Discover why calculating Rhode Island Child Support is more complicated than you think!

Child support

When a parent finds out that he or she is going to have to pay child support, the parent usually just wants a straight answer to the two questions below without any hassle or fuss. 

1.  How much will I have to pay?

2.  How often will I have to pay it? 

Many people think child support is both simple and easy to calculate.  In most cases, this is not true. 

I will give you a quick idea of why seeking out an experienced divorce and/or family law lawyer in Rhode Island is crucial to understanding how Rhode Island child support works and determining what the right amount of your child support obligation will be.

The second question is easier to answer than the first to answer and so I will address it first. 

2.  How often will you have to pay your child support?  Unless otherwise ordered by the court, child support is to be garnished from your paycheck according to the Administrative Orders of the Court.  Therefore, you typically have to pay it with each paycheck.  Therefore, if you are paid weekly then it would be taken out of your paycheck weekly.  If you are paid bi-weekly, then child support would be calculated for the amount of a bi-weekly payment and the bi-weekly amount would come out of your check. 

Moving on to the first question, "How much will I have to pay in child support?"  The answer is dependent upon the circumstances of each case yet even in the simpler cases it may require various disclosures of information in order to do the calculations and, frankly, sometimes the parties do not want to disclose the information necessary for a proper computation because they consider it personal to them or otherwise invasive.

Rhode Island has adopted federal guidelines.  These guidelines have been expanded by Administrative Orders issued by the Rhode Island Family Court.

Rhode Island Guidelines are based upon our state's Child Support Guidelines and one or more Child Support Guidelines Worksheets generated by the parties or the court depending upon whether the parties are represented by counsel or are acting as their own attorneys.   

        This not, nor is it intended to be, a full and comprehensive analysis of all the factors that can and should be factored into proper Rhode Island Child Support calculation.  Such an analysis would take far longer than the time available for a single article.

    However, this glimpse into the process should give you an idea as to why it is more complicated than you may think and why you should have an experienced divorce and/or family law attorney to assist you in calculating child support to avoid overpayment or underpayment depending upon which party you may be. 

  • GROSS INCOMES -  In order to calculate child support, the gross income of each of the parents of the minor children must be disclosed.   If one or both parties are fully or partially self-employed then sometimes the gross income must be proven if the amount of a parties' gross income is challenged by the other parent as being underestimated or misrepresented.  This may require the production of paystubs, employer payroll records, business records (if self-employed) or bank statements.
      
  • WORK-RELATED CHILDCARE EXPENSES - Once the gross income of each of the parents is determined, each parent receives a deduction from their gross income for their percentage of the work-related childcare expenses that are reasonably necessary for either or both parties to earn the income that is supporting the children after deducting the Federal Childcare Tax Credit that the parent with physical custody of the children receives.

    For example, if the total work-related childcare expenses for the year are $7,800 and the custodial parent got a $4,000 Federal Childcare Tax Credit then the remaining $3,800 would be the amount the deduction applies to.  If the non-custodial parent makes 70% of the combined income of the parties and the non-custodial parent makes 30% of the combined income of the parties then the non-custodial parent receives a deduction from gross income of 70% of $3,800.  The custodial parent receives a deduction from gross income of 30% of the $3,800.  The proper calculation requires the disclosure of the total actual childcare costs as well as the federal income tax return of the custodial parent to verify and/or confirm the Federal Childcare Tax Credit.
      
    However, the work-related childcare expense deduction from each party's gross income is limited to the amount of work-related childcare expenses over and above the amount of the Federal Childcare Income Tax Credit the custodial parent receives on their Federal Income Tax Return for that child(ren). Therefore, the federal income tax return of the custodial parent should be disclosed to determine how much of a deduction the custodial parent received (or could have received) for the minor children on their taxes. If this is not done, the child support amount becomes skewed and overly inflated against the non-custodial parent who may end up paying more child support needlessly.

