Rhode Island Divorce Tips

By: Christopher A. Pearsall, RI Divorce and Family Law Lawyer*

QUESTION: 

Can my ex-spouse sign me up to be billed for childcare without my permission?

DETAILS:

My ex and I have an order to split child care 50/50 for her work and education. She has gone and signed me up to be billed directly by the child care provider without my permission. She refuses to provide me her schedule of work and school. But the bills provide no information other than payment amount. 1. Is it legal for her to sign me up for a payment account without my signature?  2. What is my recourse if she decides to use the childcare for personal reasons and they bill me for half?

ANSWER:

Under Rhode Island law, your ex-wife has no legal right to commit you to any payment agreement with the childcare establishment based on the family court order as you describe it.

The answer to your first question is "No."  If she actually signed your name to a contract or to some other document to bind you to payment to the childcare provider without your authority or knowledge, then your ex-wife committed the crime of forgery and she can be prosecuted for that.

The answer to your second question is that your recourse is to take your ex-wife back to family court and file something such as a motion for credit for any monies you paid for one half of whatever time was spent on personal time rather than for work or education. 

You will need to keep in mind that if you take your ex-wife back to court on the motion I suggest above then you will have the burden or proving by clear and convincing evidence that your wife used the child care for strictly personal purposes and that you overpaid as a result and should be entitled to a credit.  You would likely have to prove when it was personal, how you know it was personal and what the personal activity was, how much was charged for that personal usage and how much you were overcharged for that personal usage on each occasion.

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Authored By:  Christopher Pearsall, RI Divorce Attorney
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Question: Can the custodian parent move with with children to another state because of a new job if there is a court order stating that Rhode Island is the home state of the children?

Reponse: No. If you have joint legal custody or this would prohibit you from having your scheduled parenting time with your children, then a parent is not supposed to make that unilateral move.  A parent with physical placement of the children must file a Petition for Relocation / To Move Out of State with the Minor Child(ren) in the Rhode Island family court, particularly if Rhode Island is stated in the Court's Order that Rhode Island is the "Home State" of the minor child(ren).

However, some parents do it just the same and file the petition afterward. Of course after the fact it is very hard to expect the court to order the parent to move back into the State of Rhode Island with the children.  However, it is possible.  It is also possible that if the court finds that the move was not in the best interests of the minor child(ren) if the parent makes the move first, it is entirely possible that the family court judge could find that is it in the best interests of the minor child(ren) to be placed with the parent who remained in the State of Rhode Island.

If you suspect that the parent would leave with the minor child(ren) to another state, it is best to be proactive and file an action in the family court with an Ex Parte Motion and supporting affidavit demonstrating why you have the reasonable belief that the custodial parent will take the child(ren) to another state.  It is possible that the Court will issue a Temporary Ex Parte Order based upon your initial Ex Parte Motion if the court doesn't issue an immediate Order prohibiting him or her from moving to another state. 

Typically the Ex Parte Motion asks for immediate emergency relief based upon what you know and represent to the court in your affidavit.  However, there must be an underlying action filed for permanent relief.  Very often the underlying action is a Motion for Change of Placement or a Motion to Preclude the Relocation of the Minor Children Outside the State.  The grounds used are that it is likely to cause "irreparable harm" to the child(ren) based upon their strong psychological relationship and ties with Rhode Island, including the other parent, friends, extended family, church, extracurricular activities, etc. The same grounds might be used, in part, for a change of placement of the children to the non-custodial parent.  You would obviously be asking that an Emergency Order immediately issue until such time as the custodial parent files a motion for the relocation and the matter can be heard on it's merits. This is not something that is easily done. You only get one shot at it and if you blow it you may find that if you are the non-custodial parent that suddenly your children are gone to another state despite your attempts to prevent it. I strongly recommend seeking the assistance of an experienced family law lawyer.

Best of Luck to You!

Sure, you can do your own Rhode Island divorce all by yourself.  You have the right to represent yourself.  You know your assets, debts and children better than anyone else so why not, right?  That's what Rhody D. Vorce thought.

Was his Rhode Island divorce successful?  What is your opinion of his divorce after I give you my professional thoughts?

Rhody was married to Brenda for 27 years.  They have two children over the age of 18, Charles and John and one daughter, Sarah who is just about to turn 18 and graduate high school.  Rhody moved out of the marital home while Brenda, John and Sarah continued to live at the house.  Their house was almost paid off.  The house was assessed for tax purposes at $320,000 with only $6,820 to pay on it (about 9 months of payments)  Both Rhody and Brenda have worked all of their lives.  Rhody has a 401k Retirement Plan with his employer and about $684,000 accumulated.  Brenda has a pension plan accumulated through her employer but its value is unknown.

Rhody feels badly because he is the one who wants the divorce. He simply doesn't have the same feelings for Brenda anymore and he wants to move to California.  Brenda doesn't want the divorce and she is very upset.  Rhody tells her he's going to make sure she is fine.  

