Marital Settlement Agreements Feed

Why the paperwork in a Rhode Island divorce or separation proceeding is more than just "filling in a form."

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

You believe your family court proceeding divorcing you from your spouse is straightforward.  You've talked to your spouse and think you have worked out all the major issues.  However, you are a bit apprehensive since you don't know the legal process, so you look into hiring a lawyer.  You meet with a few lawyers and the cheapest one you can find will charge you $2,000 for an uncontested proceeding.

You don't believe it should cost that much money "just to fill out paperwork" when you and your wife are amicable.  So you decide you are going to do it yourself and save the money.  You go to the closest family court in Rhode Island and an assistant court clerk hands you a packet of divorce/separation documents and informs you that you need to return with them completely filled out along with payment of the filing fee.

You get home and look over the documents. You look at the Complaint form.  It provides has a box to check off for the type of proceeding and you must check one.  It gives you two options.

[] - Complaint for Divorce  [] - Complaint for Divorce from Bed and Board

Do you know what the difference is?  Does checking off one box give you different rights than checking off the other box?  Is the result in the legal proceeding different if you check off one box compared to the other box?  If you check the wrong box when you file this document, are you allowed to change to the other legal proceeding if you make a mistake, or do you have to start over and refile all the papers and pay a new filing fee, etc.?

This is one small example why the paperwork is not "just filling out forms."  Ultimately, if it is just a matter of filling out forms then anyone could do it.  You wouldn't need to be a lawyer.  You wouldn't need a law degree.  You wouldn't need to know the law. It would simply be common sense or you would simply know the answer or the answer wouldn't have any detrimental consequences to you.

Looking further just at the Complaint for you see two boxes one labeled "Plaintiff" and the other "Defendant."  You know that the Plaintiff is the party who files the documents and that you will be doing the filing so you know that your name should be placed in the Plaintiff box and your spouse's name will be placed in the Defendant's box.   Then you question yourself.  Does it make a difference who is the Plaintiff in the case?  Does it make the case harder or easier if one spouse files as opposed to another?  You don't know so you continue with the documents.

It asks you to check a box for the proper county family court that the divorce matter is to be heard in.  You live in Kent County and your spouse lives in Providence County.  Which family court do you file in?  Kent County Family Court or Providence/Bristol County Family Court?  Must you file in one Kent County or Providence/Bristol County?  Can you file in either county? Does it make a difference where you file?  If you file in the wrong county do you have to restart the process and re-file the proceeding in the correct family court and pay a new filing fee?  You select your county and move to the first numbered paragraph in the complaint.

In Paragraph Number 1 of the Complaint it states,

"1.  The Plaintiff, _______________________________, of __________________________ (city or town), in the County of __________________________, states that the Plaintiff has been a domiciled inhabitant of Rhode Island and has resided therein for more than one (1) year next before filing this Complaint and is now a domiciled inhabitant of Rhode Island."

It seems fairly straight-forward to put in your name as the Plaintiff and then the name of the city and then the county you live in. However, what if you haven't been a continuous resident in the State of Rhode Island for at least 1 year before filing of this complaint?  Can you still file for divorce?  What if you haven't been a resident in your current county within the state?  Can you still file for divorce in that county?

In Paragraph Number 2 of the Complaint it states,

"2. Upon information and belief, the Defendant resides in the city or town of __________________________ in the State of __________________________ and has resided in that state for _____ years next before filing this Complaint."

Once again it seems straight-forward enough.  You fill in the town and state where your spouse lives and state how many years your spouse has lived in that state before filing this complaint.  Does it matter how long your wife lived in Rhode Island before you filed the complaint?  

Let's assume that you know that because things are amicable between you and your spouse that the grounds for the proceeding are irreconcilable differences that have caused the irremediable breakdown of the marriage.  Let's also assume that you get to the end of the Complaint document and it says that you are asking for a judgment of divorce AND ....

What do you ask for?  Do you know what things you can ask for?  Do you know if there are any things that you must ask for otherwise they might be permanently waived?  If you forget to ask for something do you lose your right to ask for that particular thing in the future? Do you ask for specifics such as the car you drive?  Or do you just ask the court to generally split everything 50/50 if that is what you and your spouse have talked about?  Do you know if Rhode Island is a 50/50 division state or what the legal standard is for property division in Rhode Island?  Does anything happen if you ask for something you aren't legally entitled to even if your spouse has said he or she will agree to it?  How do you word what you will ask for in the divorce so that nothing is missed?

The Complaint is only one of numerous documents that must be filed throughout a divorce case.  The purpose of this article is merely to demonstrate why lawyers don't "just fill in forms".  The forms provided by the court are as close as you can get to a one size fits all document.  Regrettably, it does not fit all cases and, in fact may not fit most cases.  As lawyers we know that we have to be fluid with the form and modify it where the factual circumstances do not fit within the form.

It is certainly true that we as attorneys prepare legal documents and fill in forms, but it is not merely blindly filling in forms because of any general information we have.  As divorce and family law attorneys we do much more than that.  

As you will note from the questions above, we know the difference between a Complaint for Divorce and a Complaint for a Divorce from Bed and Board and that the results are legally different and that each is normally pursued for very different reasons.  We also know that it sometimes makes a significant difference as to which party is the filing party (the "Plaintiff") based on factors such as (1) who wants the divorce and who does not, (2) who is local and who is not, (3) which county each party resides in if both the parties reside in Rhode Island, (4) which spouse has more time to give to the divorce to attend to the filing issues, (5) whether the other spouse plans to get a lawyer or not, and on occasion (6) who the judge is that might hear the case.

