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Family Lawyers in RI: Emphasis is needed on Motions for Contempt with Exceptions!

In my opinion, family lawyers in Rhode Island need to do two things for the benefit of their clients. 

First, a good family lawyer needs to distinguish between technical contempt and willful contempt.  The two are fairly easy to distinguish.

Willful contempt occurs when admissible evidence can be proven before the family court judge demonstrating that a party knew of a court order and despite the ability to comply with that order chose not to do so or opted to do something that the party felt was in his or her own best interests or the best interests of his or her family despite an order to the contrary.

Technical contempt occurs when the evidence presented to the court proves that a party subject to an order of the court does not comply with that order because he or she does not have the means or the power to comply with the courts order. 

It is the nature of the non-compliance that designates what type of contempt it is.  Does  the person have the ability to comply with the Order or not?  If the person has the ability to comply with the Family Court Order but does not do so then the contempt is likely to be found to be willful.  If the person accused of the contempt did not have the ability to comply with the order as a result of circumstances outside his or her control then the Order should normally be one of technical contempt.

The distinction is more than nominal.  The distinction is often very significant as is the manner in which your Rhode Island Attorney deals with it.  In most cases, clients will not know, understand or appreciate the distinction between these types of contempt and how they may be viewed by the court.;

In cases of willful contempt, the court is more likely to award attorneys' fees to the prevailing party if in the court's discretion such an award is warranted.  In cases of technical contempt, awards of attorneys' fees are rare.  In some instances if it appears clear to the judge that the party pressing the contempt motion was aware it was a technical contempt, the judge may be upset with counsel for wasting the court's time or may be upset with the attorney's client if it becomes clear from the evidence presented that the party pressed this motion knowing it was merely a technical violation and did not create a risk of harm that the Order was designed to protect.

In most cases I believe it appropriate to identify for the client the pros and the cons of proceeding with a motion for contempt when it may be seen by the court as purely technical.  Insistent clients who try to force their counsel to proceed on a matter that may damage the client's credibility with the court and perhaps damage their attorney's reputation for the remainder of the case are best read the riot act and the consequences clearly explained to them.  An outright refusal of an attorney to proceed under such circumstances is understandable and justified, though many attorneys will not do so for risk of losing the client's business.

In the end, despite the good judgment of counsel, sometimes clients need to give direction to their counsel, have their day in court, and take their lumps before they catch on to the fact that their attorney may know best what to do in a particular situation as a result of his or her experience and expertise.

Authored By:

  Christopher A. Pearsall
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70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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Rhode Island Divorce: What are Case Management Conferences?

In the Rhode Island family courts a divorce may run on one of two tracks the "Nominal" or Uncontested Track and the Contested Track.

This brief article on Rhode Island divorces addresses what are known as Case Management Conferences which only occur on the Contested Track Calendar.

What is a Case Management Conference?

Answer:  A Case Management Conference (often referred to by Rhode Island Divorce attorneys as a "CMC") is the first opportunity or meeting on the Contested Track Divorce Calendar in which the attorneys for the parties meet with the judge.  Usually this meeting takes place in the Judge's chambers.  The meeting often consists of the Judge identifying who represents the husband and who represents the wife.  The judge will often expect the attorneys disclose information that will help the judge guide the attorneys on how various issues in your particular situation might be viewed by the court even based on the limited information that may be provided to the Judge. 

I say "limited information" because the judge must keep his calendar moving and only so much time may be reasonably allocated for each conference otherwise other parties will not be heard at all and the court calender will become backed up further if the parties scheduled to have conferences or hearings on the date of your Case Management Conference are not heard.  Everyone has a story they want to be told in the Rhode Island Family Court, but often times there is not enough time in Case Management Conference for the attorneys to tell each parties' story in full.  Therefore the attorneys and the judge must stick to the fundamentals.

The judge is likely to want to know the following:

[Exerpt] 

To read the exciting conclusion of this Rhode Island divorce article click the link below:

AttorneyPearsall.com

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: Guardian Ad Litems for Adults

Authored By: Attorney Christopher A. Pearsall, "The Rhode Island Divorce Coach" 

Appointing a guardian ad litem for adults in Rhode Island divorce cases isn't very common but it does occur.  Typically a guardian ad litem is an attorney (though the guidelines have changed recently to include non-lawyers particularly experienced and trained in dealing with people and issues requiring a guardian's skills) appointed by the court to represent the "best interests" of the individual and to make recommendations to the court as to what is in the person's best interests.

Now I put "best interests" in quotes because it is significantly different from simply representing the individual.

When an attorney or other person represents an individual they generally speak for that individual and advocate for exactly what that person wants.  That is not what a guardian ad litem does. 

