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

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

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

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

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

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

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

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

An example illustrates this best.

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

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

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

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

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

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

The judge's response was simple,

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

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

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


Rhode Island Divorce Mediation - What is it, really?

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

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Rhode Island Divorce mediation is not a new concept.  It may or may not be of benefit to you in your spouse in resolving your divorce issues.

Divorce mediation typically involves you and your spouse agreeing that you will sit down with a third party as a mediator in an effort to reach an agreement that is acceptable to both spouses for the resolution of the divorce . . . or perhaps better referred to as the settlement of the marriage.

It remains controversial as to whether the mediator must be an attorney or whether another third-party good at negotiating solutions to family issues is sufficient.   From the perspective of a Rhode Island lawyer who focuses his legal practice in the areas of Rhode Island divorce and family law I can see the pros and cons of using either. . . . and they are significant.

Consider this one example:

You and your spouse either know or agree that you will get divorced.  Your spouse suggests that you can reach an amicable resolution by sitting down with a Rhode Island marriage and family counselor who has had success in helping couples find common ground deciding what to do to finalize their divorce.

You and your spouse go to this Rhode Island marriage and family counselor.  A portion of the mediation session goes like this.

Counselor: [To Both of You] Now, I know this divorce isn't going to be easy for either of you but you both need to be able to survive and move forward with your lives after this is over, wouldn't you agree.

Parties:  [Both nodding]

Counselor [to You] :  Okay.  Now I understand that you've been the main earner in the household, is that right?

You:  Yes, that's correct.

Counselor [to Your Spouse]:  And you work part-time to help out with the expenses when needed but you mainly use the money you make for your own personal spending money, is that right?

Your Spouse:  Yes, that's about right.

Counselor [to You]:  Now you have a college degree, is that right?

You:  Yes

Your Spouse:  And I have my high school diploma.

Counselor:  And how long have you two been married?

Your Spouse:  We've been together for 15 years and married for almost 12 years of that time.

Counselor:   And during that time,  who has been making what portion of the income for the most part?

You:  I've made about 80 to 85% of our income.

Your Spouse:  And I've made the remaining part.  I think that is a pretty good estimate.

Counselor:  Now in my experience only uncivilized and vindictive people go through a divorce and try to hurt their spouse.  I don't think either of you fall into that group because you're here meeting with me today, is that fair to say.

Both You and Your Spouse:  Yes.

Counselor [To You]:  Okay  . . . now you understand that your spouse is going to have a much harder time financially to make a go of it without your income, right?

You:  Well, yes.

Counselor [To You]:  And it's no secret that your spouse has been relying on you financially for the past 12 years to survive, right?

You:  I guess so.

Counselor:  Well, here you are getting ready to go through your divorce here in Rhode Island and it's important that we agree regarding the things we're discussing here today so it's important that we are sure about thing that we agree on so it's better if we don't guess.  Has your spouse been providing mostly for her own support for the past 12 years?

You:  No.

Counselor:  Has your spouse been relying upon someone else other than herself for her financial needs?

You:  Yes.

Counselor:  Okay, can you give me that person's name and address.

You:  Well, that person is me!

Counselor:  Oh... there isn't anyone else?

You:  Not that I know of.

Counselor [To Your Spouse]:  Well, is there anyone else that you've been relying on for your financial needs?

Your Spouse:  No.

Counselor [To You]:  So is it fair to say that your spouse has been relying on you these past 12 years?

You:  Yes.

Counselor [To Both of You]:  Now you both realize that your divorce is going to change that, right?

You and Your Spouse:  Yes we do.

Counselor [To Both of You]:  And you both realize that your spouse is going to need to survive financially after this divorce, don't you.

You and Your Spouse:  That makes sense.

Counselor [To Your Spouse]:  Now you probably figured out already that you're probably going to have to work on a full-time basis and take care of yourself after this divorce is done.  Have you considered that?

Your Spouse:  Yes.

Counselor [To You]:  And you've probably figured out that you're probably going to have to help your spouse financially for a time, right?

You:  What?!?

Counselor [To You]:  Well, your spouse has been relying on you for 12 years.  We just talked about that a minute ago, correct?