As lawyers, when we meet with client's and make sure the complaint complies with the law, we know when and where to modify it and which court has both the proper jurisdiction and proper venue to hear the case so that a case is not filed in the wrong jurisdiction or county.  Mistakes such as these can cause you issues or concerns or cost additional monies and time for re-filing.

When we approach the complaints we have created or prepare to fill-in and/or modify the documents provided by the court we know that the first two paragraphs are not merely filling in the blanks.  Those paragraphs tell the court about the parties and whether or not the court has jurisdiction over them so the case can be properly heard.  Simply filling in the first two paragraphs does not insure jurisdiction unless one of the spouses meets Rhode Island's statutory requirements for residency.   Therefore, what appear to be simple questions about where the spouses live are actually crucial.  Your answers may or or may not establish jurisdiction to invoke the family court's power to grant you a divorce.  Without the knowledge of whether or not what you are filling in for your residency is both accurate and triggers the court's jurisdiction could cause you a lot of wasted time if the court does not have the power to grant your type of divorce.

In the case of grounds for divorce, we have assumed it's amicable and that you would know that the preferred grounds in such cases is "irreconcilable differences that have caused the irremediable breakdown of the marriage."   This is referred to as a "no fault" grounds for divorce.   However, experienced divorce lawyers know that it is possible to plead more than one grounds in order to protect your client, including both a fault and non-fault (i.e. infidelity) grounds.  Family court lawyers who practice divorce know that there are actually eight (8) fault grounds for divorce and two non-fault grounds for divorce including living separate and apart for a space of time in excess of three (3) years.

Each aspect of the paperwork that is completed by attorneys in any divorce proceeding is done with the knowledge of the law and the court system.  Without this legal knowledge saying a lawyer just "fills in some forms" ignores the fact that each paragraph has legal significance and that if you fill it in incorrectly or fail to modify the court's "blanket form" in a way that complies with the law but still allows your divorce to be processed may cost you time, money or worse yet your legal rights. 

Here is a common example of a person who does not understand their case or what an attorney does.

Last week I received a call from an individual claiming she had an easy divorce .  She said it was uncontested and all worked out with her spouse.  I gave her a quote for an uncontested divorce as long as it remained uncontested and based on her representation had she it all worked out with her spouse.  She took issue with the quote I gave her claiming that it was easy to get married and since they had agreed on everything she didn't think it should cost more than $1,000 "just to fill in a few forms." 

I chose to ask a few questions and this is what I learned.

1.  The spouses hadn't spoken in almost a year and had no written agreement regarding how they wanted to divide their assets. 

2.  She lived in Rhode Island.  Her spouse lived in another country.  It was clear that research would need to be done to see if lawful service in the foreign country could be made on the spouse in accordance with the Hague Convention to ensure that the Rhode Island family court could obtain jurisdiction with allowable service in the foreign country.

3.  The woman's spouse had no intention of coming back to Rhode Island and did not want to  respond to the divorce proceeding.

4.  The foreign spouse had an affair but the local spouse didn't want to bring it up unless the agreement (which didn't seem to exist) fell through. 

5.  Both spouse's expected to simply sign a settlement document ad have the court sign off on it without testimony.  She was not aware the court has the power to approve or deny settlement agreements but only after testimony by the parties.

6.  The foreign spouse did not speak english and would require an interpreter.

7.  Since they expected a signed agreement the court would have to give permission for the foreign spouse to testify telephonically.

8.  It was not a short marriage and involved five (5) pieces of real estate in two (2) different countries.  There were also retirement accounts, bank accounts and personal property all of which were held in two (2) difference countries and were at least partially marital assets.  

In short, the court's form didn't apply and would have to be modified.  However modification could not occur until the issue of service of process had been researched.  Once service was researched, jurisdiction had to be confirmed for the proper location based upon whether legal service was allowed and in what form based on the Hague Convention and the laws of the foreign country.  Assuming Rhode Island had jurisdiction and service could effectively be performed, a concrete settlement agreement would have to be created for the parties not only because it involved real estate and assets in different countries but because the matter was likely to go before a judge that would not approve a verbal agreement between a bilingual individual and foreign spouse who required a translator. 

Based on what I had learned, the agreement would have to be drafted in both english and spanish and it would have to be approved in both forms by the parties in writing and under oath.  If that all went well, approval would have to be obtained from the judge hearing the matter for the foreign spouse to be allowed to testify by telephone and a court translator would have to be arranged for that telephonic hearing.  Since the foreign spouse did not speak english it was also likely that this particular judge might require all court documents to be drafted in spanish as well as english to insure the foreign spouse received proper notice of every aspect of the proceeding.  This was especially true because the foreign spouse presumably did not want to retain an attorney for the matter.

Even when these things were explained to the caller, the caller insisted I was attempting to make this more difficult than it needed to be in order to make money and claimed it was just a matter of filling out a few forms and would do it herself.

Regrettably, people often think lawyers complicate things unnecessarily. However, the fact is that the law is complicated and it is always changing. In the end, I was disappointed that the woman didn't realize the complexity of the matter she was dealing with.  I was, however, glad that I didn't have to explain to her that she did not have a simple flat fee uncontested divorce and that I would not undertake representation for the flat fee I had quoted her based on the her initial representations.

