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Rhode Island's Notice of Automatic Orders in Divorces and Family Law Cases... E-Filing causes timing issue.

Screen Shot 2016-10-08 at 6.15.03 PMBy:  Christopher A. Pearsall, Rhode Island Divorce Lawyer

When you file for divorce in Rhode Island, the Notice of Automatic Orders becomes effective the moment the plaintiff (i.e. the filing party) signs the complaint for divorce.  In most circumstances, this Order's provisions becomes effective for the defendant (i.e. the party being served with divorce papers) once he or she is served with the divorce documents.

So what is the Notice of Automatic Orders?  It is a document printed signed by the Chief Judge of the family court that is included in your Rhode Island divorce documents. More significantly, it is a Rhode Island law.

If you would like to see what it looks like as of the writing of this article you can download it here -> RI_Notice_of_Automatic_Orders

As of the writing of this posting, it is Rhode Island General Laws §15-5-14.1.   The plaintiff is must be aware of and abide by the provisions of the Notice of Automatic Orders at the time he or she signs the Complaint for Divorce.  The defendant is expected to be aware of (and must abide by) the provisions of the Notice of Automatic Orders at the time he or she is served with the document along with the complaint for divorce and the other service documents.

It is extremely important to note that this Notice of Automatic Orders used to be a document that was prepared and included in the filing party's divorce packet.  When it was done in this way it was easy for a plaintiff to be aware of the document.  The plaintiff either had to put it in the packet himself or herself or if the plaintiff hired a lawyer then the lawyer would go over the document with the person at the time the divorce complaint was signed. 

Today documents are e-filed by lawyers and the court creates both the Summons and Notice of Automatic Orders.  If you or your lawyer don't keep this in mind, this new timing issue could cause a problem.

An example illustrates this best.

Daniel is representing himself (i.e. "PRO SE") in his own divorce.  He prepares all of the documents himself including the Complaint for Divorce which he signs before a notary public at a local bank.  He files his divorce complaint and the other supporting documents that constitute his divorce packet with the court.  Two days later Daniel goes to the bank and empties out his joint bank account that he holds with his spouse.  At this point Daniel doesn't have the service packet documents which include the Notice of Automatic Orders that the court now prepares for you.

Daniel calls the court a day later and finds that the service packet of documents to be served on his spouse is ready. Daniel picks it up and has it served on his spouse by a local constable.

Daniel's spouse hires a lawyer and immediately re receives a Motion to Adjudge him in Willful Contempt of the Notice of Automatic Orders because Daniel violated the very first provision which prohibits moving or removing assets and went into effect the moment he signed his divorce complaint before a notary.

Daniel thinks it's easy.  He goes to court and tells the judge that he didn't know about the provision in the Notice of Automatic Orders so how could he abide by them.  He argues that they weren't even prepared by the court until after he had already removed the monies.

The judge is not impressed.  The judge orders Daniel to give his spouse 60% of the money he took out and to pay his spouse's lawyer fees and costs of $750 for having to file the motion and appear at court to argue it and pay his spouse for whatever time may have been lost from work.

Daniel is furious.  He continues to argue that he doesn't think it's fair that he is held to the requirements of a document that he couldn't have known about because it wasn't created yet by the court at the time when he acted.

The judge's response was simple,

"Perhaps you should have hired a lawyer who knows our divorce laws.  The Rhode Island Automatic Orders are in our state's domestic relations laws, our RI Rules of Domestic Relations Procedure, our E-filing Guidelines and the Family Court's Administrative Orders.  Ignorance of our laws is never a defense nor an excuse.  So do not blame the court.  If you are looking for someone to blame here sir, then I suggest you look in a mirror."

Being a good divorce and family law in lawyer in Rhode Island has become more challenging in today's age of technology and everchanging rules.  The RI Rules of Domestic Relations Procedure have been rewritten and revised several times over.  Formal procedures sometimes differ from what the rules indicate and even as an experienced Rhode Island family lawyer it often becomes a challenge.

