Rhode Island Divorce Tips

By:  Christopher A. Pearsall, RI Divorce and Family Court Lawyer*
a.k.a.  The Rhode Island Divorce Coach ℠

I realized 10 years ago that not everyone could afford a lawyer to represent them in court. Sure, there were some organizations that provided volunteer lawyers or lawyers who would take on a Pro Bono case in Rhode Island.  The trouble was that they were quickly saturated with people who wanted a free lawyer for their case.  Yet there wasn't a service that I could find that offered help to individuals so they could represent themselves properly in their own divorces.  So in 2006 I became the Rhode Island Divorce Coach to do just that less than the cost of typical representation.

Recently I was reminded of a few lessons I give people in courtroom decorum.  As lawyers I suppose we treat these things as commonplace or perhaps even common sense.  They aren't common sense to everyone though.  Sometimes, they aren't followed by long time practicing attorneys. 

I've always thought stories are the best teachers so let me give you an example.  Keep in mind that  " . . . " means that someone was trying to continue talking.

The Divorce of Todd McFadden vs. Sarah Jacobsen

Todd McFadden and his wife Sarah Jacobsen were getting divorced.  Todd was the filing party ("Plaintiff").  Sarah was the party served with the initial Rhode Island divorce complaint ("Defendant").  Todd's lawyer filed a Motion for Temporary Orders.  Sarah's lawyer objected to that motion..  Here is how the dialogue went in the courtroom.

JUDGE:  So we're here on Plaintiff's Motion for Temporary Orders, correct counsel?

Todd's Lawyer:  Yes, your Honor.

JUDGE:  Okay counsel, I'll hear from you first.  Then I'll hear from Defendant's counsel.

Todd's Lawyer:  Your honor we are moving for Orders allowing only the Plaintiff to be the one to bring the two minor children to their soccer practices and games.

JUDGE:  Reasoning counsel?

Todd's Lawyer:  The Defendant mother already has a boyfriend only 4 weeks into this divorce.  She has been exposing these minor children to this boyfriend.  She and the boyfriend pick up and drop off the children to their soccer practices and games.  It's our position and hopefully the court's that to prevent confusion or irreparable damage to the children at this delicate time in this family's life that it's in the best interests of the children that the Plaintiff be the one who drops off and/or picks up the children.

JUDGE:  Okay, defendant's counsel may I hear your objection.

Sarah's Lawyer:  Thank you.  My client's objection is that she has always brought the children to their soccer practices and games and to change their routine would be detrimental to the children's routine during the divorce.

JUDGE:  But counsel I'm sure you understand that exposing the minor children to her boyfriend before this case is finished is poor judgment and could damage the children and . . .

Sarah:  He's not my boyfriend. He . . .

Todd:  Judge, he is too her boyfriend!  C'mon Sarah, I've had an investigator following you since before I filed for divorce.

JUDGE:  Counsel, kindly get your client's under control.  They should be aware how we do things in a court of law.

Both Lawyers:  Yes, Judge.

[Each lawyer whispers to their client.]

Judge:  So, we have mom who's always been bringing the children to soccer practices and games routinely but now she's bringing them with an alleged boyfriend who supposedly the Plaintiff can verify with a private detective who has been following them. So I'd . . .

Sarah's Lawyer:  Judge we don't think he's been having her followed at all and . . .

Judge: [Facial Expression at Sarah's lawyer) As I was saying, I'm be inclined to want to keep mom bringing the children for consistency since she's always done it [Todd whispers to his lawyer] yet because of this boyfriend issue . . .

Todd:  What?  But she hasn't....

Todd's Lawyer:  [Putting his hand on Todd's shoulder to silence him.] But judge mom hasn't been routinely . . .

Judge:  [To Todd's Lawyer]: Counsel, was I speaking?  I believe I was and ....

Todd's Lawyer:  Yes Judge, but...

Judge:  That's enough.  I've heard you both.  Plaintiff's Motion is denied.  I'm ordering that the Defendant mother shall continue to bring the minor children to and from their soccer practices and games but she is prohibited from bringing any unrelated person of the opposite sex with her on pickups and drop offs.

Todd's Lawyer:  But . . .

Judge:  Yes.

Todd's Lawyer:  Judge please note my exception to your decision for the record.

Judge:  So noted.

You would be amazed how big some things that seem so small can be so big.  Hopefully you were able to identify the three (3) big lessons in courtroom etiquette that can be learned from this simple little exchange.  After you look at them, see if you can figure out which things made the biggest difference.

