

Repatriation Counseling typically has been counseling for men and women who have returned to their own home country either after having been prisoners of war or having been detained in another country, etc.. but these individuals have needed counseling to be reassociated with their wives and children and vice versa.

However, in more recent years repatriation has been become associated in modern circles specifically with the reunification of a parent and child (and sometimes children) of younger years who have either become alienated or estranged from one another for one reason or another.

In Rhode Island DCYF Motions have Frequently contained the word Repatriation in their motions and yet the concept still remains outside the mainstream because of the older traditional definition of "repatriation."

So, for the time being though the term "Repatriation Counseling" continues to grow as an alternative term for parent-child reunification counseling, I would recommend that people filing motions to reunite a parent and a child (or children) use the word "reunification" instead of "repatriation."  Trust me, it could save you some grief.