When you hire a lawyer, make sure that you are shown the Notice of Automatic Orders and that you read them thoroughly before you sign your complaint for divorce under oath.  Don't let any lawyer let you skip it.  A good lawyer will take the time to go over the law that you are held to.  If a lawyer wants you to skip the Notice of Automatic Orders or just tells you to trust him or her and sign on the dotted line, rethink the lawyer you chose. Every good lawyer should take the time to keep you informed for your protection as a client.


Unique Rhode Island Divorce Questions: Avvo Answers Clarified

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By:  Christopher Pearsall, Esquire
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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A person wanted some help and posted to the Avvo website for attorneys to provide assistance.

Three Rhode Island attorneys answered this divorce scenario.  My answer and my comments on their answers are included to show the diversity between attorneys.

Each attorney's disclaimer has been removed since it's irrelevant to the answer and the attorneys are not disclosed here.

QUESTION:  I still use the same address.  Is it more complicated to use this as my legal address or changing to my mother's Massachusetts address?

DETAILS:  We have not been together for many years but have not been able to afford divorce. I can not afford to have my own place and pay the house bills so I stay here and there which sometimes includes the house my family lives in. We would like to have the fast track divorce which looks like it will cost about $1,000.00 and can be done within 21 days of filing. It is uncontested the only deal is we need it documented that when the house sells we split the money if something happened to both of us the house would go to our sons (18 & 20). Thank you for this service.

 

Attorney Christopher A. Pearsall's Answer:

To get divorced in Rhode Island either you OR your spouse MUST be "a continuous resident AND domiciled inhabitant of the State of Rhode Island for the one year immediately before the date you file for divorce in Rhode Island.  It is not about "addresses."  You can get a post office box as an address halfway across the country with a simple telephone call but that is not a place where you have been a "continuous resident" AND "domiciled inhabitant." 

Generally speaking to be a "continuous resident" you must continuously reside (i.e. live) in the State of Rhode Island for the one year period immediately before you file for divorce in this state.  Therefore, if during the one year immediately before you file for divorce you live in Pawtucket, RI for 7 months with your spouse and then rent a place in Newport, RI for two months and then live with a friend of yours for the last three months in Warwick, RI immediately before you file for divorce in Rhode Island, then you would have been a "continuous resident" of Rhode Island for the full 12 months immediately before filing for divorce.  In that case you would have met the first prong of the test.

However, before you can file for divorce in Rhode Island you MUST also meet the second qualification, namely you must be a "domiciled inhabitant" of the State of Rhode Island during that time.  The key here is that you may only have one domicile at any give time.  A "domicile" may be generally thought of as a place that you intend to live in for a particular period of time and you intend to come back to it.  For instance, if you have a house that you have lived with in the year before you file for divorce in the State of Rhode Island and you have lived there with your spouse but things start getting tense with your spouse and you come back to the house occasionally but you rent an apartment in Attleboro, MA to stay in for 4 days out of the week to avoid the tension with your spouse, then there will be an issue as to whether you have been a domiciled inhabitant in the State of Rhode Island.  The idea is that you cannot at any given time have two domiciles.  You may only have one domicile . . . namely where you "really" or "primarily" live and do not intend to leave from at that particular time. 

So, you must be both a continuous resident and have your single domicile be within the State of Rhode Island during that year before you file for divorce. 

Using an address to prove residence with the court to file for divorce simply because it suits your purpose of filing because you get mail there or because that's where your license is still listed is a bad idea. 

First, this is important because when you confirm your address with the court you must do so under oath before a Notary Public.  Therefore, if you lie then you have committed perjury before the court which is a crime.

Second, this is important because even if your divorce is granted.  If it is discovered that you or your spouse did not meet Rhode Island's residency requirement to obtain your divorce, then the divorce may be found to be void.  If that is the case then you are still married.  Imagine if you got remarried and had children!!!  Then all of a sudden your wife is no longer your wife and your children would be deemed illegitimate.  On top of this, if authorities really wanted to press it, you would be guilty of the crime of bigamy.