You:  Yeah.  What's your point?

Counselor [To You]:  And you agreed that you both need to be able to survive financially and be able to move on  with your lives after this, right?

You:  Yes I did, but. . . [trailing off]

Counselor [To You]:  You didn't expect that you were going to support your spouse for 12 years and then just get a divorce and the family court would just let you walk away did you? 

I mean . . . this is 12 years you've been doing this for your spouse.  Doesn't it make sense that the Rhode Island family court is likely to tell you that you'll need to provide some financial support to your spouse for a bit longer so there is time to recover financially?

You:  Well I didn't think I'd have to pay . . .

Counselor:  But it makes sense,  doesn't it?  You supported your spouse for 12 years or more  and you are the one that makes most of the money.  Your spouse needs a little bit of time, probably a couple of years, to adjust to this huge change, get new job skills, work up to a full-time job and perhaps develop skills for another job.

You:  Yeah but. . . [thinking]

Counselor:  So you need to be prepared to help out for some period of time, it's only fair isn't it?

You:  I suppose so.

Counselor:  Now you've built up a pretty sizeable retirement account, do I have that down right?

You:  Yes . . . I think iw was about $175,000.00 as of the last statement.

Your  Spouse:  Let's keep in mind that there's some infidelity here.

You:  Well you drove me to it.  If you weren't so cold and distant I wouldn't have had to find someone who cared and could give me what I needed.

Counselor:  Okay . . . let's remember that this isn't to try to resolve all of your personal issues, this divorces mediation session is for us to see what affect all of these things have had on you and how we can work out an agreement for your divorce.  The idea is, what can we mutually agree upon so that we can help you move forward with each of your own separate lives after this is all over.

Your Spouse:  But that's what this divorce is all about?

Counselor:  I can completely understand that you feel that way, and if I didn't know better I'd probably agree with you, yet in the end this is all about a relationship that has broken down and can't be fixed.  When that happens people go through a legal divorce proceeding.  What we're here about today and what you both hired me to do is to try to see if we can reach some common  ground to go your separate ways fairly.

Your Spouse:  Well, I want it all.

You:  All of it?

Your Spouse:  I think it's only fair since you cheated on me. 

You:   Are you crazy?

Your Spouse:  You should have thought of that before finding another bed to sleep in.

Counselor:  [Interrupting the squabbling] Are we done?

You and Your Spouse:  Done?  What are you talking about?

Counselor:  We're done, right?  You two just want to hurt each other so we're done, right?  I've earned my fee and you can go into court and just scream at each other.

You and Your Spouse:  No... [you] .     No.  [your spouse].

Counselor:  Then let's look at things here.  Is this a fault divorce?

Your Spouse:  No it's not.  My attorney says I should file based on irreconcilable differences.  But I deserve something.

Counselor [To Your Spouse]:  Well perhaps that's true yet isn't ALL of it a bit much?

Your Spouse:  Not to me.

Counselor [To Your Spouse]:  Okay... you say that you were cheated on, right?

Your Spouse:  Yes I do.

You:  It's not true though!! [very defensively].

Counselor:  Okay, I'm not going to agree if it's true or not, but assuming it is true just for the sake of argument, how much did this affair... affect the value of the $175,000 retirement plan?

Your Spouse:  How much did it affect the retirement plan?

Counselor:  Yes. 

Your Spouse:  It didn't.

Counselor[To Your Spouse]:  It didn't affect the retirement account at all?

Your Spouse:  No.

Counselor [To Your Spouse]:  Then why are you asking for all of it?

Your Spouse:  Because I deserve it!!

Counselor [To Your Spouse]:  Why?

Your Spouse:  Because of the affair?

Counselor:  So what you are saying is that if you were originally entitled to 1/2 of the retirement account that you are entitled to the other $87,500 because you were cheated on.

Your Spouse:  [Hesitating]  Well. . . . yes that's what I'm saying.

You:  I did not cheat on you or have any affair!

Counselor:  [Interrupting again] . . . You're hurt.  I understand that.  And maybe that is worth something financially . . . yet it just doesn't seem quite reasonable to ask for the whole retirement account when you even say yourself that the affair didn't hurt the retirement account or your part of it.  A judge might give you half or a little more but I don't think a judge would give you all of it.