In closing, I have learned from numerous Pro Se individuals who handled their own divorces that one wrong word can cost you thousands of dollars in time and legal fees repair the damage caused by an incorrectly written document.  In some instances it has been difficult to inform a Pro Se individual that he or she filled in a divorce document incorrectly and as a result they lost something vital that cannot be undone.

It is always best to sit down for an advice session with a competent and experienced family law attorney in the state in which you have your issue before taking any kind of action.

For people within the State of Rhode Island, feel free to call me to set up your comprehensive low-cost flat fee legal advice session. Know what your options are before you act.

Call today and be on your way to getting the answer you need!  (401) 632-6976


Forgetting to Address Life Insurance In a RI Divorce Proceeding can be Costly!

 

Life_insurance
Image Copyright 2016 DCP Insurance

  By:  Christopher A. Pearsall, RI Divorce Lawyer*

 

David and Kathy entered into a Marital Settlement Agreement in their divorce after Kathy was caught with another man.  In the agreement David gained ownership and control of the life insurance policy covering his life, including the right to change his beneficiary.

David's policy was for $750,000 and Kathy was designated as the beneficiary on his life insurance policy.  For whatever reason, David focused on the big battle of getting through the divorce hearing itself and getting control of his life insurance policy because in the event of his death he did not want Kathy to receive the $750,000.  Instead he wanted the life insurance policy monies to go to his children in the event of this death.

But David didn't do anything but take a well deserved break from all the litigation for the divorce and unfortunately he never got around to changing his life insurance beneficiary. 

Seventeen days before the final judgment of divorce might have entered in his case, David had a heart attack on the golf course and died.  Even though David didn't want the insurance monies to go to Kathy, David never filed the Change of Beneficiary Form.  Therefore, since Kathy was the beneficiary listed on his life insurance policy at the time he died, she put in the claim and was paid $750,000. 

There was nothing David's family could do.  The life insurance was governed by the contract he had signed with the life insurance company.  All of David's efforts to get control of his policy and the right to change the beneficiary were wasted because David failed to immediately change the beneficiary to protect the life insurance proceeds and insure they where paid to the persons he wanted them to go to in the event of his death.

We never expect to die.  We never plan to die.  For some reason we always think we are going to live forever or that we can put off changing the beneficiary to another day because we've done enough work for today.  Yet life insurance plans for death. It is protection for that very thing and the replacement of your income in the event it happens. 

In a divorce, when you get control of your life insurance policy and the right to control your beneficiary, then make the change immediately.  It will take a few days to process as it is and even those few days are a risk.  If you have to pay a little extra to expedite the process or the mailing, then do so.  The alternative is far worse.

I'm sure that if David had realized that he was going to die, then he would have done these things and prevented the wife that cheated on him from receiving $750,000 when he died.  Act on it and plan on changing your beneficiary as if you ARE going to die.  It's that important.

It's worth several hundred and even several thousand dollars at times to get experienced legal help from a professional who knows the Rhode Island Family Court System. 

Yet would if you could get good solid legal advice on various issues for only $150 or even $300 to prevent a travesty like this that rewards your ex-wife and leaves your children with nothing from you.  It be worth such a small amount to get the help of an experienced professional, wouldn't it!

Don't leave your divorce, your life, and your legacy to chance.  Call Me and Set up Your Legal Advice Session!  (401) 632-6976


In a Rhode Island Divorce when you Deal with Pensions Make sure Your Client has a COLA!

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

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

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Yes, it's clearly a poor play on words but it certainly makes things more interesting when I'm writing articles.

In many divorces there are pensions or other types of retirement accounts that need to be divided.  One of the often overlooked provisions in Marital Settlement Agreements or Property Settlement Agreements is the COLA or "Cost of Living Adjustment." 

A good number of pensions and retirement accounts provide for adjustments in the plan for amounts that are or will be paid out in the future.  These cost-of-living adjustments are built into the plan to account for ... as the words imply account for usually the increased cost of living.

It is never a mistake to put in your divorce settlement agreement a clause that makes sure that whatever part of any retirement or pension plan that you may receive in the settlement that you also receive a proportionate or pro-rata share of any cost of living adjustments that may be made by the plan.

For instance, John has a pension that he is not yet entitled to take but he and his spouse are splitting the pension 50/50 as of the date of their divorce.  Whether or not the lawyer takes time to look at the pension terms, he or she should presume that there is a possibility that cost of living adjustments might be made somewhere within those terms or that a term might allow for them to be built into the plan retroactively in the future by new provisions.  This is a good presumption to make because then it leads the divorce lawyer to put in that if there are any cost of living adjustments (COLAs) built into the pension plan either now or in the future that COLA's are also to be divided on a 50/50 basis.

While there may be an argument that this should not be true in every case because a spouse should only get part of what exists only at the time of the divorce, the counterargument is stronger that a Cost of Living Adjustment is applied to the entirety of the pension funds to account for the cost of living for whoever were to receive the funds. 