1.  Let Counsel Speak for You:  If you've hired a lawyer, then you've hired him or her for a reason.  Lawyers are hired for their expertise in a particular area of law including the manner in which the court should be addressed.  In this case it was divorce and the family court system.  So let the lawyer do what you hired him or her to do.  When you have a lawyer a client who jumps in and speaks directly to the judge without being asked to do so directly by the judge or their lawyer is considered being rude and shows a lack of respect for the court. Whatever your good intentions may be, keep your mouth shut until your lawyer or the judge ask you to address the court, otherwise you are most likely going to hurt your case.  If you look back in the dialogue above, you will see that both Todd and Sarah addressed the judge directly and the judge actually scolded their attorneys and told them to get their client's under control.  They both hurt their cases by not having their attorneys address what needed to be said instead of speaking out of turn without the court's permission.

2.  Don't Speak to the Other Party: Unless the court has requested that there be direct discussion between the two parties while in a court hearing, don't do it!  , then do not directly talk to the other party.  If you were going to directly talk to the other party in the first instance you should not be in court at all and you should have been able to resolve the matter without even being in court.  Once again, this is considered rude and disrespectful to the court, especially when you have hired a lawyer who is responsible for presenting your case to the court.  In this case look at the testimony.  Todd directly addressed Sarah and while the tone isn't evident the wording leads us to believe that he was using a condescending tone.  Todd hurt his case with the judge here and started sending his own motion on a downward spiral.

3.  Don't Interrupt the Judge: When the judge is talking, even if what the judge is saying seems wrong, you do not interrupt the judge.  That is not only rude but it is one of the biggest offenses to a judge and with good reason.  You are before the court asking for something.  If the judge is speaking and you interrupt, then you have now offended the very person that you are asking to give you some relief.  If you were going to ask someone for a short term loan and before you gave them the loan you did something that was a slap in the face to the person, you just decreased the chances of getting that loan by more than 50%.  The same is true for court.  It is a place of respect.  You disrespect the person running your hearing in that court and it's just like a slap in the fact.  Here, after Sarah interrupted the judge, Todd continued the interruption.  Why is that significant?  Because Todd should have had enough time and common sense to mentally process that Sarah had done something wrong that he should not do, namely interrupt the judge.  Yet he not only continued the interruption of the judge, making it longer and wasting the court's time but he also interrupted Sarah and spoke directly to her, neither of which he should have done.  Todd compounded the problem.  If Todd had looked at the judge he might well have caught a cue from the judge's facial expressions or mannerisms that he/she was not happy about it.

Which way to do you think the judge would have ruled if Todd had interrupted the judge and spoke directly to Sarah?  If he had asked his attorney to address the issue and the attorney had done so correctly, what to you thing the result would have been then?

Can you see that the judge seemed to be going in Todd's direction until he and the lawyer opened their mouths in a disrespectful manner to the court?

Do you think Todd's lawyer could have salvaged this motion and won it?

When you are represented by a lawyer in a Rhode Island divorce case or otherwise, take your cues from the lawyer.  It is all too easy to let your emotions get the better of you and make grievous mistakes in etiquette that end up losing you a motion or your entire case.

In my professional opinion, this motion was not lost in this case based on the law, facts or evidence. Todd's motion was lost in this court hearing solely due to disrespect of the court and the presiding judge.

 *Note:  Any resemblance to any real persons or situations currently before the court is merely coincidental and/or accidental.

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

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

QUESTION: 

Can my ex-spouse sign me up to be billed for childcare without my permission?

DETAILS:

My ex and I have an order to split child care 50/50 for her work and education. She has gone and signed me up to be billed directly by the child care provider without my permission. She refuses to provide me her schedule of work and school. But the bills provide no information other than payment amount. 1. Is it legal for her to sign me up for a payment account without my signature?  2. What is my recourse if she decides to use the childcare for personal reasons and they bill me for half?

ANSWER:

Under Rhode Island law, your ex-wife has no legal right to commit you to any payment agreement with the childcare establishment based on the family court order as you describe it.

The answer to your first question is "No."  If she actually signed your name to a contract or to some other document to bind you to payment to the childcare provider without your authority or knowledge, then your ex-wife committed the crime of forgery and she can be prosecuted for that.

The answer to your second question is that your recourse is to take your ex-wife back to family court and file something such as a motion for credit for any monies you paid for one half of whatever time was spent on personal time rather than for work or education. 

You will need to keep in mind that if you take your ex-wife back to court on the motion I suggest above then you will have the burden or proving by clear and convincing evidence that your wife used the child care for strictly personal purposes and that you overpaid as a result and should be entitled to a credit.  You would likely have to prove when it was personal, how you know it was personal and what the personal activity was, how much was charged for that personal usage and how much you were overcharged for that personal usage on each occasion.

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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.