  • PRE-EXISTING CHILD SUPPORT PAYMENTS - If a party already has any pre-existing court orders of child support for other children, then generally he or she is allowed a deduction for the amount of that child support ordered it if is being paid.  However, the Rhode Island Family Court judge may have the power in his or her discretion to disallow all or part of the pre-existing child support order deduction from the party's gross income if the parent is not paying the order or is only partially paying the order.  If the party is not paying the order at all, he or she may well not receive any deduction.  If he or she is paying only a part of the order, then he or she is likely to receive only a deduction for that part of the order that was actually paid.  Therefore, proof of the order, as well as the amount paid toward the order, may be required in order to justify the payor receiving the deduction against the gross income.
  • HEALTH INSURANCE DEDUCTION - Additionally, if a party pays out-of-pocket to cover the children on his or her health insurance, then that party is also allowed a deduction from his or her gross income solely for the amount of the insurance premiums that he or she pays for the minor children. Once again the amount of the health insurance that is specifically paid and attributable to the coverage for the minor children must be disclosed (and in many instances proven if the other party objects to the amount of the deduction or whether it actually relates solely to the children for whom child support is being calculated) in order to receive this deduction against gross income.

  • ADDITIONAL MINOR CHILDREN - If either party has additional minor children, then he or she is allowed a deduction from his or her gross income for that minor child(ren) up to a maximum of 50% of the child support that would be paid for the minor child(ren) if a child support order had been generated by the court. However, to properly calculate this credit the income of both natural parents or legal guardians of each additional minor child needs to be disclosed (and in many instances proven if the opposing party objects to the amount of the deduction) as well as the childcare expenses, if applicable, and the custodial parent's federal income tax return to verify the Federal Childcare Income Tax Credit. Even though an additional child support guideline worksheet is not required to be submitted to the court for approval, it should be created by the parties and/or their attorneys to ensure the deduction for any additional minor children is accurate.

    If there is no court order for either party’s additional minor children and the party seeking the deduction for the additional minor child is not living with the children, the deduction for the additional minor children may not be allowed as there may be no evidence of support for the additional minor children and absent evidence that the additional minor children are being supported by the party (or agreement between the parties that the party may have the deduction), the deduction need not be given.

This is just a partial example of how Rhode Island Child Support is calculated. I have not included the computations for a Cash Medical Contribution which may be required if the minor children are on state assistance, nor have I included any of the optional deductions that could apply in the discretion of the court, including pension or retirement payments, life insurance premium payments, parent’s extraordinary medical expenses, income tax exemptions/deductions or payments of assigned marital debts in divorce cases.

It should be noted that Rhode Island Child Support is all subject to the approval of the Rhode Island Family Court judge presiding over your case and that it is set up as the “minimum standard” for child support to be used by the court. However, the family court justice has the discretion to increase or decrease this child support based upon findings of fact that warrant a modification upward or downward.

This example deals with less than half of the situations and factors that may occur in child support cases in Rhode Island.  This article does not deal with incarceration of one of the parties, social security disability payments, supplemental security income payments, imputed income to a parent who is not working, shared placement situations, common self-employment issues relating to gross versus net income, the self-support minimum allowable to child support payors, or federal laws relating to the maximum amount that may be garnished by an employer.

You should be able to tell from this small excerpt that child support can easily morph into a complex calculation that without the help of an experienced Rhode Island divorce or family law lawyer could leave a custodial parent overpaying child support in the long term.  In the converse, an improper calculation could leave the custodial parent being underpaid in the long term.

Lastly, in my humble opinion, you should never rely upon an online calculator to determine child support accurately.  The guidelines change, the forms used for calculating child support also change, and new Administrative Orders issue that may change child support calculations. 

Chances are the programmer of an online calculator for child support was not a Rhode Island family law attorney.  Therefore, you have no idea if the programmer of the website (who is very likely not a lawyer at all) got the calculations correct or not or whether or not factors have been left out.  You also don't know if a lawyer actually tested the programmed calculator to make sure that each variation of calculation (i.e. every different fact scenario) yielded the correct result.  Since this would require a lawyer to do each calculation manually, it is unlikely that a lawyer would take such a substantial amount of time to do so.


Can you use a Keylogger to uncover a spouse's infidelity or hidden assets?

Keyboard-70506_640You and your spouse may be headed for divorce. Your spouse is on the computer frequently but shuts off the computer or the monitor whenever you come near. You become concerned that your spouse may be having an affair or may hide marital assets. Your spouse hasn't provided you with the websites he/she visits or his/her login information for any sites or their email.  You mention this to a friend who asks if you have considered using a keylogger.

A keylogger is a small computer program or app that is often installed on a computer (though as of this writing their are keyloggers for smartphones) that records every keystroke made by the users of the computer and stores that recording in a file on the computer. Many keyloggers also take periodic snapshots of the user's computer screen every few minutes.  Quite a few keyloggers then email the file with recorded keystrokes and the snapshots of the computer screen to you without anyone's knowledge.  The question remains whether you can use keyloggers to conduct surveillance on your spouse.