Thus, if the cost of living goes up for the person who is the participant in the plan then it likewise goes up for the person who receives the other 50 percent of the pension.  If only the participant received the cost of living adjustment, then the participant in the pension plan receives a windfall that was meant to be applied to 100% of the monies in the pension.  So it only makes sense that the COLA should follow the money that it's supposed to offset.  So if the COLA relates to say the entire $2,000 per month to be paid out because the economy has changed and another $200 is awarded as a COLA on that $2,000, then it only makes sense that $100 goes to the original participant in the pension plan because that's the amount that relates to the $1,000 the participant received.  Then the other $100 from the COLA should logically and reasonably go to the ex-spouse who now gets the other $1,000 of the pension funds each month.

The significance is that over time those cost of living adjustments (COLAs) might amount to a significant amount of money.  Does the non-participant's lawyer have to know every term of the pension plan in order to account for this...absolutely not.  All the lawyer needs to do is make sure there is a COLA Clause in the marital settlement agreement to protect his or her client.

You need to have that COLA Clause or cost of living adjustments might add up substantially depending upon the number of years the participant in the pension may receive payments.

So when it comes to pensions, it's always good to pause and make sure your lawyer has taken time for a COLA .... clause.

As I've said before, not all lawyers are the same.  A lawyer who routinely practices Rhode Island divorce and family law can mean all the difference between a lawyer who may only do 5 or 10 divorces a year.

Attorney Christopher A. Pearsall .... making a difference by Caring About People in their divorces for over 16 years.


Can You Get Out Of a RI Agreement in a Divorce That Wasn't On Paper?

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

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You get into court for your divorce and you're trying to work things out to get the divorce done with, so you agree to something "on the record" which is taken down by a court stenographer as something you agreed to.  It's not in writing though.  Are you stuck with that agreement or can you get out of it"?

A recent case gives us the answer at least about a particular set of circumstances relating to an agreement about keeping an ex-spouse on the health insurance when one spouse claims the agreement wasn't on a written settlement agreement.

Keep in mind that each case is a story about the lives of different people that are thrown out in front of us (sometimes reluctantly and embarrassingly) for everyone to see.  

This is the story of the O'Donnell's.  It's a fairly important story in my estimation because I've seen this happen several times before in family court and it's not uncommon.  It is even something that is suggested by judges in order to bring a long and drawn out case to an end.  Take a look at what happened here.

Welcome to the case of O'Donnell vs. O'Donnell, No. 2012-52-Appeal decided on November 18, 2013 by the Rhode Island Supreme Court.

The body of the case is below but let's summarize the case and what it has to say to us all based upon the facts the RI Supreme Court was presented with.

SUMMARY:

 Plaintiff and Defendant each had their own attorney.  They entered into a Marital Settlement Agreement and the judge had the fundamentals of this agreement spelled out to the court and read into the court record.  

Both parties testified under oath that they understood the terms of the agreement and agreed to the terms.  However, details are things attorneys are always concerned about because you can state the basics of the agreement between the parties, but the details matter significantly.  The husband may be thinking the details will work one way while the wife may be thinking they will work in exactly the opposite way.  Sometimes, because of the details a person will not agree to one of the fundamentals because the details don't provide him or her with any security or reassurance.  Anyway, at the attorneys' request the Court allowed the attorneys to come back at a later time with a written Marital Settlement Agreement (with all the details0 signed by both parties which would later be incorporated by reference but not merged into the decision just as the oral agreement was on the record.  The attorney's returned to court but they did not have a separate Marital Settlement Agreement.  The decision does not state why this happened but my guess from several cases I've had like this is that the parties could not reach agreement on the details.  So all the attorneys could do was agree to submit the transcript of the hearing.  So the attorneys presented the hearing transcript to the court signed by both sides as a Joint Exhibit representing the parties' agreement.  The parties acknowledged that they were aware of the agreement and it's terms as stated in the transcript and they did not object to the transcript being used as the agreement.

One of the terms of the Marital Settlement Agreement was that the Plaintiff Husband had to provide health insurance for the Defendant Wife until she reached age 65 and after that he would provide for a Medicare Supplement.

The Plaintiff husband got remarried and notified that he was taking his ex-wife off the insurance.  The wife was the Defendant and filed a Motion to Enforce the Agreement which she said required her ex-husband to provide her with insurance... plain and simple.  Both sides submitted legal trial memorandum and briefs to the trial judge who decided that the ex-husband was bound by his Oral agreement in the transcript to provide health insurance.  Therefore, the trial judge ordered the ex-husband to arrange for replacement insurance for his ex-wife.

The Plaintiff husband was not happy with the decision and appealed the trial court's decision to the Rhode Island Supreme Court.  The full case is below.  It can be summarized briefly though.  The husband's primary argument was that because they never reached a formal Written Marital Settlement Agreement between the two parties, which was clearly contemplated by the lawyers and made clear to the court, there was no "meeting of the minds" and therefore there was no written contract between them and so the ex-husband was not bound to the oral statements he made in court.  So the wife could not enforce a contract that didn't exist.

The R.I. Supreme Court looked at it much differently than the ex-husband.  The parties stated that part of the agreement on the record and agreed to it.  They agreed to be bound by it.  Even though the court let the parties come back later with a detailed agreement, they did not do that.  Instead they presented the very same transcript in which the parties had given their testimony.  Not only that, but both sides signed it and agreed that it was their Agreement and they were bound by it.  It was, in fact, made a joint exhibit without any objection by either party.  