[Silence as Counselor thinks...]

Counselor [To Your Spouse]:  Assuming just for the sake of argument that there was an affair and no damage was done to the retirement account as you've already said, what do you think is reasonable to ask a judge for.

Your Spouse:  I don't know.  I'm not a judge.

Counselor:  Well what does any affair have to do with all the hard work and deposits that are made into a retirement account if you were to get 1/2 of it right off the bat?

Your Spouse:  Well it doesn't have anything to do with it when you put it that way.

Counselor [To Your Spouse]:  Okay, well we've agreed that you will need some financial help for a bit of time to get on your feet.  Keeping that in  mind, how much of the retirement plan would you agree to take in order to resolve this issue and get on with your life?

Your Spouse:  75 percent.

You:  You are kidding me.  For an affair I didn't even have?!?

Counselor [To You]:  So that isn't acceptable to you, right?

You:  No!  That's robbing me.

Counselor [To Your Spouse]:  Okay, is there a lesser amount that you might consider.


Your Spouse:  Sure.  Give me the whole thing and I won't take anything from you to get by until I get on my feet.

Counselor [To You]:  What do you think of that?

You:  [Thinking]

Your Spouse:  Otherwise I'm going to go to court and ask for financial help for the next five (5) years plus 75% of your retirement.

You:  [Frustrated] ..... Fine.

Counselor [To You]:  Fine to what?

You:  [Still Frustrated]:  If I don't have to give her any extra financial help then she can have the entire retirement account.

Counselor [To You]:  Are you sure?  We're going to set this down in stone so this needs to be firm that you absolutely agree to this.

You:  Yes... yes... yes... I agree.  Let's move on.

In this Rhode Island Divorce mediation setting you can see the interpersonal skills of the Marriage and Family Counselor at work.  The mediator tries to work with each party, keeps him or her focused on the issues at hand using excellent personal relationship skills and discusses the various positions without taking the side of either party.  Logic and common sense are a part of the dialogue yet he or she does not use legal arguments.  The parties are drawn together toward a resolution that each agrees upon that the parties agree will be committed to paper and signed as a resolution of their divorce issues.

The pros of a third-party divorce mediator with counseling and/or psychological skills but who is not law trained are seen mostly in the method used by the mediator/counselor to bring the parties together by agreeing in part with each of their positions, providing understanding and also redirecting the party to another way of thinking about a situation without taking on the role of being an advocate for the other party.

The con of using a third-party divorce mediator who is not law trained is the lack of practical family court experience and knowledge of the process.  In this particular case, an attorney acting as a mediator for a divorcing couple would be inclined to call to Your attention that alimony in Rhode Island is rehabilitative in nature, may be very limited in time or scope and is also dependent upon Your income and other assets that may be available from the marital estate.  This is something a third-party divorce mediator will not usually undertake since the objective of a mediator in this instance is simply to reach an agreeable result and not necessarily achieve a fair result based upon how a Rhode Island family court judge is likely to rule.

The pros of using a law trained mediator are obviously the cons of the third-party counseling divorce mediator.  Law trained mediators (such as lawyers focusing their practice in divorce and family law) bring with them the realistic and practical real world results that come from seeing actual cases before the court.  This would seemingly lead to a more equitable result or perhaps a result that is more in accord with a result that you might receive from a Rhode Island Family Court Judge presiding over your divorce.  Agreements by law trained mediators are more likely to encompass a whole agreement which is dependent upon each of it's components (i.e. it is a package deal) in order to work as opposed to a bunch of individual elements that are segregated and agreed to one at a time.

The con of using a Rhode Island law trained mediator (i.e. Rhode Island Family Law Mediator) is the lack of any formalized counseling and/or psychological training which helps to facilitate the atmosphere where the parties are drawn together to reach agreement.

If at all possible a Rhode Island law trained mediator who is regularly practices before the Rhode Island Divorce and family court system and also has background in counseling and/or psychology is perhaps the best bet both for reaching an agreement generally and in particular for reaching an agreement that is an accordance what a Rhode Island Family Court judge is likely to order.