There is no specific RI Supreme Court case law addressing this answer from a divorce perspective.  Yet there are several considerations regarding existing law that should be made and lead me to my own conclusion.

The existing law considerations for using a keylogger on a computer to conduct surveillance on your spouse relate to the Federal Wiretapping Act (FWA), the Rhode Island Wire Tapping Act (RIWA), the federal Stored Communications Act (SCA) as well as laws relating to the violation of a person's right to privacy.

Though I have reviewed each of the Acts above, the Federal Wiretapping Act (FWA), when broken down into its component parts is the most detailed as it relates to private individuals and electronic communications, and provides, that the FWA with limited exceptions prohibits individuals from;

1) intentionally intercepting any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

2) intentionally endeavoring to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

3) intentionally procuring another person to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications. 

4) intentionally procuring another person to endeavor to intercept any electronic communication using any device or apparatus which can be used to intercept such electronic communications.

5) intentionally disclosing to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.  (namely, 19 USC § 2511(1) - the prohibitions subsection).

6) intentionally endeavoring to disclose to any other person the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

7) intentionally uses the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection. (namely, 19 USC § 2511(1) - the prohibitions subsection).

8) intentionally endeavors to use the contents of any electronic communication when they knew or had reason to know that the communication was intercepted in violation of this subsection.

The criminal punishment for violation of this Act is to be fined pursuant to the FWA and/or imprisoned for a period of not more than five (5) years. The FWA also provides that a person whose electronic communications are intercepted in violation of the FWA may proceed with a civil action for injunctive relief, civil and punitive damages, attorneys fees and costs.

These are the summarized provisions only for the FWA.  This is fairly restrictive and the definitions are very exacting.  The RIWA had the power to make narrower restrictions than the FWA.  Yet an analysis of the RIWA here is not truly necessary in my humble opinion given the extensive federal prohibitions. The only issue that arose in my analysis was whether a keylogger "intercepts" a transmission that passes through a wire related to interstate commerce.

In reviewing this particular aspect and analysis of the FWA as it related to keyloggers, I found a very persuasive though not legally controlling case heard in the Kent County Superior Court in the State of Rhode Island in the case of Williams v. Stoddard Case Number P2012-3664.  Based on the analysis in Williams regarding the violation of the FWA, RIWA, and the SCA when a wife used a keylogger to obtain her husband's login credentials and accounts and then accessed those accounts to get information for her divorce and for use against her husband's employer the North Kingstown Police Department.  The Court found in that case that the wife did, in fact, violate the FWA and the RIWA by her use of the keylogger and did, in fact "intercept" the communication using the keylogger and the subsequent disclosure of the contents of the information to her husband's employer.  The RI Superior Court also found that the wife was subject to a lawsuit for compensatory and punitive damages as a result of her violation of the FWA and her spouse's right to privacy. 

In Williams no distinction was made either by the court or by the parties as to (1) who owned the computer, or (2) whether the wife had the right to access or use the computer upon which the keylogger was installed, or (3) whether the computer was consistently connected to the .  Whether this was an oversight or a non-issue as it related to the analysis by the parties or the court is unclear.  However, the analysis in the case is consistent with the language of the FWA and the rule of statutory interpretation that the court in arriving at the meaning of a statute is to, if at all possible, give efficacy and meaning to a statute based upon its intent.

Ultimately, it is my conclusion based on the current language of the FWA and the persuasive case law combined with a review of the language of the RIWA and the SCA that the use of a keylogger to conduct surveillance on your spouse on any computer constitutes the unlawful interception of electronic communications in violation of, in the least, the FWA and very likely the RIWA and thus is illegal and subjects persons using keyloggers or having others use keyloggers for them of being charged criminally and subjects the person to criminal fines, penalties and/or incarceration.

When in doubt, use legal means to conduct your surveillance or obtain the information necessary for your divorce case and consult an experienced attorney as to whether the manner you want to use to obtain information on your spouse is legal before attempting to use it.

 

 


How do I start a Rhode Island divorce proceeding?

Divorce_womanQUESTION:  How do I start a Rhode Island Divorce?

