Rhode Island Divorce Tips

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. 

Atty Chris Pearsall

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

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Readers, Correct me if you think I am wrong.  I've been reading a few books and websites that are fairly well read by attorneys and legal professionals and held in reasonably high regard and they have caused me some confusion.  If I were to combine the explanations I have read and heard on collaborative divorce, I have heard that it can be a divorce involving attorneys, mediators and/or other professionals such as therapists, psychologists, clinical social workers, psychotherapists and any number of legal and/or mental health or other professionals capable of mediating parties to a divorce.  

From what I have understood, this is way off the mark.  Frankly, I'd like to make sure I have this right.  To my way of thinking a collaborative divorce involves clients and attorneys.  If other professionals are needed in addition to the attorneys then the lawyers would seek their assistance and/or participation for the betterment of the client's involved.

In a collaborative divorce the parties select attorneys to advise them and help them through divorce settlement negotiations.  Typically the parties and their attorneys all sign what is often referred to as a "Participation Agreement/Participation Contract."  The agreement essentially sets forth that the parties agree to whatever written and signed settlement agreement that they reach.  Additionally, the attorneys agree that if, or when, the matter goes to litigation that neither attorney will represent the parties involved. I

The benefit of using the collaborative divorce process as I understand it, is that each party reaches a settlement they are bound to by their own agreement but they do not do so while being ignorant of their legal rights.  Each client has their own attorney for purposes of reaching a settlement.  There you have it, the ultimate goal.  The idea is to reach a settlement and know your legal rights and the pros and cons for each decision you make and how it will affect you.

So, by hiring a collaborative law divorce attorney you hire the lawyer to help you settle the case.  If the case doesn't settle using the collaborative law attorneys then each of the clients must get a new lawyer and duke it out in court.  

Do I have it wrong?  Some colleagues tell me no, other colleagues tell me I do have it wrong and that mediation itself is also a collaborative divorce process.  I don't equate the two the same way even though the word "collaborative" might be a good word to describe the mediation process.

Someone obviously came up with this concept of collaborative law just as I founded the concept of Divorce and Family Law Coaching from the legal dynamic and not the emotional and therapeutic approach that many counselors, therapists and psychologists have developed throughout the country.

I would like the input from attorneys, judges, consumers and anyone who cares to chime in.  I am a person who has wanted to know something and in knowing it to know that it is right.  Does anyone have some good sources that might be found more reputable than others?  I most assuredly won't dwell on the topic and I will participate as a collaborative lawyer as I believe the concept exists because I see the benefits received by clients in choosing this method and in operating in the way I have described.

I welcome your feedback so that I may continue to improve my practice for my clients.

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Mark Baer: Is the Adversary Model Appropriate Suitable for Family Law Matters?

Atty Chris Pearsall

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

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Question: I have a question on my son being claimed on ex-wife’s taxes. My son is going to be 20 in a couple weeks (scary). He has income, summer work and interest from bonds we had to cash for school. I can put the income on my tax return but, can I now claim him on my taxes? I don't want the added income and not the deduction. I supply all finances for my son's school and living expenses. I don't know how the agreement holds in the legal document stating ex-wife can claim this son? Does this end like the support for him ended when we modified the contract (child support) because of his turning 18 years of age?

Response: If you don't know how your marital settlement agreement with your ex-wife holds or states under what conditions your ex-wife can claim your son then you clearly need to get a copy of that document from your family court file. The wording of that document is likely to be the controlling language and probably has the answers you are looking for. Without it, we are just talking about speculation. For instance, typically if you have a marital settlement agreement with your ex-wife that states that she is allowed to claim your child until he can no longer be claimed anymore then you can't claim the deduction. The child support termination time does not relate to your private agreement with your wife about the tax deduction unless your marital settlement agreement somehow ties the two timeframes together. This is something I have seen done only once in the course of my practice. Unless the marital settlement agreement is somehow worded poorly so that you have a legal way to justify claiming your son as a tax deduction without violating that agreement, then you cannot take the deduction. Without the agreement in front of you, you don't have the information you need to make an informed decision and attorneys such as myself don't have the information we need to advise you properly and accurately based upon your correct circumstances.

As I stated, this is just speculation based upon what may be in that agreement so you can understand that the importance the wording the agreement plays here. Typically if I represent a soon to be ex-wife I also make sure that under some circumstances she may need to realize that if your son files his own taxes and claims his own deduction then she is precluded from taking that deduction too, provided new legislation doesn't state otherwise. You should get the Marital Settlement Agreement from your divorce file at the court and then provide the exact language so that you can obtain legal advice from a lawyer or through this forum that does not involve any form of speculation and we are dealing with facts and not guesswork based upon what you may think is in the document. I hope this has been of some help. Feel free to contact me for a paid advice session once you have the document. Best of Luck to you no matter what you choose to do.

Recently, I was at the Providence Family Court waiting in line to file some documents for a client.  I heard two people talking to each other at the counter.  From the gist of the conversation I could tell that they were both filing their own divorces and being helped by separate clerks.

One person seemed very confident about his filing and the other younger man didn't seem so confident.  Rather than asking one of the lawyers who were still standing in line waiting to be helped, the less confident man asked the other one if he could settle his case without a lawyer.  The more confident fellow responded "Absolutely, you just put down what you and your wife agree to on paper and submit it to the judge on the court date."  The less confident man seemed reassured that there wasn't more to it and he went on his way breathing a sigh of relief.