The court found that the agreement was clear on the record and the ex-husband was bound by it and even if he were not bound by it, submitting the transcript as a signed joint exhibit confirmed "in writing" that the parties intended to be bound by what they said.

The case was returned to the family court.  

Since the family court judge's decision was affirmed, the family court judge would most likely continue upon the path of enforcing the agreement by requiring the ex-husband to provide insurance for the ex-wife.

Though there are tangential issues present, they are technical to the matter but for the significance of the case over all, the main point to be taken here is that when you make agreement before the court and agree to be bound by it.... expect to be bound by it and held to it by the court and the parties.

If you are interested in reading the entire case, you will find it detailed below:

 

FULL CASE CONTENT:

John C. O'Donnell, III
v.
Anne A. O'Donnell.
No. 2012-52-Appeal
Supreme Court of Rhode Island
November 18, 2013

         Newport County Family Court No. N 99-537 Associate Justice Karen Lynch Bernard

          For Plaintiff: Allen M. Kirshenbaum, Esq.

          For Defendant: Robert S. Parker, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

         OPINION

          Maureen McKenna Goldberg Associate Justice

         This case came before the Supreme Court on September 25, 2013, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. The plaintiff, John C. O'Donnell, III (John or plaintiff), appeals from a Family Court order directing him to comply with a provision in a divorce settlement agreement that requires him to maintain health insurance for the defendant, Anne A. O'Donnell[1] (Anne or defendant). After hearing the arguments of counsel and carefully examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal may be decided at this time. For the reasons elucidated below, we affirm the judgment of the Family Court.

         Facts and Travel

         The parties to this appeal were married on September 6, 1980. Two children, now adults, were born of the marriage. On December 15, 1999, plaintiff filed a complaint for divorce based on irreconcilable differences, in response to which defendant filed a similar counterclaim. The case was not reached for trial for almost three years; then, on November 12, 2002, the parties indicated that they had reached a settlement. Counsel for plaintiff stated that he was prepared to read the terms of the parties' agreement into the record, but he also requested that the case be continued so that a written property-settlement agreement could be prepared. The Family Court justice presiding over the hearing stated that

"it is my understanding the parties have in fact settled all of the terms and conditions. I want to continue it to December 6 for the actual divorce to go through for the attorneys in the interim to prepare a written Property Settlement Agreement in which the Court will approve and incorporate, not merge; it will be a separate and independent contract. The outlines of the settlement will be read in the record today and the parties are bound by the outlines of the settlement. They can't come back to court and say, 'Gee, we changed our mind. I thought it over. I don't want to do that.'"

         The plaintiff's attorney then proceeded to relate the terms of the parties' agreement. One provision obligated plaintiff to provide health insurance for defendant until she reached the age of sixty-five, with a Medicare supplement thereafter. This provision was somewhat detailed; specifically, plaintiff was required to maintain coverage for defendant under the health and dental insurance plan in effect at the time of their divorce, or provide coverage under an equivalent plan.[2]

         After the parties' agreement was read into the record, the Family Court justice asked both parties whether they had been afforded a sufficient opportunity to reflect on the terms, whether they were entering into the agreement voluntarily, and whether they understood that they would be bound by those terms. Both parties—who were seated with their lawyers—answered affirmatively to each question posed by the Family Court justice. The case was then continued to allow the attorneys to prepare a written agreement, which was to be incorporated but not merged into the final divorce decree.

         At the scheduled hearing date on December 6, 2002, however, a written agreement had not been consummated.[3] Instead, plaintiff's attorney presented the transcript of the November 12, 2002 hearing as an exhibit evidencing the terms of the parties' agreement. He asked that it be marked as a joint exhibit, and defendant's attorney concurred.

         Counsel for plaintiff then proceeded to question his client about the terms of the agreement that had been read into the record at the November 12, 2002 hearing. Specifically regarding health insurance coverage, plaintiff affirmed his understanding that he "will provide [his] current Blue Cross Dental II or equivalent for [his] wife until age 65, and after age 65, Medicare supplement[.]" The plaintiff also acknowledged his obligation to pay any copay expenses in the event defendant was offered health insurance by an employer at a reduced cost. When asked whether he had read the transcript that was entered as a joint exhibit, plaintiff stated, "many times." The plaintiff's attorney then asked whether plaintiff understood the terms of the agreement and if he "agreed it will become a binding agreement between you and your wife, " to which he answered, "yes, I do." On cross-examination, defendant similarly stated that the terms of the agreement had been fully explained to her and that she agreed with those terms.

         Having the benefit of the parties' testimony, the Family Court justice determined that the parties had settled all outstanding issues between them by means of the agreement that had been read into the record by plaintiff's counsel at the November 12, 2002 hearing. The trial justice approved the marital settlement agreement, noting that it was presented as a joint exhibit in the form of a transcript, and ordered it incorporated but not merged into the final divorce decree. A decision pending entry of final judgment was entered on December 17, 2002, which reiterated the trial justice's findings of fact that both parties had accepted the agreement that was read into the record at an earlier hearing and presented to the court as a joint exhibit in the form of a transcript. The decision also specified that the agreement was to remain a separate and independent contract between the parties and was to be incorporated by reference but not merged into the final decree of divorce. The final judgment of divorce, which entered on June 5, 2003, also refers to the parties' marital settlement agreement, and provides that it was incorporated by reference but not merged into the judgment, and is to remain a separate and independent contract between the parties.

