My spouse died during our Rhode Island divorce, what happens to the divorce proceeding?

Death_during_divorceQUESTION: I filed for divorce from my spouse. We each had lawyers.  We settled the case.  Our attorneys wrote the agreement up in a Property Settlement Agreement that we signed and submitted to the court at our divorce hearing.   Just before the three (3) month waiting period ended for the Final Judgment of Divorce to enter, my spouse died.  What happens to my divorce proceeding?

ANSWER:  The currently governing case in Rhode Island is Centazzo v. Centazzo, 556 A.2d 560 (RI 1989).  In Centazzo the RI Supreme Court ruled that divorce is a personal cause of action and therefore it terminates on the death of one of the parties. "Thus if an action for divorce is commenced and one of the spouses dies before the entry of the final judgment, the divorce action abates." Id. at 562.

In Centazzo the court ruled that the divorce action abated on June 25, 1986, the date Alice Centazzo died.

Therefore, upon the death of your spouse, the divorce proceeding ends on the date of death and you become a widow/widower.  Unless issues remain to be addressed by the court in order to properly close the case, the case will usually closed by the court upon notice of the death of the spouse along with the death certificate.

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

 


Do you really want an "aggressive" divorce lawyer?

 

Some divorce attorneys advertise themselves as "aggressive."  The question you may want to ask yourself is whether you really want an aggressive divorce lawyer and what you consider "aggressive."

Aggressive means different things to different people.  Here are a few things I have been told over the years when they described how they thought an aggressive lawyer should be and the term I think applies to their description.

  1. Responsive - I want my attorney who is going to address my concerns and protect my interests quickly.  

  2. Fighter - I want to see and hear my lawyer fighting for me this divorce.

  3. Whatever It Takes - The lawyer needs to do whatever it takes to get what I want in this divorce.

  4. Proactive - The lawyer needs to stay on the offensive. I want my lawyer to be a step ahead of the other side every step of the way.

In my opinion, the best way to hire an aggressive divorce lawyer is to know what you want and be able to explain what you want to the lawyer you are considering.  Aggressiveness takes many forms.  These are the four (4) most common examples I've heard over the years yet a caveat can be applied to each of them.

  1. Responsive lawyers are not necessarily aggressive. An efficient lawyer can respond quickly without necessarily being aggressive. The speed at which the attorney responds may not be as important as how the attorney addresses the issue at hand.  Most lawyers should try to be responsive to their client no matter how they practice.

  2. Fighter lawyers may sometimes appear aggressive simply because he or she knows that is what the client expects.  This is true even when an aggressive posture may not help the client's interests.  

  3. Whatever it takes lawyer may be a risky proposition.  Some lawyers may be willing to breach their professional code of conduct, exceed boundaries of morality and decency, or even break the law. The lawyer is an extension of you in the case.  Therefore, the lawyer's conduct reflects on you in your court case.  How you are viewed by the court in your case is important. If the lawyer's conduct is viewed poorly by the judge, the judge may hold you responsible.

  4. Proactive lawyers may be the safest bet when it comes to hiring an aggressive attorney. A proactive lawyer is likely to be responsive and will try to maintain an offensive posture in your case as the circumstances require it.  A good proactive attorney in all aspects of a case can be aggressive while curtailing behavior to insure appearances of respect and proper decorum both with the court, the opposing attorney and the opposing party while keeping good communication with the client. 

In most situations an experienced yet proactive divorce lawyer is a good balance for most divorce clients. The one thing client's must keep in mind is that a lawyer can only be as proactive as you allow him or her to be or to the extent you can afford him or her to be.  

It is very often the case that being proactive in a case to try to maintain a good position in the divorce proceeding is likely to be more costly than simply letting the case unfold. Therefore, if you have limited funds for your case a good proactive attorney will choose battles wisely to balance strategy with the client's financial situation.

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

 


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


No More Alimony Deduction on your Taxes! Why and What does it Mean to your Rhode Island Divorce?

IMG_4945
Alimony Deduction Gone

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

Under the Tax Cuts and Jobs Acts, alimony that has not been already been established by a Final Judgment or Final Decree of divorce or a settlement document incidental to a Final Judgment or Final Decree of divorce as of December 31, 2018 is no longer taxable as income to the payee receiving it, nor is it deductible from income by the payor spouse.

Alimony was previously deductible to the payor against their income and includable in income of the recipient payee.  This provided a modicum of fairness between the payor and payee.  The payor didn't have to pay the tax on the alimony monies being paid to the recipient payee because it was money the alimony payor wasn't able to keep.  By the same token the payee was held responsible for the tax on the alimony money being received but it was money the payee did not actually earn.