Certainly people can settle their divorce cases without a lawyer.  Heck, I see people do it all the time and I'm sure it's not limited to Rhode Island.  I've seen people do it on the day of their divorce on a single piece of lined notebook paper.  It doesn't look fancy but it works for them.

Yet the interaction between the two men got me thinking.  Do people do it better without lawyers or would it be better if they had a lawyer?

As a lawyer you'd think I'd jump in and say that people can't do it and you need a lawyer and all that stuff and there's much more to it than just what people scribble down on a piece of paper because they don't know the law.

Thankfully I was a philosophy major in college for 5 years and it taught me to think until my head hurt.  It was a good match for law school.  Yet the point of mentioning this is that it taught me not to simply advocate for my profession and more clients but to think of the REAL answer and to give it to people straight with no sugar coating.  In otherwords, for people to hear the truth.  

So what is the truth?  The truth is this.  Yes, you can settle your divorce without a lawyer.  AND, you could do it WITH a lawyer!  It's an easy question to answer.  

Then there's the much harder question to answer,  If you can settle your divorce case without a lawyer should you?

I had to ponder that question for a while and make a few assumptions.  Let's assume that you have enough money at least to have an attorney do the bargaining and drafting of the agreement with your spouse.  

Now ask the same question under those circumstances.  Should you settle your divorce case without a lawyer?

I thought about this for days.  I didn't jump to conclusions.  I considered every angle imaginable just with the assumption that the person had enough money to have an attorney bargain for the settlement with your spouse or your spouse's lawyer and then write it up for you.

Get this.  After all of that here is what I came up with. 

Can you settle your divorce without a lawyer?  Absolutely.  Should you?  If you can't afford a lawyer at all for any part of your proceeding then "Yes."  After all, what are you going to do except do it yourself.

Now add in the assumption that you could pay for a lawyer to do your bargaining and write up the Marital Settlement Agreement for you.  Should you?

Here's my answer.  "Yes and No."

Can the person in that position still settle their divorce case without a lawyer?  Absolutely?  Should they do so even if they have the money for a lawyer to do the bargaining and write up the agreement?  Yes, they should try to settle it.

Now the question is "Why?"  Why would I come to such a conclusion when my job is to protect people's rights?

The answer is quite simple.  People who can communicate together will settle their divorce and generally speaking they will settle it in a manner that is acceptable to each them.  In fact, I would be willing to bet that they will do a much faster job than an attorney who will be focusing on the details from the start as lawyers usually do.  

People want their divorce done and over with and therefore they usually process the most important things quickly and settle them.  They don't focus on the details as lawyers do.  Therefore, the fundamentals of the settlement process will usually be completed much more quickly and much more easily than an attorney will handle it.

Keep in mind that I am talking about the fundamentals and not the entire agreement.  Should a person who has the ability to pay a lawyer to draft a final agreement draft that agreement on their own.  Then my answer is "NO."

Your final Marital Settlement Agreement as submitted to the Family Court as an Exhibit is most likely going to be a contract that is going to bind you and your spouse until all the provisions are complied with.  There are too many details that lawyers DO think of that are very important that people do not think of on their own.  If you miss those details then you might as well plan on returning to court time and time again if their is anything at all of significance in your agreement.

When I mean anything of significance, this includes children, visitation, child support, debts to be paid, assets to be kept or sold, real estate, retirement plans, joint physical custody (i.e. placement), items that each party may buy before the Final Judgment of Divorce but after the court hearing, health insurance, division of retirement accounts, etc....

All of the things that I mention above involve details that the layperson and even a well-informed person is typically not aware of. Without a lawyer to look over an agreement and find the holes you may have missed with your spouse.  Remember that this agreement is not to intimidate your spouse or scare him or her, but rather it is to make sure important issues that are evident to lawyers experienced in family law are not overlooked by the layperson.

So if you can resolve your divorce with your spouse.  Great!  But have a lawyer look it over, then advise you of your rights regardless of what you may have agreed to and then fill in the holes so that everything is covered between you and your spouse.

Remember, you won't get a chance to do this agreement right.  So get it right the first time.

I'm Affordable and I'm here to help when you need me.

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

Question:  

In a Rhode Island Divorce doesn't my spouse have to continue keeping me covered by health insurance even after the divorce is finalized?

Answer:

No.  There is no Rhode Island law that says a spouse who has provided health insurance to another spouse must keep the other spouse insured under the existing health insurance plan.

Health Insurance is something that may or may not be negotiable during any particular divorce.  If the company that has set up the health insurance plan has set it in accordance with federal laws then the health insurance company may refuse to cover ex-spouses.  If that is the case, there is no negotiation regarding that particular health insurance because she won't be covered ... period... end of story.  

If the company has set up it's health insurance plan in accordance with Rhode Island law (ie. state law) then ex-spouses are generally covered as long as it is stated in the court's order that the spouse will remain on the insurance plan in accordance with the Rhode Island Health Insurance Continuation Act.

Keep in mind that this has to do with whether the spouse can remain on the insurance plan and NOT whether the spouse who is the main plan member has to pay for that other spouse's premiums.  That is a different issue entirely that I will cover in another question tomorrow.

[Please note that coverage available as a result of military service in the armed forces may be a completely different issue and completely unrelated to this answer depending upon the factual circumstances of your marriage and Rhode Island divorce case.]

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach."