Hearings and Trials Feed

Rhode Island Divorce Lawyer | How to Prepare a Motion in Family Court.

Preparing a Motion in a Rhode Island Divorce is simply a matter of following a general formula of elements that the court and the judge will be looking for so that it can be recognized as a motion, identified with the correct case, notify everyone as to what you are seeking and why and let the court judge know that the opposing party has had property notice.

1.  The first element is a basic header.  It includes the name of the  state, the county, and the court in which the matter is pending.  In the family court for Providence Family Court the typical header would appear at the top of your motion and would look like the following:

STATE OF RHODE ISLAND                                                                                   FAMILY COURT
PROVIDENCE, S.C.

Note that the header is in all CAPITAL letters with the state and county flush with the left margin and the name of the court flush with the right hand column.  The S.C. after the county name stands for Sheriff's County.  In some instances you may see S.S. or SS. used which is the older colloquialism for Sheriff's Shire.

2.  The second element that appears under the basic header is the case caption.  The case caption contains the names of the plaintiff above the name of the defendant as well as the case number assigned by the court.  The case caption would appear as follows:

JOHNATHAN SMITH

VS.                                                                             CASE NO. P08-0086                                                                

MARY SMITH

Note that typically the case number is placed from the center typing toward the right margin.

3.  The third and simplest element is the title of the motion which is typed in all CAPITAL letters, centered and often underlined.  For instance, a motion for modification of child support would appear as follows:

                                             

MOTION TO MODIFY CHILD SUPPORT

4.   The fourth element of a Rhode Island Divorce or Family Court motion is the body of the motion which includes your request for relief and the basic reason(s) why the relief should be granted.  The typical body of this motion may be in standard type and paragraph form as follows:

        Now Comes the Plaintiff, Johnathan Smith and moves this Court for an Order modifying his child support obligation in this matter.

        In support of this motion the Plaintiff states that there has been a substantial change in circumstances and/or incomes of the parties since the last time the child support obligation was set.

5.  The fifth element is the closing of the motion which contains the parties name and either the name, address and telephone number of the party or the party's attorney.  It also contains the hearing date for the motion which would be obtained from the clerk of the judge who would be hearing the motion.  It would appear as follows if Johnathan represented himself (Pro Se)

                            JOHNATHAN SMITH
                            PRO SE

                                  ________________________

Johnathan Smith         
15 Mantel Avenue
Coventry, RI 02819
(401) 467-2392

6.  The last element is the certification.  If this is an initial motion and the case has been either closed or inactive (without a pending court date scheduled) then you will have to create summonses and have your spouse served as required by law.   This is a topic beyond this short article posting.   However, what I am referring to here is when a case is active and there is a pending court date in the case that you are filing the motion in, then you must provide a certification that tells the court that you served the opposing party by mail (or more appropriately their attorney if they are represented by one).  It appears below the closing and looks like the following and must be signed by the person doing the mailing (i.e. making the service):

CERTIFICATION

     I certify that on April 15, 2008 I served a copy of this motion by first-class mail upon Mary Smith at 88 Dupont Lane, Providence, RI  02903

                                        _______________________________

For those who must represent themselves in family court it is my hope that this tutorial on motion drafting has been helpful and that the formatting tools used to create this article have not made it appear too disjointed.

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 Lawyer on Divorce Appeal Standards

There are two important standards that laypeople should know, especially if they hire an attorney to protect their interests.

1.  You are not protected so that you can appeal if your attorney does not place your issues "on the record".  In a divorce or family court proceeding issues are "on the record" if they are taken down by the stenographer.  What does this mean?  It means that chambers conferences where the court stenographer is not present and taking down the information discussed in the judge's chambers are not "on the record".  It means that discussions with the judge at the bench in court are not "on the record" unless the judge specifically tells the court stenographer to take down the information.

2.  When you are protected with items that are "on the record", if you have to appeal any particular issue, the Rhode Island Supreme Court has consistently ruled that they will not address an issue that is raised for the first time on appeal.  In other words it wasn't "on the record" . . . and . . . the Rhode Island Supreme Court has also consistently ruled that it will give great deference to the trial judge as the trier of fact (since he or she was the person in the best position to evaluate the demeanor, character and testimony of the witnesses) and the factual findings of the trial judge  will not be disturbed absent some gross inaccuracy.  The trial judge's determinations of law will be upheld unless it is shown on appeal that the trial judge clearly abused his or her discretion when applying the law or the facts to the law.

Every litigant before the Rhode Island Family Court should keep in mind whether they are financially able to appeal issues if the trial judge does not rule their way.  If so, those same litigants should be vigilant that major issues are placed "on the record" and aren't discussed at the bench or behind closed doors in a chamber's conference.  If your attorney doesn't preserve your issues for appeal on the record if you lose, what was the point of beginning the battle to begin with?  Just the chance of winning the very first time?

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 Tip on Legal Custody of Minor Children

Beyond any doubt it is the minor children of any divorce that are of most concern to the court and many times to the attorneys involved in the cases.