         On June 21, 2011, defendant filed a motion to enforce the provisions of the parties' agreement respecting plaintiff's obligation to pay for health insurance.[4] The defendant claimed that she had received a certified letter from plaintiff stating that, as of July 1, 2011, he would no longer provide defendant with medical insurance because he had remarried and was enrolling his new spouse in his health insurance plan. By way of answer, plaintiff challenged the validity of the marital settlement agreement, claiming that the mere reading of an agreement's outline on the record, without a written agreement having been executed by the parties that was incorporated but not merged into the final divorce decree, was not binding. Significantly, plaintiff did not move to vacate or amend the agreement nor did he seek any other relief. In essence, plaintiff alleged that because the parties failed to execute a written settlement agreement, there was no real meeting of the minds between the parties. Finally, plaintiff cited L'Heureux v. L'Heureux, 770 A.2d 854 (R.I. 2001), for the proposition that the Insurance Continuation Act, found in G.L. 1956 chapter 20.4 of title 27, required plaintiff to stop providing health insurance to his former spouse once he remarried.[5]

         At the hearing on defendant's motion, the parties rested on their respective memoranda. The Family Court justice issued a bench decision, finding that the parties had stipulated that the November 12, 2002 hearing transcript that was submitted as a joint exhibit was the written agreement. She determined that at the time of the nominal hearing on December 6, 2002, the parties intended that the transcript would serve as the marital settlement agreement. The Family Court justice also found that there was "no mention anywhere" of the Rhode Island Insurance Continuation Act and that it was clear that the "intent and the clear agreement between the parties was that [plaintiff] was to continue to cover [defendant] with her health insurance except for those conditions of her getting employment that allowed health insurance."

         An order reflecting the bench decision was entered on January 6, 2012. That order specifically stated that the L'Heureux case did not apply because there was a property settlement agreement, and "the clear intent of the parties was that [husband] would be responsible for providing [wife] with health insurance, subject to the other provisions or conditions in the agreement." The order required plaintiff "to comply with the terms of the agreement and to obtain and maintain the health insurance pursuant to the parties' agreement." The plaintiff filed a timely appeal.[6]

         Standard of Review

         It is well settled that this Court "will not disturb findings of fact made by a trial justice or magistrate in a divorce action unless he or she has misconceived the relevant evidence or was otherwise clearly wrong." Palin v. Palin, 41 A.3d 248, 253 (R.I. 2012) (quoting Cardinale v. Cardinale, 889 A.2d 210, 217 (R.I. 2006)). Thus, "unless it is shown that the trial justice either improperly exercised his or her discretion or that there was an abuse thereof, this Court will not disturb the trial justice's findings." Id. (quoting Cardinale, 889 A.2d at 217-18). However, this Court reviews all questions of law presented in an appeal from the Family Court de novo. Zharkova v. Gaudreau, 45 A.3d 1282, 1290 (R.I. 2012) (citing Curry v. Curry, 987 A.2d 233, 238 (R.I. 2010)).

         Discussion

         On appeal, plaintiff claims that the parties never truly reached an agreement.[7] The plaintiff contends that there was no meeting of the minds between the parties and that, if an agreement had in fact been reached, additional provisions would have been included within its terms.[8] The plaintiff argues that the agreement to which defendant points was not a writing signed by the parties and that it is therefore nothing more than stenographic notes. As a result, plaintiff maintains that a stenographic record of an oral agreement reached in open court is not sufficient to form a nonmodifiable marital settlement agreement. The plaintiff's arguments are without merit.

         It is well settled that in order to form an enforceable agreement, "[e]ach party must have and manifest an objective intent to be bound by the agreement." Opella v. Opella, 896 A.2d 714, 720 (R.I. 2006) (citing Weaver v. American Power Conversion Corp., 863 A.2d 193, 198 (R.I. 2004)); Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250, 1253 (R.I. 1996). Thus, "a litigant must prove mutual assent or a 'meeting of the minds between the parties.'" Opella, 896 A.2d at 720 (quoting Mills v. Rhode Island Hospital, 828 A.2d 526, 528 (R.I. 2003) (mem.)).

         In the present case, the Family Court justice found that the parties intended and agreed that plaintiff was to provide health insurance coverage to defendant, with only limited exceptions concerning employer-provided health insurance. The Family Court justice reached this conclusion after reviewing the transcript from the November 12, 2002 hearing, where plaintiff's counsel—without objection—read this provision into the record. The Family Court justice noted that, after plaintiff's attorney submitted that transcript as a joint exhibit at the December 6, 2002 hearing, both plaintiff and defendant testified under oath and confirmed their assent to its terms. At no time did either party object or voice any disagreement with the health insurance coverage provisions. Accordingly, the parties are bound by the agreement which they affirmed in open court.

         The plaintiff also contends that, because the agreement was neither drafted nor signed by the parties, it is nothing more than stenographic notes and not a binding agreement. The plaintiff suggests that a stenographic record of a judicial proceeding cannot form the basis of a nonmodifiable marital settlement agreement. We reject this contention.

         In pertinent part, Rule 1.4 of the Family Court Rules of Practice, entitled "Agreements, " provides that "[a]ll agreements of parties or attorneys touching the business of the court shall be in writing, unless orally made or assented to by them in the presence of the court when disposing of such business, or they will be considered of no validity." (Emphasis added.)