Using appropriate factors the guardian ad litem uses his or her judgment to review he circumstances, speak with the individual, look at the case, review pertinent caselaw, perhaps even review medical records and ultimately recommend to the court what should be done in the "best interests" of the person that they are appointed to be the guardian for.  This is true even if the recommendations to the court are entirely contrary to what the individual wants done.

Thus, if John and Sarah are in a divorce and Sarah has a multiple personality disorder and goes back and forth between wanting one day of visitation with her children per week or 2 overnights and 3 full weekends per month for her visitation then the court might determine that Sarah, even with the assistance of her lawyer might not be in a correct state of mind to make the best decision for herself and for her children.

As a result, a judge may order that either Sarah, her children or both... have Guardian Ad Litems appointed for that proceeding.

Assume for a moment that Sarah has a guardian appointed and that the guardian for Sarah, after reviewing all the evidence in her Rhode Island divorce case, her medical records, etc.... that it would,  in fact, be best that she see her children more often, yet the guardian finds that Sarah has not been taking her prescribed medication to keep her condition under control and has missed over half of her counseling appointments.

Sarah's guardian ad litem may recommend to the court that Sarah have only one visit per week with her children until she shows that she can take her medicine and attend counseling on a regular basis to promote Sarah to make more progress for herself and for the benefit of a healthier relationship with her children.  This could very well be against Sarah's outrage and protests.

It is important to understand that in a Rhode Island Divorce proceeding, a Guardian Ad Litem represents the best interests of the person they are appointed to serve.  This does not mean they serve at the whim of the client or that they must do what the person they are appointed to represent controls their actions or the position they take.

A lawyer represents the client's interests and follows the client's directions within the reasonable direction of the client.

A guardian ad litem appointed by the court (or ever privately) represents the "best interests" of the person (s) they are appointed for, even if their advice, recommendation or counsel to the court is against the wishes of the person they have been appointed to represent.

"All My Best to You on Your Journey Through The RI Family Court"


Rhode Island Divorce Tip: On Judicial Bias

Rhode Island Divorces are hard enough without judicial bias.  Judicial bias is when a judge or magistrate in the position to make a decision in your Rhode Island Divorce listens more to one parties' position than the other parties' position and gives that position unjust weight in the decision making process.

It happens.  It's no mystery.  Judges and magistrates are people.  They are not machines.  While they are set on the course of impartiality as part of their duty, you cannot strip the humanity out of them. 

Naturally, with that humanity comes all the personal experiences, thought processes, underlying suppositions, precepts and all the other things that go into the formation of the human person, including biases.

I don't envy Judge's and Magistrates.  They are supposed to remain detached from each situation and try to make consistent decisions from case to case.  Yet, how can they when they have their own belief systems and their own ideas about the way families should be have, visitation should be conducted, the child support system and more.

Judicial bias exists on a practical level on a daily basis.  In a Rhode Island Divorce  System comprised of human beings how could some bias NOT exist?  It just isn't reasonably possible.

Its when Judicial Bias overshadows a case to the extent that prejudice is caused to a a person's case. 

It occurs! In fact, there seem to be some warning signs that one could look for to gauge the level of bias.

Ask yourself this:

1)  Is the Judge or Magistrate for my divorce matter giving me equal time to speak as compared to the opposing party?

2)  Is the Judge or Magistrate for my divorce case allowing the opposing party to enter all his or her exhibits and shutting you down when you attempt to do the same thing?

3)  Does the judge's demeanor or tone change when he or she addresses you as compared to the other party?

4)  When liberties are given by the Judge, are they extended only to the other party and denied to you client?

5)  Does the Judge seem friendlier to the opposing attorney as opposed to your attorney or you?

Judicial Bias Exists!  You MUST be aware of it!  It is an inherent part of the system!  Some of the biases are small and others are large. 

So how can you protect yourself.  Know the Judges.  Ask around.  Learn about the judges.  Sit in court, watch and listen to each judge and how he or she handles cases.

Knowledge is the key.

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.


Costs in a Rhode Island Divorce Case? What costs and expenses should your Rhode Island lawyer make you aware of?

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

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To file a Rhode Island Divorce Complaint you need to pay to the State of Rhode Island a standard filing fee of $120.00 for the opening and administration costs of your divorce case.

To serve a divorce complaint you must obtain (or rather retain) a county sheriff or constable who is authorized to make service upon parties in family court matters and have the complaint and any attachments served upon your spouse if you are the party filing for divorce.  Constables typically charge $45.00 for a standard service of a complaint and it's attachments.  The county sheriff may charge anywhere from $35 to $55 in Rhode Island for the same service depending upon the number of attempts the sheriff's office needs to make in order to serve the person.

