Orders and Decisions Feed

Rhode Island Divorce - When are the Court's Automatic Orders Binding!

Once you sign your Rhode Island Divorce Complaint . . . you are bound!  What do I mean, right?

Under the Rhode Island General Laws, the Chief Justice of the Rhode Island Family Court, Jeremiah S. Jeremiah, has set in place Automatic Orders of the family court that apply to all divorce cases.  These Orders carry the full weight and authority of the law and the Rhode Island Family Court just as if they were generated as the result of a hearing before the court. 

The purpose of these Automatic Orders is to preserve the "status quo" between the parties until the Rhode Island Family Court Judge assigned to the matter orders otherwise.  This essentially prevents the parties from "tampering" with finances, insurances, etc. . . which may place the other spouse at a disadvantage if things do not remain as the parties have historically maintained them.

For instance, the Automatic Orders would prohibit a spouse from removing the other spouse from his or her health insurance coverage from the moment the Automatic Orders are in effect for him or her.

The question then that is most crucial when considering the Automatic Orders of the Court is this . . "When do these Automatic Orders take effect?"

For the plaintiff, petitioner or filing party, the Automatic Orders of the Court are binding as soon as you sign the Complaint for Divorce.  For the spouse who is to be served, the Automatic Orders  are binding at the very moment they are served by a sheriff or constable.

As will be seen in another blog article posting, in a Rhode Island Divorce there is more to the Automatic Orders than meets the eye.  Rule of Thumb . . . when in doubt leave everything as it has been in the past.  Don't sell property.  Don't change insurances.  Don't make substantial additional charges on your credit cards.  In a nutshell . . . . don't play games or a judge just might find that your actions merit a quick trip to the ACI for a few days.
 

All my Best to All Who Go Before the Rhode Island Family Court,

Attorney Christopher A. Pearsall aka "The Rhode Island Divorce Coach"


New Family Court Administrative Order 2012-2 Effective June 4, 2012

Rhode Island Lawyers and Pro Se Individual's Take Notice
 

Effective June 4, 2012 all Decisions/Orders/Decisions Pending Entry of Final Judgment and Final Judgments filed in the Rhode Island Family Court System must be typed or typewritten as those created by a computer or word processor system before being signed by the Chief Judge / Judge or Magistrate.


Attorney Christopher Pearsall on Rhode Island Orders by Agreement!

In Rhode Island Divorce and Family Court matters it is often said that a court speaks through its "Orders".  This is truer than most laypeople might like to believe.  However, with the ever growing caseload in the Rhode Island Family Court system, judges cannot reasonably be expected to remember every case that is handed to him or her on the bench.  Typically a judge may look at his or her notes and review the Orders in the case to see what was previously Ordered and refresh his or her recollection of events that may have already come before him or her previously.

For a better understanding of how a court proceeding may operate, an "Order" is typically signed by the judge presiding over the case or controversy at hand and is usually related to one or more issues in the case but does not necessarily finalize a case unless the case was a single issue such as a Motion to Modify Child Support.  In that type of case an Order typically ends the issues and closes the case.

A "Decision", "Final Decree" or "Final Judgment" symbolizes the end of a case and the Judge's final decision usually in a case that has been heard on its merits.  These documents are essentially, elevated Orders but they have sufficient finality such that they carry a greater status and are, generally speaking, subject to review or appeal to a higher court if a party disagrees with them.

With that said, let's look at Orders once again.  An Order instructs one or more of the parties involved in the case, or the parties' attorneys, to take a particular action or actions or the Order otherwise prohibits them from doing certain things related to the case.

Orders may arise in several ways.   An Order may be made by a Judge after oral argument in open court by the parties or their attorneys. An Order may likewise be made after a hearing on the merits in which testimony is taken, arguments are made and the court is called upon to render an Order based upon the evidence presented.  Finally, an Order may be made by the "agreement of the parties" in which the parties agree to the terms or an Order that may enter either with or without the assistance of the court.

An Order by Agreement of the Parties is, and should be, of particular interest to litigants either in a Rhode Island Divorce Proceeding or in any other family court matter.  This Order typically originates by one of three processes. 

First, it may result from an "in chambers conference' or a "bench conference" with the judge and with counsel for both sides agreeing to particular provisions or terms of an Order after discussion with the judge thereby binding their client to the result.

Second, an order may result from a hearing after oral argument and/or testimony upon the record of the court (that is... taken down by the court stenographer) with the Judge issuing an order relative to the matter presented to the court.