As I have heard stated by several Rhode Island Family Court judge's, "it is one of our supreme responsibilities to attend to the protection and safety of the children within our borders".

As an attorney I am an officer of the court and believe that even when representing a parent in a divorce, I am duty bound to be cognizant of what is happening to the minor children placed with either parent.

One aspect in which both the court and the attorneys address this concern for the minors within Rhode Island is for the court to determine the appropriateness of legal custody for one or both parents and for the attorneys and clients/parents to carry that through.

Legal Custody is often confused with physical placement because custody often means "having possession of something". Thankfully once you understand that legal custody does NOT mean where the child physically is, then it is much easier to understand.

Legal Custody is the legal right to have a say when making important decisions about the child, including healthcare, education, religious upbringing, activities and overall wellfare.

Typically there are only two forms of Legal Custody. There is "sole legal custody" in which one person has the only say regarding what happens in these areas of a child's life. Then there is "joint legal custody" in which two people share the responsibility equally for making the decisions in these areas of the child's life.

What happens if the two parent's disagree?

You return to Rhode Island family court and a judge will determine what is in the best interests of the minor child and issue Orders accordingly.

During the course of a divorce, it is common that the parents will agree that they will share joint legal custody of the minor child. The reason that it is not uncommon is that joint legal custody is typically thought to be the natural way of things. If either party wants to seek sole custody of a minor child and deprive the other parent of his or her rights as a legal custodian for the child then it is likely that the parent petitioning for sole legal custody either (1) is bitter and simply wants to hurt the other parent in the divorce, or (2) the parent petitioning for sole legal custody does not understand the concept and the fundamental rights it is asking the court to strip from the other parent, or (3) the parent petitioning for sole legal custody is aware of some conduct, habit, pattern, addiction, or other activity that would render that spouse unsuitable to render important decisions for his or her child.

This is why the question is typically asked of each spouse in a Rhode Island Divorce proceeding "Do you believe that the other spouse is a fit and proper person to share joint legal custody of the child.

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


What is a Motion to Set Earning Capacity in a Rhode Island Divorce?

It's possible to see a Motion to Set an Earning Capacity filed in a Rhode Island Divorce or family law matter.   It is better understood when you consider the context in which it might be used.

Let's say an attorney represents a woman whose husband previously made a high 5 figure income such as $95,000 as upper level management in a software technology company.  Now let's assume that this guy was laid off but after 8 months still doesn't have a job and he and his wife are depleting their savings when the wife who makes about $18,000 a year part-time at the local food mart decides to divorce him.

The wife has been used to support at almost the $100,000 mark.  She's still bringing in $18,000 but he's not bringing in anything and either the market is really difficult to find a job or this fellow is just malingering.

This is the time when you would probably see an attorney for the wife file a Motion to Set an Earning Capacity for her husband.  Typically this would consist of testimony by both the husband and the wife (and possibly third parties) regarding the lifestyle of the parties, the education, health, experience, and earning history of each of them.  A judge might also consider the needs and expenses of each party if they are living separately.

Ultimately, the Rhode Island Family Court judge will determine the credibility of each of the witnesses, determine who is credible and should be believed and who should not and determine what earnings, if any, the person against whom the motion has been filed should be making or is capable of making...thus an Earning Capacity.

Such a motion also occurs when child support is at issue.  Yet the principle behind the motion is to force an individual who isn't pulling his or her weight and is capable of doing much more to either get a job or get a higher paying job or even get two or even three jobs if necessary to meet his or her obligations.

Does it have it's downfalls?  Shortcomings?  Inequities? 

ABSOLUTELY!  I'll discuss those in another upcoming article.

Authored by:

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

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 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 Tips: Inconsistencies Part III

Perhaps one of the more frustrating things that occurs a bit more often than it should is an inconsistency with judges that can be identified as:

3.  Judges can render inconsistent decisions or provide inconsistent direction in a case not only when presented with the same fact pattern but even when presented with the same case!

As an attorney here in Rhode Island who has chosen, for good or for bad, to practice in the area of divorce and family law, this is perhaps the biggest inconsistency to address and/or explain to a client.

I've had the displeasure of being before several judges assigned to cases for my clients.  One month an issue is raised and the court will be wholly in favor of my client.  The next month, the opposing attorney will raise the issue again and the next moment the court will be chastising or scolding my client's conduct though it had already been discussed.

If you want a true challenge, try explaining to a client one month how things went well for his or her case and then in the next month how things took a complete turn around on the same issue.

In point of fact it is ridiculous and it makes it appear as though as the attorney for the client I have botched something up in a big way on an issue that may be very important to the client, when in fact, the Judge has simply been inconsistent in the way in which he manages his or her cases, be it through record keeping, or just taking notes.

However, you see it and whatever you call it, it is inconsistencies that there should be a remedy for and it does an injustice to our citizenry and those who come before our Rhode Island Family Court System.

Authored by:

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

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 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.