Ultimately, you don't have a choice to play games with addresses here.  You either meet both criteria and you can file for divorce in Rhode Island, or you don't meet the criteria and you can't file or you have to wait until you do meet the criteria.

It is worth addressing the details that you gave following your question. 

There is one way your divorce will take less time.  That "one way" is if you and your spouse have been separated for a period in excess of three (3) years.

There is an uncontested divorce but there is nothing called a "fast track" divorce.  Also, there is no divorce that you can get in 21 days.

If you have not been separated for more than 3 years, then even if things work like clockwork with the court the fastest you can possibly get your divorce completed is 5 1/2 months if it is uncontested. 

If you have been separated for more than 3 years, then if things work like clockwork with the court the fastest can can usually get your divorce completed is 3 1/2 months if it remains uncontested.

You mention that you have a house that is to be sold and that you need certain provisions.  Whenever there is a house involved you should make sure you have a Property Settlement Agreement that is written and contains all the terms regarding the house and is signed by both you and your spouse under oath before a notary public.  It is never a good idea to have a house involved and NOT to have a written Property Settlement Agreement to present to the court for approval.  If you do not have such a written agreement it is possible that you could have a problem with what is known as the "Statute of Frauds" which essentially requires transactions regarding real estate to be in a signed writing.  A thorough description of the Statute of Frauds is unfortunately too detailed for answering a single question.

You also bring up what you want to happen if you and/or your spouse die.  I'm certain it sounds simple to you to so this, but you then run into not only provisions in your Property Settlement Agreement being added but also taking into consideration whether either of you has a Last Will and Testament and, if not, what the laws are relating to intestacy in the State of Rhode Island (assuming for your question that the property you are talking about is within the State of Rhode Island).

Please be aware that this answer is provided as a courtesy based only on the facts and/or circumstances given and any assumptions I have had to make to try to assist you based on the way you worded your question and the details. 

IMPORTANT NOTE:  This is not legal advice.  Also, this is NOT a substitute for sitting down with an experienced Rhode Island divorce and family law attorney and providing all the facts and circumstances surrounding your case and affording the attorney the opportunity to ask questions which could substantially change any information you may be given.  Never act on any information you find on the internet. The only way to be assured that you receive competent, accurate and comprehensive advice regarding your legal situation is by meeting with a qualified legal practitioner who has the opportunity to fully evaluate your case and ask questions relating to your situation.  The information on this page does not constitute specific legal advice to any person, nor does it create an attorney/client relationship with this attorney.

AVVO.COM OTHER ATTORNEY ANSWERS

Below are the actual answers provided by the attorneys on Avvo.com.   Avvo.com only allowed 3 attorneys to answer the question.  Above is the answer that I wanted to provide but was unable to due to the limited number of attorneys they allow to respond.

1)  Do you notice the difference between my answer and their answers?

2)  Do you notice any mistakes they made when informing the person asking the question?

3)  Do you notice any misunderstandings the person had that they did not take the time do clear up?

 

Answer by Rhode Island Attorney No. 1:

I find this question a bit unclear. You must live in RI for one year if you want to get divorced here. If you want to be legal separated here you must only live in RI for one day. Residency is, in part, a matter of intent.

 

Answer by Rhode Island Attorney No. 2:

Do not lie to the court about which state you live in.

Is the house mortgage on both your names? If so, keep in mind that if the bank can report late and missed payments on both of your credit reports.

 

Answer by Rhode Island Attorney No. 3:
 
This question will best be answered by the attorney you are paying to represent you in your "fast track" or nominal divorce on the grounds of living separate and apart for a period exceeding three (3) years. They might also explain that as long as one of the parties has lived in Rhode Island for one year or more before the filing, you should be able to proceed.
 