Why did our legislature change this long-standing deduction in the law? 

The answer?  Tax revenue.  The person paying the alimony in a divorce or separation (called a "Divorce from Bed and Board" in Rhode Island) proceeding was almost invariably the higher earner.  The person receiving the alimony payment was the lower earner.  Generally speaking, the payor of the alimony was then in the higher tax bracket and would end up paying more taxes on his or her income.   The recipient payee of the alimony was in the lower tax bracket and would pay less taxes on his or her income.  By eliminating the deduction, the taxes paid on the alimony will now be paid by the higher tax payer in the higher bracket resulting in more tax revenue to the government.

What could the removal of this deduction mean to your Rhode Island Divorce proceeding?

If you are the payor of alimony either by entering into an agreement with your spouse to pay alimony in divorce or separation settlement or by a judgement of the court that requires you to pay it, it could mean a greater alimony burden for you if the judge does not account for this new tax consequence because you will be responsible for both the out-of-pocket alimony payment as well as the taxes on those alimony monies at the end of the year based on your tax bracket for that year.'

Will the family courts change how it determines alimony based on this change in the tax deduction? 

It's unclear at this point how this will affect the courts legislatively, procedurally or administratively.  The hope expressed by some practitioners is that judges in Rhode Island and throughout the country will take the removal of this long-standing tax deduction into consideration for the payor when it comes to issuing judgments providing for alimony payments.  Since the tax burden can be significant depending upon the tax bracket and the amount of alimony that may be ordered to be paid, one would hope that the trend would be a reduction in the amount of alimony awarded.  By reducing alimony judgment amounts the court might normally have issued prior to the removal of the alimony deduction, a judge could fairly offset the payor's total alimony burden by taking into account this tax consequence which causes the payor to pay more because of the alimony judgement.  Since the spouse receiving the alimony is essentially receiving "tax-free" money and no longer has to pay taxes on the money received because it is no longer includable in income, it would seem more than equitable that the court make such an adjustment to the amount of alimony to account for the added tax detriment to the payor and the added tax benefit being received by the recipient spouse of not having to pay taxes on the alimony received.

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


What is the Best Way to Beat Child Support?

Rhode Island Child Support
By:  Christopher A. Pearsall, RI Divorce & Family Law Lawyer*

QUESTION:

What is the best way to beat child support?

ANSWER: 

There is no good way to beat child support. I agree with Attorney Andy Chen on Quora.com. I have seen many people try to “beat” child support ( by which I assume you mean that the person avoids having to pay child support without consequences). It never ends up well for that person.

Failure or refusing to pay child support often has many direct and indirect consequences, such as accruing interest at an exorbitant rate that keeps compounding, loss of your driver’s license, damage to your credit rating which prevents house purchases, car purchases, or even small personal loans, possible imprisonment, possible loss of your job, vengeful behavior from the child’s other parent or even from the child later in life.

People who try to beat child support NEVER end out better for it.

I understand that sometimes money is tight. I also understand that some people feel they have good reasons for trying to avoid or beat child support. However, in the end I have to wonder why someone would try to “beat” child support so they don’t have to pay anything.

Whatever the reason, if a person is the actual biological parent of a child then there is a legal, practical, and to many a moral obligation to help support a minor child. Minor children typically aren’t able to support themselves financially, which includes putting a roof over the child’s head with heat and electricity, food for the child to eat, clothing for the child to wear, etc…

It is important regardless of whether I am a lawyer or not that if we have played a role in procreating or adopting a child that each of us take personal responsibility for that role and help provide the basic necessities for the child. If any of us as people are not prepared to do that under any circumstances, then we should not perform the acts that result in procreation or adoption until we are prepared to undertake that responsibility and realize that it continues at least until the minor child is emancipated.

Remember, that opposing an increase in child support for justifiable reasons is not trying to “beat child support”, it is merely balancing the needs of both the parents and the child. In some cases, there are justifications before the court for temporarily or in the rare occasion permanently terminating child support to a minor child. However, trying to “beat” child support for a minor child you helped bring into the world for the sake of simply avoiding your obligation as a biological parent is neither a reasonable nor acceptable position. If this is the reason for your question, then the counter questions to you would be

  1. What do YOU mean by “BEAT” child support?
  2. What are your justifications (often confused with reasons or explanations which are not the same) for trying to “beat” child support.

In any event, unless you have viable legal justifications that can be argued before the court regarding child support, then it is never a good idea simply to try to find practical ways to “beat” child support. In the long run it never pays to try to “beat” child support.

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