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Atty Chris Pearsall

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

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QUESTION:  My husband left his cell phone (which I pay for and is in my name) open and logged into Facebook. I looked at his phone and saw and recorded (through screen shots) a conversation he was having with another individual. In this conversation, he spoke candidly about matters for which I am currently divorcing him. Can I use this documented conversation in a legal setting or is it inadmissible?

ANSWER:  As any good family law lawyer would (or should) tell you, it depends upon how you present it and which family court judge you have. Technically under the Rules of Evidence it is, at first glance, hearsay and therefore on its face could be considered inadmissible if a judge didn't look deeper and you didn't give a reason for the judge to find it to be admissible.

Generally, you want to find a way to get the records in as an exception to hearsay, or you want to get them in as a business record from your cellphone company.

It's a bit harder than it sounds.  If I were to stick to basics, you could subpoena the records from your  cellphone company and have them certify them or have a person known as the Keeper of the Records appear to testify that they are authentic records.  Then you simply need to have some questions to show the court why the records are relevant in the case and something the judge should hear.  This is a very basic description but essentially that is what it breaks down to in its fundamental elements.

The other way is to find an exception to the hearsay rule.  So you have an out of court statement like the digital conversation that is important to your case somehow and you want the judge to be able to hear it and consider it.  You cannot offer the statement directly to the court to try to prove that what is done or said by the statement is true.  (Actions, statements, and even omissions can be considered statements by the court.)

If you believe your husband is having an affair because of the digital conversation and it has made you a nervous wreck and forced you to get counseling and because of that you think you deserve a greater share of the assets then you can show that they made calls back and forth by the calling records, texting records and yes the digital conversation.  You are not trying to prove that what your husband said in the digital conversation is true.  You are then offering the digital conversation to show that your husband and the woman were communicating frequently in a variety of ways.  It doesn't matter if the conversation says that he is going to meet the woman after work at the Motel 6.  You aren't offering it to prove that they actually did that.  You are offering it to show how frequently they were communicating.  There you go.  It is no longer for its truth, it's offered to show they communicated frequently and that's why you became a nervous wreck.

There are other exceptions but those are another day.

To answer your question.  Yes, if the digital Facebook conversation is important enough and it is relevant to your legal proceedings then you can find a way to make the conversation admissible.  Whether the judge accepts the way you came up with is another story entirely.

It's unfortunate if your Rhode Island Divorce goes to trial.  This probably means that you've made attempts at settlement, perhaps attended a few motion hearings and pre-trials and still didn't reach a resolution.

Now the tendency is to want to start the trial, get on the stand and then just tell your story in whatever way you want to tell it so that the Judge can see your side of things in this Rhode Island divorce and that you will hopefully get a "fair shake".

Can you try to do that in your Rhode Island Divorce proceeding? 

Certainly! 

However, you can also take a shotgun and shoot yourself in the foot but that's not really advisable.

If you have a Rhode Island lawyer who is versed in divorce and family law and has been through Rhode Island divorce matters on multiple occasions, then trust him or her to know what is in your best interests.

The client on the witness stand often does not know that if they try to tell their story and the opposing counsel objects, moves to strike the testimony and gets it stricken that what they have just said . . . is not evidence and other than the judge hearing something that he or she is not supposed to consider in the trial . . . . it is substantially worthless.

In truth, the client with a mindset that he or she can get on the witness stand and just tell everything under the sun about his or her case without being stopped, without it being stricken, and without questions being asked by his or her counsel might just as well try to act "Pro Se" because they are likely to disregard their attorneys' advice, do exactly what they want to do on the witness stand, and sabotage their own case that the attorney has planned out to present in the most favorable fashion.

In a Rhode Island divorce proceeding everything you or a witness has to say is not evidence.  There are rules for evidence which include foundations, personal knowledge, and general assurances of veracity.

If you are a person who wants to tell your story of what happened in your divorce AND you are going to tell it your way regardless of the questions your attorney asks you, then you might as well shoot yourself in the foot and fire your attorney before the trial and go it on your own.

Attorneys do not go through all their schooling for nothing and a divorce trial is subject to rules of procedure and rules of evidence in Rhode Island.

So, all things being equal, if you are not going to listen to your attorney and tell your story your own way rather than answering the questions you are asked, then all you are going to do is completely confuse your attorney, most likely come out with a poor result, and then blame the attorney for your insistence on doing things your way.  If this is going to be the result, save yourself some money and save your attorney the aggravation of trying to get you a successful result when you are most likely hurting your own case.

If you have an attorney, then you should trust him or her to know what to do and to lead you through the trial. You should listen to the questions being asked direct your attention to the answers to those questions and move on.  It's like the hare and the tortoise slow and steady wins the race.

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"™