 
Before you make a decision about any lawyer you may consider hiring... you need INFORMATION.  Without good solid information and legal advice, how can you even know whether you should consider hiring a lawyer or how to tell whether the lawyer you are considering knows what they are doing? 
 
The answer.... you can't.
 
All Rhode Island Divorce lawyers are not the same. 
 
I'm Attorney Christopher A. Pearsall.  CAP isn't simply my initials.  You see, I've been making a difference by Caring About People like you for over 16 years practicing exclusively Rhode Island Divorce and Family Law.
 
For solid and comprehensive legal advice that you can rely upon.  Call me to set up a lower-cost advice session.  Give me a call at 401-632-6976 . . . you'll be glad you did!

Simple mistake No.1 that you can make when you represent yourself in a Rhode Island Divorce proceeding!

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

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Are you thinking about representing yourself in your own Rhode Island Divorce because your divorce seems so simple or you just don't want to spend the money to hire a lawyer?  If so, you may want to reconsider.  There are literally thousands of simple mistakes that you can make that can cost you much more than either hiring a lawyer.

Gertrude's Simple Mistake

Gertrude and Joseph were getting divorced.  They separated all the property they purchased during their marriage and Joseph agreed that Gertrude could keep the house.  Gertrude and Joseph were both on the deed.  Joseph moved to Arizona and told Gertrude she could have the house and he wasn't coming back for the divorce hearing.  Gertrude went to the divorce hearing and told the judge they had divided everything and that they were each keeping what they had.  So that is what the judge ordered.  Gertrude was happy until she tried to sell the house for a good profit.  Gertrude discovered that she had made a mistake at court and in the way she drafted the documents for the judge to sign.  Gertrude broke down and cried when she went to a lawyer and learned that Joseph was still an owner of the house and that she either had to buy out Joseph's interest in the house or get a deed from Joseph transferring his interest in the property to her. 

When Gertrude met with the lawyer she discovered that all it would have taken was getting Joseph to sign a deed before he left for Arizona or ask the judge to award her the property at the time of the divorce using the specific words the law requires and then give an explanation to the judge that was acceptable to him or her as to why she was asking to be awarded the house.

At that point it was too late for Gertrude to fix.  What would have been a simple thing to do at or before the time of the divorce hearing was now a much bigger issue to fix.  Unfortunately, it cost Gertrude thousands of dollars in attorney's fees to fix her mistake when either representation or a coaching session would have avoided the mistake for much less.

It's too easy to make a simple mistake.  Even lawyers can mistakes and we are subjected to years of training. So imagine how easy it is to make a mistake when you aren't trained in the law and you don't practice it every day.

If there is anything significant at all in your divorce that you want to keep or that you must get right such as a car, house, trust fund, retirement, child placement, visitation, child support, medical coverage, etc... then it is too easy to botch things up.  How do I know?  Because before I was a lawyer or knew anything about divorce and family law I sat right where many people like Gertude (and perhaps you...) might be sitting right now and I botched things up.  Later I was kicking myself and I paid a price greater than a few thousand dollars.  I lost seeing my children.

Make sure you don't victimize yourself by avoiding a good family law lawyer for the sake of a few dollars.  Trust me... it isn't worth it.  Is it a pain to get divorced?  Absolutely.  Can it cost you money you would rather not spend?  Most certainly.  Is it worth it do go through the aggravation of getting a lawyer and spending the money to get things right?  DEFINITELY!

Take the time and money needed to get it done right.  Some things just can't be fixed if you botch them up.

 

 


Affordability Doesn't Come Cheap When Trying to Find a Rhode Island Divorce Lawyer!

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

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There is a huge PRO SE movement going forward in the Rhode island Family Courts.  The court schedules have people representing themselves in their own cases every day.  Beside each listing for those people it says "PRO SE."  The listings used to be few and far between on the Rhode Island divorce and family court calendars but today they are everywhere.

I started wondering why this newer "PRO SE" movement had grown so large when your legal rights relating to your family law matters are so very important such that even one mistake can cause irreparable harm. 