         In Ruffel v. Ruffel, 900 A.2d 1178 (R.I. 2006), this Court—as a matter of first impression—likened Rule 1.4 of the Family Court Rules of Practice to its "identical" counterpart, Rule 1.4 of the Superior Court Rules of Practice. Ruffel, 900 A.2d at 1185. In Ruffel, we held that although parties to a divorce may enter into an agreement to change the valuation date for equitable distribution, in order to comply with Rule 1.4, that agreement must be evidenced by a writing or placed on the record. Ruffel, 900 A.2d at 1186. In so holding, this Court cited to prior decisions declaring that the only way parties may preserve an agreement within the rules of practice is to place that agreement on the record "in the presence of the court, " or reduce it to an agreed-upon writing. See id. at 1185 (citing E.W.H. & Associates v. Swift, 618 A.2d 1287, 1288-89 (R.I. 1993) (holding unenforceable an alleged oral settlement agreement that was not in writing or placed on the record); DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 776-77 (R.I. 2000) (declining to uphold an alleged bifurcation agreement that was not in writing nor placed on the record); Melucci v. Berthod, 687 A.2d 878, 879 (R.I. 1997) (purported settlement agreement not placed on the record or reduced to writing held unenforceable)). These holdings comport with this Court's reasoning that "[r]equiring stipulated agreements either to be placed on the record or to be reduced to an agreed-upon writing ensures that the agreement itself does not become a source of further controversy and litigation." Ruffel, 900 A.2d at 1185 (quoting Swift, 618 A.2d at 1288-89). On the other hand, a stipulation of counsel, whether in writing or made in open court, "is conclusive upon the parties and removes the issue from the controversy." In re McBurney Law Services, Inc., 798 A.2d 877, 881-82 (R.I. 2002).

         Here, plaintiff's efforts to be relieved of the terms of the agreement that was set forth on the record and later introduced as an exhibit are wholly without merit. It is undisputed that plaintiff's attorney recited the terms of the parties' agreement to the Family Court justice in open court. Each party then assented to those terms. At the later nominal hearing, the transcript was admitted as a written exhibit, evidencing the parties' agreement. Each party testified, and once again declared their assent to the terms set forth in the transcript, without objection. Accordingly, plaintiff's argument that the parties' agreement is unenforceable because it was not drafted and signed by the parties is rejected.

         Moreover, the claim that plaintiff would have included many more provisions if an agreement had actually been reached similarly is unavailing. Whatever reason the parties failed to execute a separate settlement agreement before the nominal hearing is of no moment. The trial justice noted that the parties had drafted several revisions, but that no written agreement was ever executed by the parties.[9] However, she determined that at the time of the nominal hearing on December 6, 2002, the parties intended that the transcript of the agreement made in open court would serve as the settlement agreement. We refuse to disturb this finding.

         We also reject plaintiff's claim that the stenographic record of an agreement reached in open court does not rise to the level of a nonmodifiable marital settlement agreement. This Court is cognizant that contractual agreements between spouses are entitled to special judicial attention based on equitable concerns arising from the marital relationship. Gorman v. Gorman, 883 A.2d 732, 737 (R.I. 2005). However, the record establishes that the parties freely entered into and agreed to be bound by the terms that were submitted on the record in open court. We do not overlook the fact that it was plaintiff who offered the transcript as written evidence of the parties' stipulated agreement and who then testified that he understood fully that he would be bound by that agreement. He may not retreat from that agreement simply by entering into a new marriage.

         The Family Court justice who presided over the divorce proceedings specified—without objection—that the terms of the parties' agreement would be incorporated but not merged into the final divorce decree. This provision was then included in both the decision pending entry of final divorce and the final judgment of divorce. The record reflects that the parties intended for the terms of their agreement, embodied in the transcript, to remain a separate and binding contract. As such, it is well settled that "a marital settlement agreement * * * that has been 'incorporated by reference, but not merged into the final divorce decree, retain[s] the characteristics of a contract.'" Hazard v. Hazard, 45 A.3d 545, 550 (R.I. 2012) (quoting Zaino v. Zaino, 818 A.2d 630, 637 (R.I. 2003)); see also Esposito v. Esposito, 38 A.3d 1, 5 (R.I. 2012); Paul v. Paul, 986 A.2d 989, 995 (R.I. 2010); Riffenburg v. Riffenburg, 585 A.2d 627, 630 (R.I. 1991). Accordingly, "[i]t is not the function of this Court, or the Family Court, to set aside a property settlement agreement * * * simply because a party no longer wishes to be bound by its terms or is unhappy with the result." Vanderheiden v. Marandola, 994 A.2d 74, 78 (R.I. 2010).

         Conclusion

         For the reasons set forth in this opinion, we affirm the order of the Family Court. The record in this case may be returned to the Family Court.

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Notes:

[1] After her divorce from plaintiff, defendant resumed her maiden name and is currently known as Anne Alexandra deBaun Allardt. However, for the sake of clarity throughout this opinion, the Court will refer to defendant as Anne or defendant and plaintiff as John or plaintiff. We intend no disrespect.

[2] Counsel for plaintiff clarified that this obligation would cease if defendant were to receive health insurance from an employer at no cost. Alternatively, if defendant were to be offered comparable health insurance coverage from an employer at a reduced cost, plaintiff could instead provide the copay if it was less expensive than directly providing defendant with health insurance through his existing plan.