You should note that either the constable or the county sheriff may charge additional fees for service of process that requires numerous attempts, requires extensive travel or requires the service of additional documents that are not part of each and every divorce proceeding.

During your divorce it may be necessary to obtain documents by use of a subpoena.  The service costs of a subpoena are similar to those for the divorce complaint mentioned above except that the witness being subpoenaed will have to be paid a statutory fee for attendance as well as round-trip mileage costs for his, her or its attendance at court.  Because Rhode Island is a small state you can plan that the subpoena fees (exclusive of the constable or sheriff's fees) will not exceed $15.00 for a single day's attendance.

If documents are required from a business establishment, usually a bank, then the bank is allowed to charge a reasonable fee for the copying and research of account documents that are required to be produced.  This bill from the bank can range from $0 to hundreds if not thousands of dollars if you have a multi-million dollar marital estate and neither party can provide a clear financial picture of what is going on.  Clients are best to anticipate that a comprehensive bank subpoena for documents may run as high as $200.00.

If an expert is needed for tax issues, home valuations or business valuations, do not expect to get the expertise of these professionals for free even if they have done work for you after being paid a fee.  Unless specifically stated in your agreement with any expert, his or her professional expertise and time is not paid for if he has to go to court.  Experts attending court or preparing for a court proceeding are entitled to be compensated for their services.  These  experts generally cost from $2,000 on the lower end to tens of thousands on the high end for extensive work.  Generally speaking most divorces that involve a house as a marital asset will require an appraisal at current rates (currently about $300).  Testimony at court by the appraiser will generally run about $1,500 per day for a decent appraiser.

Clients should also expect that if matters need to be handled in an expedited fashion or if voluminous documents need to be copied or produced to someone that these are costs the client will be expected to pay for.  These things are, unfortunately, case specific and therefore there is no way to approximate them.

Lastly, if there is a pension or retirement plan that needs to be divided by virtue of a Qualified Domestic Relations Order, the client should expect that most divorce attorneys will engage a specialist attorney to prepare this document.  Qualified Domestic Relations Orders are a document that divides a pension or retirement between the parties either as agreed to or as determined by a judge after trial. However, these Orders must not only comport with state and federal law but must also be acceptable to and approved by the benefits coordinator for the administrator of the pension and/or retirement vehicle and in accordance with the rules, regulations and documents governing the plan. 

Combine the foregoing factors with a client's long-term tax and retirement planning and you end up with a very technical and rather intricate document that people will be relying upon in the future for the benefits they are entitled to.  The Order, therefore, must be so specialized as to fall within the parameters of all of these various guidelines, rules and statutes and take into account the Client's future needs and desires.  This being the case it is not hard to understand why this is not a task that some divorce attorneys choose to undertake.

There are several attorneys whose practices are focused almost exclusively on the creation of these Qualified Domestic Relations Orders (QDROs).  QDROs are a specialty item and are generally prepared by attorneys who specialize in such orders.  Absent express agreement with your attorney that the cost of one or more QDRO's will be included in the monies you provide to the attorney for a retainer and expenses in your divorce, you should NOT expect that your divorce lawyer will be arranging your QDRO for free. 

QDRO preparation is an additional expense that every client dealing with a pension or retirement plan that may have to be split in their divorce should expect. A decent attorney will prepare a QDRO for between $450 to $600 and insure it is approved by the pension and/or retirement plan administrator.

Absent other significant aspects such as a business valuation, the foregoing are the consistent costs that most lawyers will make you aware of in your Rhode Island Divorce and/or family law proceeding and they are foreseeable although not always predictable at the outset of any case.

The challenge?  Be aware of these costs but be knowledgeable that they do not exist in every case but could still occur in yours.  An attorney's expectation and/or prediction about what you may reasonably expect in the way of costs and expenses in your case should NEVER be taken as a guarantee that your costs and/or expenses will be limited to those representations.  Unless your attorney makes a written guarantee about the amount of expenses and/or costs you will have to bear, you should hope for the best but plan for the worst financially.

A good attorney will try to avoid unnecessary costs if at all possible but not at the risk of your legal rights or at the risk that you might claim that he or she committed malpractice by not insisting that an expense be made.  Those of us who try to resolve matters without the additional costs and puffery of attorneys who prefer to bill their client for "unnecessaries" to get a few thousand dollars in fees before the case ends continue to combat those who needlessly bill clients, but keep in mind there aren't as many of us out there who are truly fighting for the clients.  We're hard to find but you'll see us if you take your time and look closely.

I invite you to consider having a low cost consultation with me to discuss your divorce and/or family law matter.  If nothing else, I can guarantee that you will understand your rights and the family court process much better by the time we are done our meeting so that you can make an informed choice about what can and perhaps will happen in your divorce situation.