So months ago I began listening to people more intently at court, in my office, and in public commentaries in print and online.  For my result I focused on three (3) questions that might help understand this PRO SE trend on the family court calendars.

QUESTIONS

1)  Is it that all divorce lawyers are viewed as being too expensive? 

2)  Is it that people simply don't have the money to hire a divorce lawyer in any capacity? 

3)  Or could it be that the Rhode Island family court is making divorces easier and people don't see the perils of representing themselves?

The answer related not to one or two of the questions but to all three (3).

The vast majority of people I listened to and considered related mostly to Rhode Island divorces but still I kept my ears open about comments by people talking about lawyers, their consultations with other lawyers, editorials and other materials.  I found that the vast majority of people in the middle class viewed lawyers as being drastically overpaid, expensive and not worth the monies they would be paid and so they would rather go PRO SE and save themselves expensive attorney's fees.

A good many people also believed that representation in a divorce or family law matter was the only option available to them and therefore concluded that since they simply didn't have the money to hire a lawyer to represent them to protect their rights that they were forced to go forward PRO SE and represent themselves.

Lastly, there were quite a few people who didn't want to spend any money on getting divorced and heard through a friend or relative that not only was the court giving out the questions that they should be prepared to answer at the hearing but that the judge's were, in fact, leading them through the divorce and therefore a lawyer was unnecessary.

The reasoning used by most of the people who were part of my private study was interesting but flawed for two reasons. 

First, people need to understand that representation is not the only form of legal assistance available in the Rhode Island legal community.  Coaching in divorce and other areas of law has been around for years.  This is legal assistance that lawyers provide to clients on an "as desired basis" or "as affordable basis" to clients who cannot afford full-service "in court" representation but who must represent themselves due to the cost but still need to know their rights and the proper procedure for asserting those rights. 

The challenge of finding one of these "Coaching" attorneys is that many of them still focus on full-service in-court representations and they do not openly promote their "coaching services" which brings in a small amount of income and a greater level of liability exposure for what they are paid.  As you can imagine then, this is not the focus of many practitioners and this option is often only revealed when a prospective client discloses that he or she cannot afford the full-service representation.  Yet coaching has become a substantial way to exercise your constitutional right to represent yourself, save a considerable amount of money compared to full representation and yet still have access to an experienced lawyer to learn about your legal rights as well as the procedure you can use to press those rights before the court.

Yet coaching and it's affordability doesn't come cheap.  It's price?  It can take substantial time and effort to find an attorney who offers coaching in the area of law that you need assistance with (family law or otherwise) and therefore if you want the affordability it comes at a sacrifice of your time and effort to find such an attorney.

Second, people need to understand that the questions provided by the court in the divorce papers are merely general questions that can relate to many divorces.  They were not created necessarily to help the public but to help the judges by providing a guide that PRO SE people could follow, regardless of whether it was right or not for your divorce.  However, that particular determination is yours to make because you are acting as your own lawyer and the protector of your own rights when you are PRO SE.  The judges may even ask you the questions on that sample sheet.  Litigants look at this as kindly helping them through the process just as they should be going through it.  This presumption is dead wrong.  The judge asks you questions that the judge knows apply to most divorces because the judge needs to make findings of fact and a decision affecting the parties' rights at the end of the hearing.  Without specific content the judge can't make the required findings of fact and the decisions in the case.  The judge's job is to give you your day in court and to clear his or her docket properly and legally of the cases on it.  It is your job to protect your own rights.  The sample questions you are given DO NOT protect your legal rights.  If the judge asks you the sample questions or other questions during the divorce proceeding, this is not designed to protect your legal rights.

It is YOUR JOB and ONLY YOUR JOB to know your rights and to protect them during any divorce or family law proceeding in the Rhode Island Courts.  So, if you represent yourself, PRO SE, and you miss something, forget something, mis-state something, or misunderstand something then you should understand that you should not expect that you should or even can sue the State of Rhode Island or the Judge who presided over your proceeding.