[3] At the time of the hearing, no explanation was provided for this lapse.

[4] The defendant's motion was styled as a "complaint after entry of final judgment to enforce." The plaintiff's response to defendant's motion was entitled "answer to complaint/motion for summary judgment and other affirmative relief." On July 28, 2011, defendant replied by filing a "memorandum in support of defendant's motion for continuing health coverage, in reply to plaintiff's motion for summary judgment and in support of her cross motion for summary judgment." The defendant then filed a "motion for relief" on August 24, 2011, which was then followed by "plaintiff's memorandum in support of his defense against defendant's complaint to enforce and her subsequent motion for relief, and in further support of his answer and motion for summary judgment and other affirmative relief." On October 21, 2011, defendant filed another document entitled, "reply memorandum of defendant Anne Alexandra deBraun to plaintiff's memorandum in support of his defense against defendant's complaint to enforce, etc." During the time the parties filed these competing memoranda the case had been continued numerous times. However, when the case finally came before the Family Court on November 4, 2011, the justice treated the motion as defendant's motion to enforce, and plaintiff's objection thereto, and not a motion for summary judgment.

[5] The plaintiff does not raise this argument on appeal to this Court. Accordingly, based on this failure to raise and our conclusion that a contract exists between the parties which was incorporated but not merged into the final divorce decree, we need not analyze this argument.

[6] The plaintiff also filed a petition for certiorari seeking review of the order; however, that petition was denied on the grounds that the Family Court order was properly appealable.

[7] We note that plaintiff's current counsel is not the same attorney who represented plaintiff in the original divorce action.

[8] For example, plaintiff contends that the provisions regarding health insurance and alimony would have been made modifiable, and that consequences relating to the death of either party would have been included.

[9] Notably, each draft of the proposed written settlement agreement—submitted to this Court by plaintiff's attorney—contained the same, unchanged provisions regarding plaintiff's obligation to provide health insurance coverage to defendant, analogous to those read into the record at the November 12, 2002 hearing by plaintiff's attorney.

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Are Extracurricular Expenses for your Child Covered by your Court Ordered RI Child Support?

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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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Often times payors of child support don't know what is covered and what is not covered by their child support payments.

The truth be told, there is no exact list as to what child support covers.  Yet there is one thing that seems clear.   Expenses for extracurricular activities that involve items that are separate and distinct from basic items that you would think would be covered by child support re not covered by child support payments.

The statute that creates theRI Family Court gives it among other things ... the power to handle issues relating to the support of minor children.  The statute does not explicitly say "child support" and because of this their are cases that have been brought before the Rhode Island Supreme Court such as Chiappone v. Chiappone, 984 A2d 32 (R.I. 2009) that mention orders of both child support and separate orders for extracurricular activities.  Even though the case was not before the Rhode Island Supreme Court on the challenge of an order of extracurricular activities, it is implicit that such orders are within the power of the court because one would expect someone on the Supreme Court panel to comment in the very least if it were outside the power of the family court to issue such orders.

Therefore, child support and extracurriculars are separate and distinct costs and expenses and that is precisely why most family law attorneys deal with each of these issues separately in Marital Settlement Agreements between parties.

However, an issue still remains.  What happens in the absence of lanugage about the extracurriculars?  Many child support recipient parents and guardians believe that it is the duty of the child support paying parent to pay all or at least 50% of these extracurricular expenses.

This is incorrect.  Extracurricular expenses are not an entitlement of any person or child.  A child may receive them if and only if the parties agree to these expenses in their marital or property settlement agreement, or if the court issues an order requiring a parent to pay a portion of those expenses, usually those expenses that are both reasonable and agreed upon by both parents in advance of incurring the extracurricular expense or signing the child up for the activity that involves the extracurricular expense.

A parent who makes payment of extracurricular expenses may do so because they love their child and they have the extra money to do so at the time.  However, no parent should take that as a commitment that they are required to continue to do so in the future absent a formal agreement or a court order as stated above.  Any parent receiving extracurricular expenses from a parent who has no formal agreement and no order from the court requiring that such payments be made should count himself or herself lucky that a parent cares enough for their child to do so.  

There is no "entitlement" to contribute to extracurricular expenses.  They are, as the word denotes "extra."  They are not essential or necessary and many children go without extracurricular expenses that cost a single dime.  Therefore, absent a formal agreement in a divorce or legal separation or a court order, the recipient parent most likely made the choice of enrolling the child in the extracurricular unilaterally.  Therefore It is only right that the enrolling parent should expect to pay for that extracurricular himself or herself without expecting contribution from the other parent.  

Any contribution by either parent that is without a formal written contractual agreement or a court order is merely gratuitous based upon the love of the child.

Neither parent can reasonably expect that upon demand of the other parent under these circumstances that the other parent contribute to the extracurricular activity of the child, especially if he or she does not have the opportunity to participate in or accompany the child in attending the extracurricular function.

Any parent who enrolls a child in an extracurricular activity without clearing both the extracurricular activitiy AND each expense to be incurred that they would ask the other parent to contribute to has unreasonable expectations and has failed to consider the finances and financial plans of the other parent.  

Ultimately any parent who plans in this way should expect that the court is likely to rule that the parent who made the extracurricular plans for the child and expended the funds on behalf of the the child should do so entirely at his or her expense.