Rhode Island Divorce - Bank Accounts And the Names on them Does Matter!

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

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If you are going through a divorce in the Rhode Island Family Court system then the bank account(s) you have either jointly or individually with your spouse may be one of the first subjects that is addressed whether you like it or not.

Both husbands and wives who are contemplating divorce from their spouse will generally have as one of their main concerns the bank accounts.  This is for any number of reasons.  The first reason is because it is likely to be the primary source of any immediately liquid financial resources to pay a divorce attorney to get your through the family court process.  The second reason may be because it is this source of funds that is used for the payment of marital and/or family obligations and that without those funds the bills simply won't get paid or the children won't have food to eat.  The third reason may be that one spouse is simply afraid that the other spouse is going to lock them out of the bank account and/or take "their half" of the money and it will never be seen again.

Perhaps one of the most often questions that is presented in the course of my divorce consultations with prospective clients is this, "The account is in both or our names.  I'm worried my husband (or wife) will file for divorce and take all the money.  What should I do?"

Technically speaking, before the divorce proceeding is filed the money belongs to both persons on a joint bank account equally.  In otherwords, you both have a 100% right to the monies in that account (absent other extenuating circumstances that may provide an argument to the contrary).  Therefore, if either of you take all the monies out of the bank, you have not committed any wrongdoing.  That is not to say, however, that you then have a right to all of that money or that you will not have to account for it later.

Rhode Island laws regarding divorce follow the principle of equitable distribution.  Although this does not always mean equal distribution between the parties, this is generally where most judges start in a divorce case.    Assuming that this is where most judges will start, it is not unusual nor unfair that a divorce lawyer will counsel his or her client to remove only half of the monies in a joint account to protected himself or herself from being divested of all the monies by the other spouse.  This, however, should come with a caveat as well.  A divorce lawyer giving this advice is usually NOT saying that when you remove half of the monies in the marital bank account that you are entitled to keep those funds, or that you will not have to account for them or that you won't have to give all or a portion of those monies back or provide for an offset for those funds to settle your case.

Once the divorce case is filed, the bank accounts in the name of either you or your spouse are essentially to be considered "frozen" with the exception of the payment of those costs and expenses that are typically paid from those funds on a regular basis.   A divorce attorney therefore may give you this advice not to give you a financial windfall but rather as a protective measure.  There are instances, however, when the money may normally be used without any adverse action by the family court.

You should always consult your divorce lawyer regarding what you can and cannot do with the monies you withdraw from any bank account even before the filing of divorce.  Though no orders truly control what you can and cannot do with monies you withdraw that you are lawfully entitled to, the opposing party can use your spending conduct against you with some judges and do some permanent damage to your case by tipping the judge in favor of your spouse.


Rhode Island Divorce Orders for retirement and other special accounts via the Qualified Domestic Relations Order

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Authored By:  Christopher Pearsall, RI Divorce Attorney
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The Qualified Domestic Relations Order ("QDRO") is a typical mechanism for distribution of retirement plans between spouses.  QDROS are special orders drafted with respect to the retirement, pension, annuity, 401k or other retirement plan vehicle.  These orders can, and generally are, very technical and detailed in nature when drafted correctly.

Contrary to what some legal practitioners think QDROs are not for the occasional practitioner, unless of course you want the future liability that goes with it.

Qualified Domestic Relations Orders are best drafted by those who are skilled in the practice of drafting such orders.  QDROs are typically drafted in conjunction with and consistent with the plan documents.  The "plan documents" are typically considered those documents that govern the administration of the particular investment or retirement plan/vehicle that is to be divided in your Rhode Island divorce proceeding.

QDROs are usually prepared after the trial or nominal proceeding in a divorce case.  It is recommended that the average Rhode Island lawyer who even routinely practices divorce law should avoid the drafting of QDROs if he or she does not regularly prepare them and is not aware of the substantial liabilities for improper drafting, failure to anticipate changes in federal laws, failure to address tax issues, failure to account for early retirement issues or for the distribution of the corpus that is the subject of the QDRO based upon the lifetime of the non-member spouse of the plan or retirement vehicle to be divided.