Third, an order may result from both parties and/or their attorneys reaching an agreement as to what terms are acceptable to both of them and the agreement of the parties is presented in the form of an Order for the Judge to sign and occasionally for the parties to sign.

If you look back at the orders that are entered by the "agreement of the parties" either through the parties themselves or after being bound by their attorneys, those Orders have been referred to in case law as "Consent Orders."

Now you may be wondering what this means to you, right?  While judge's, and many attorneys might wish to simply treat these orders as Orders of the Court, meaning . . . . the Judge signed it . . . so you do it, yet that is not supposed to be true in many cases. 

In the case of Waters vs. McGee, 877 A.2d 658 (2003), the Rhode Island Supreme Court indicated that although the court gives its "imprimatur" or "seal of approval" to the agreement between the parties, an Order that is by agreement of the parties and is simply approved by the court is to be treated as a contract between the parties and it should be treated as such by the courts.

This is significantly different from much of the court practice today and both attorneys and laypeople who are faced with issues in Consent Orders (those Orders by agreement of the parties) should be aware of the Waters case.  It is a case that specifies how Consent Orders are to be treated and judges, attorneys and laypeople need to know about it.

One brief example will show you the significance.  Mom, Katrina, enters into an order by agreement with her ex-husband, Glenn that their oldest child Liza may go and live with Glenn for a period of 3 months because the daughter, Liza would like to try living with her father. During the 3 month period however, the relationship between Liza and her mother degrades to an almost irreparable level and the child is out of control without any discipline because of Glenn's manipulation of Liza and his girlfriend twisting things against the mother.

The Mother, Katrina, files a Motion for Return of the Minor Child to her care as a result of the circumstances and pursuant to the ruling in Waters vs. Magee.  The judge however has ordered counseling and for reasons unknown to Katrina the judge unilaterally orders the child to remain with the father without making any findings of fact.

Though in this instance the argument did not prevail, it is likely that it should have prevailed.  The more this argument is used, the more likely it will be respected in the future by judges based upon the Rhode Island Supreme Court ruling in Waters v. Magee.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.


Rhode Island Divorce Tip: Check with Your Attorney!

For those who haven't been in a Rhode Island Divorce before or who have ignored the single sheet of paper in the Complaint and Service packet called the "Automatic Orders" it's a pretty good idea to check with your attorney before you take any major actions or make any major moves in your divorce.

Though the Automatic Orders of the Court are fairly narrow in scope, it is certainly possible to violate them unknowingly.

For instance you might have a car that is up for sale at the time the constable has your papers to serve your spouse with.  You sell the car and spend the money before your spouse is served. 

Congratulations, you have just violated the Automatic Orders of the Court.  It may be a minor thing conceptually but depending upon the value of the car, the court might see it as a big thing because as the filing party you were bound not to sell any assets at the time you signed your Divorce Complaint.

Rule of Thumb!  Before you do anything in a divorce proceeding make sure you are familiar with the Automatic Orders and keep in mind their underlying purpose. . . to preserve the status quo.

It's never a good idea to start off your divorce on the wrong foot by violating the court's Automatic Orders.

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

Rhode Island Divorce - Child Support does not pay Mothers for Visitation

As a Rhode Island lawyer focusing my practice in the areas of divorce and family law there is something I here quite frequently from fathers who are seeking representation for their Rhode Island child support issues.  It can be summed up in one statement that I hear repeated often,

"I shouldn't have to pay all this child support to her when I don't even get my visitation."

Child support and visitation for Rhode Island fathers are separate and distinct issues.  When you pay child support as the father of a child you are paying what the Rhode Island family court has deemed is your fair share for the needs of your child.  These things include food, clothing, shelter, child care, medical needs, basic necessities, etc.

Fathers need to understand that regardless of whether they get their visitation or not through the mother of the child, that you are not paying for visitation.  The two issues are separate and distinct.

Child support is not something that a father may, or should, withhold simply because he is not getting his visitation.  While it is logically understandable from a father's point of view because it may be the only "leverage" the father can think of to create compliance with his visitation rights, it can have drastic consequences.

A father who withholds court ordered child support in order to force his wife, ex-spouse or the mother of his child(ren) to comply with visitation, may quickly find that he is found in contempt by the court and held at the ACI until he complies with the court's order.

If the mother of your child(ren) is not complying with a visitation order, it is never advisable to withhold child support.  A father who is denied his court ordered visitation is, generally speaking better off filing a Motion to Adjudge the mother in contempt for denial of his visitation rights.

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