If you want a cheaper or more affordable divorce and you feel up to representing yourself, then by all means you have the constitutional right to do so but you should most assuredly get some coaching from an experienced family law practitioner who offers coaching and can inform you about your rights, the procedures, etc...  Naturally your level of protection and safety in the proceeding relates to the amount of coaching and advice you are willing to engage the attorney for, but it is better than thinking that you know as much as a lawyer who has been doing this for many years and has read the law, or than thinking that the court is already protecting you so you don't need a lawyer at all. 

If you don't know your legal rights in a divorce and how to protect them, you might as well not have them.


Do you really want an Aggressive RI Divorce Lawyer? Do you know what what one is?

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

So many lawyers are advertising that they are "aggressive."  But do you know what an "aggressive lawyer" is and whether that's the kind of lawyer you are looking for.

A good place to start is the definition of "aggressive."  Generally it means "ready or likely to attack or confront."  Is that what you want though?  The fact is that the word aggressive can mean any number of things.  Let me give you a few examples.

 

I had one case against one attorney early on in my practice who not only advertised as being aggressive but also was known to be aggressive.  As we came up to the eve of trial the attorney tried to force a settlement.  In full view and easily within earshot not only of his client but of lots of people in the courthouse corridor he intentionally instigated a loud argument with me although he was the only one being loud and there was no disagreement.  He made it a point to yell at me and call me unprofessional and that he was going to teach me a thing or two in the trial.  His client smiled as though he had got his money's worth as I tried to piece together what I was missing since this was clearly a one-sided attack on me in a public display that made no sense.

I figured it out later.  It was all an act to "look aggressive" so his client would believe he was getting his monies' worth.  In truth it was an act and nothing more.  When all was said and done input from the judge put the matter to bed rather quickly in favor of my client.  What did aggressive get the other lawyer's client . . . nothing!  It was merely an illusion.

In another case I was up against an aggressive lawyer who was calm but used tactics were less than honorable.  The lawyer made filings without giving me notice as required by the Rhode Island Family Court Rules to try to prevent me from protecting my client's interests.  The attorney would also create reasons why he or his client could not be in court without giving me notice as the opposing counsel so I could minimize attorney's fees for my client or lost wages as my client took a day out of work.  The lawyer misrepresented matters before the judge to mislead the court in favor of the lawyer's client.  To say the least the lawyers tactics and "aggressive stature" were less than professional or ethical.  In short, they were underhanded and the types of things that lead to lawyers receiving a bad reputation.

What many clients don't realize is that aggressive need not be offensive, loud and boisterous, insulting, unprofessional, unethical, nor in violation of the Rules of the Family Court which incidentally may be grounds for appeal.  A good aggressive lawyer knows how to strategically use aggressive strategies without making it an "acting show" and without "risking your case by violating the rights of others and causing appealable issues." 

Perhaps one of the most significant things prospective clients need to consider is the fact that your lawyer is a reflection of you.  If your lawyer ticks off, offends or causes a judge in the case to be incensed by the lawyer's behavior, it reflects badly on you as the client. 

Why?  Because the lawyer is there only to represent your interests.  The lawyer will be there on many other cases during his or her career but during the time he or she is there for your case it's as if the lawyer is standing in for you.  If the lawyer represents something, it's as if you said it.  So the lawyer is an extension of you.  If the lawyer does or says something that can damage how you appear or your case before the court then YOU are the one who pays the price, not the lawyer.  It's your life!  No matter how much you are paying your lawyer, your selection of lawyer is critical.

Watch out for aggressive lawyers!  In my personal opinion your lawyer can be aggressive without doing what either of the two lawyers in this article did.  Remember, if the lawyer damages his or her credibility before the court, he or she could very well have damaged your case.

Don't be victimized simply because you selected the wrong lawyer because the advertising sounds good.  Be Smart!  Be informed!

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