After months of experience endeavoring to conquer the legal intricacies of the QDRO in all its aspects, I have come to the conclusion that many other practitioners before me have already recommended.  The QDRO is a legal animal best left to those skilled in it's preparation.

When hiring a lawyer, ask about QDROs and the cost for their preparation and whether your divorce lawyer prepares them as part of your agreement.  Typically you can expect that this will be an extra expense in your divorce case that is paid to another attorney who specializes in the preparation of QDROs.   Clients should anticipate adding another $600 to $800 to their divorce costs if some form of retirement vehicle is to be divided by a QDRO.


RI Divorce Snippet about Inherited Property as a possible Asset in a Divorce Case!

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Authored By:  Christopher Pearsall, RI Divorce Attorney
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Rhode Island General Laws § 15.5.16.1 sets forth the primary statute delineating the Equitable Distribution of the Marital Estate in a Divorce proceeding whether it is an Absolute divorce or a divorce from bed and board.  That statute currently states as follows:

R.I. General Laws § 15.5.16.1 sets forth the primary statute delineating the Equitable Distribution of the Marital Estate in a Divorce proceeding whether it is an Absolute divorce or a divorce from bed and board.

That statute currently states as follows:

  15-5-16.1. Assignment of property

(a) In addition to or in lieu of an order to pay spousal support made pursuant to a complaint for divorce, the court may assign to either the husband or wife a portion of the estate of the other. In determining the nature and value of the property, if any, to be assigned, the court after hearing the witnesses, if any, of each party shall consider the following:
(1) The length of the marriage;
(2) The conduct of the parties during the marriage;
(3) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates;
(4) The contribution and services of either party as a homemaker;
(5) The health and age of the parties;
(6) The amount and sources of income of each of the parties;
(7) The occupation and employability of each of the parties;
(8) The opportunity of each party for future acquisition of capital assets and income;
(9) The contribution by one party to the education, training, licensure, business, or increased earning power of the other;
(10) The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage;
(11) Either party's wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and
(12) Any factor which the court shall expressly find to be just and proper.
(b) The court may not assign property or an interest in property held in the name of one of the parties if the property was held by the party prior to the marriage, but may assign income which has been derived from the property during the term of the marriage, and the court may assign the appreciation of value from the date of the marriage of property or an interest in property which was held in the name of one party prior to the marriage which increased in value as a result of the efforts of either spouse during the marriage. The court also shall not assign property or an interest in property which has been transferred to one of the parties by inheritance before, during, or after the term of the marriage. The court shall not assign property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage.
(c)

The assignment of property, if any, to be made shall precede the award of alimony, since the needs of each party will be affected by the assignment of property, and once made in a final decree shall be final, subject only to any right of appeal which the parties may have. Any assignment made by the family court shall be regarded as a judgment for debt so that suit may be brought or execution may issue on the debt for the property due and undelivered, or the amount due and unpaid to be shown by affidavits of the person entitled to the property and the attorney of record of the person, the executions to run against the goods and chattels of the husband and wife, as the case may be; and the court may make all necessary orders and decrees concerning the suits or executions.

Current through Public Law 143 of 2013 Legislative Session

So what is the snippet of information to give you?  It arises from the case of Quinn v. Quinn, 512 A.2d 848 (RI 1986) which has been confirmed as current law by its restatement in Tondreault v. Tondreault, 966 A.2d 654 (R.I. 2009).  

The Quinn case tells us that despite the statutory provisions in RIGL 15-5-16.1, the statutory provisions do not preclude the court from including within the marital estate an asset that is traceable back to inherited property.

Simply because an asset was inherited does not exclude it from the marital estate.  If you included your spouses name on the asset's title, if you commingled the asset with your marriage, if you sold the asset and used the proceeds to buy something used in your marriage, if you inherited funds and deposited them in a joint account with your spouse . . . . all of these things can change the character and nature of the inherited item such that it is no longer exempt from the marital estate.

The law changes frequently.  Always have to check your law and seek the advice of an experienced Rhode island divorce attorney who has been fully infomed about your case before taking action.