ANSWER:  First, let me say that personally and professionally that with what I have learned in almost two decades practicing divorce in Rhode Island, I do not recommend filing or putting through your own divorce. In the very least, you should get legal coaching/advice from a lawyer who regularly practices Rhode Island divorce before you fill out and file the paperwork.  Every divorce is not the same, no matter how simple you may think it is.  The court clerk's office will provide you fill in the blank forms and they may give you samples of how other family court litigants might fill them out.  They may even give you general questions to give you an idea of what a judge might be interested in knowing at the time of your divorce hearing.  However, every (and I do mean "every") divorce is different and no form is a substitute for legal advice. The forms provided by the courts are intended to follow the minimal guidelines provided by law.  They are not intended to protect your rights nor should you expect to receive instructions on what to fill in to make sure your rights are protected.  It is the obligation of each person or their attorney to protect your rights by filling in the form or even by modifying the form if necessary with the correct legal terms so that your rights are properly protected.

To start a divorce proceeding you need to get what I call a "divorce filing packet" from the Rhode Island family court.  You can get the documents that comprise this packet at the domestic clerk's office. This packet consists of the following documents.

1.  Civil Case Cover Sheet;

2.  Complaint for Divorce/Complaint for Divorce from Bed and Board;

3.  Statement Listing Children;

4.  DR-6 Financial Statement of Assets, Liabilities, Income, and Expenses; and

5.  Four (4) Language Notices - English, Portuguese, Spanish, and Cambodian

To start your divorce, you fill out the foregoing documents and file them with the Domestic Relations Clerk's Office in the Rhode Island family court in the county where the Defendant resides within the state. If the Defendant does not reside in Rhode Island, then you file in the family court in the county where you reside, provided you have been a resident and continuously domiciled inhabitant of the State of Rhode Island for at least one year before you file.

When these documents are filed correctly with the family court you will pay a mandatory court filing fee which may include a technology surcharge which currently amounts to $145.32 as of March 11, 2019.

Upon filing, you must check back with the court to find out if your filing has been accepted.  Once accepted, the court generates a Summons with Proof of Service and Notice of Automatic Orders.  You then must arrange to make proper due process service on the Defendant pursuant to Rhode Island law and the Rhode Island Rules of Domestic Relations Procedure. Service requirements vary depending upon whether the defendant is within Rhode Island, in another state, in another country or in the military.

Generally speaking, this is how a divorce proceeding or a legal separation proceeding is started in Rhode Island as of March 11, 2019.


What factors does a Rhode Island family court judge consider when a parent wants to relocate with a minor child?

RelocationA relocation case in the Rhode Island family court typically occurs when one parent who either has primary physical placement or joint physical placement of one or more minor children wants to relocate with that minor child outside the state.

Relocation cases are very often opposed and a fair number of them go to trial unless you can reach an agreement or accommodation with the non-relocating parent as to how and when they will have visitation or parenting time with the minor child or children and how transportation might be arranged, etc..  In joint physical placement cases where each parent has the minor child or children 50% of the time, if the relocation is a significant distance such that their can no longer be joint physical placement, then often times a trial is inevitable.

During a trial both sides present evidence regarding the children, the family, schooling, relationships, etc.. that typically fall into the factors set forth by the RI Supreme Court in Dupre v. Dupre, 857 A.2d 242, 257-60 (R.I. 2004) that judges must consider in relocation cases.

The relocation factors judges must consider are as follows:

1.  The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent.

2.  The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.

3.  The probable impact that the relocation will have on the child's physical, educational and emotional development. Any special needs of the child should also be taken into account in considering this factor.

4.  The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements considering the logistics and financial circumstances of the parties.

5.  The existence of extended family or other support systems available to the child in both locations.

6.  Each parent's reasons for seeking or opposing the relocation.

7.  In cases of international relocation, the question of whether the country to which the child is to be relocated is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction will be an important consideration.

8.  To the extent that they may be relevant to the relocation inquiry, the Pettinato factors [1] will also be significant. 

Typically relocation cannot be for a frivolous purpose or to deprive the other parent of their placement or visitation rights.  Ultimately the court will look so see where, how and why the relocation is taking place and what its anticipated affect is on the child and parents as well as extended family relationships and support systems.

Since relocation almost invariably relates to the best interests of the minor child, the parent seeking to relocate and the non-relocating parent should also consider and present evidence to the court how the relocation will affect the best interests of the child as set forth in Pettinato to the extent that the Dupre relocation factors do not already address those best interests.

[1] Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) (Sets forth for the seven (7) though non-exhaustive list of factors that must be weighed when determining the best interests of the minor child.)

 

 

 


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