Brenda is worried about John and Sarah.  John wasn't the greatest student.  He didn't want to do anything after high school and he has no practical skills for work.  He knows how to play XBox 360 games well and he delivers pizza during the summer and shovel's snow during the winter for spending money.  He doesn't make enough money to support himself and Brenda believes that she and her husband owe it to John to help him out until he gets on his feet.  Rhody feels differently about this because John is almost 23 and had the chance to go to college and trade school and didn't want to take advantage of either of them.

Sarah is doing well in high school and wants to go to Eastman College. She has already been accepted.  Sarah excels in nature and portrait photography because of her unique eye and understanding of both film and digital cameras. Sarah has been working at a photography studio for two years and makes enough money part-time to continue her photography on mountain climbing excursions which she pays for herself.  Sarah is particularly excited about college but has not received any scholarships yet.

Rhody gets a lot of pressure from Brenda to give her the house, leave her pension alone, and give her 20% of his 401k so she can maintain the house and fund Sarah's college and get John on the right track.

In return for just asking for 20% of Rhody's 401k in the divorce, Brenda tells Rhody she needs a little help so asks him to consent to $100 per week in alimony for four years so Brenda can accomplish all this until Sarah is done college.  Rhody doesn't want to agree to the alimony.

Brenda tells Rhody that since he can deduct the alimony on his taxes and since she has to report the alimony as income that it comes out to much less than the 30% of Rhody's 401k that she will leave untouched.  Rhody agrees.

Rhody settles the case himself as his guilt gets the better of him and he signs over the house to Brenda and draws up the papers exactly as he discussed with Brenda.

Rhody and Brenda plan on going to the Rhode Island Divorce hearing themselves and get it over with just by following sample questions they picked up for the proceeding.

At the friendly Rhode Island divorce hearing (called a "Nominal Hearing") Rhody testifies that he has agreed that Brenda will receive the alimony for four (4) years at $100 per week and that it is in their agreement.  Brenda agrees that Rhody testified correctly and that Rhody has already signed over the house to her and she will refinance immediately to get Rhody off the mortgage.  They ask the court that no child support be set for Sarah because she is almost 18 years old.

The temporary order known as the Decision Pending Entry of Final Judgment is prepared by Rhody and approved by the court.  Just after Sarah graduates from high school the Rhode Island Family Court Judge signs Final Judgment of Divorce and Rhody breathes a sigh of relief.

Thirteen (13) months later Rhody finds out that Brenda has been in a very serious accident.  She is right handed and will never be able to work again because she has lost the use of her right arm and hand.

Rhody is upset for Brenda but he is even more upset when two months after the accident, he is served with Rhode Island family papers.  Brenda is seeking that the alimony she is paid be increased to $700 per week and be extended for at least 6 years.  

Rhody is in shock.  He tries to call Brenda about their divorce agreement but she won't take his calls.  Rhody shows up at the hearing.  The Rhode Island family court judge calls the case and Brenda is sitting their slumped to one side as her lawyer explains that she will be make a case for additional extended alimony.

Rhody interrupts Brenda's family court lawyer and explains to the judge that she can't do this because their divorce agreement prohibits it.  The judge is patient and allows Rhody to hand her the agreement.  After looking at the agreement for a few minutes the Judge offers to give Rhody time to engage a lawyer about the agreement and to give him a reasonable defense.  Brenda's lawyer objects but the Judge states that she will be giving Rhody an opportunity to get a lawyer under these circumstances.

Rhody is concerned that something is wrong with the agreement he drew up for his divorce so he tells the judge that he would like time to get a divorce and family law lawyer.  The matter is continued for three weeks.

Rhody meets with several lawyers only to discover that he made several grave mistakes in the agreement and during the hearing and now it is very clear that he needs a lawyer.

The parties end up settling the alimony action with a compromise in which Rhody agrees to give Brenda another 10% of his current 401k amount but his lawyer works it out so that it is to be considered alimony so Rhody can deduct it on his taxes and Brenda will have to report it as income.  Rhody is not happy and Brenda is especially unhappy because Rhody has taken loans on his 401k to start his own business and the amount is not nearly the amount she had wanted.

What were the grave mistakes? One of them is apparent from this scenario?  Do you know where you would find the other two mistakes?

If you are considering doing your Rhode Island Divorce Yourself, without receiving legal advice from a lawyer who knows your situation, you take risks!  Sometimes those risks are huge and you don't even see them.

All it takes is one or two wrong or missing words that many attorneys are well aware of when it comes to alimony.

If you have a short term marriage where both parties are working and there are no children, no assets and no debts between the husband and wife, then you have a good chance of a successful divorce proceeding if you get some proper legal advice or coaching from a licensed divorce and family law professional in Rhode Island.  

If your marriage goes beyond that, and you have a children, a home, a spouse who has not worked or is injured, retirement plans, a long-term marriage, addictions or any other number of factors that affect your life significantly, then you need to know the problems and pitfalls you may be faced with.

Don't be caught unaware.  Without proper legal advice from a fully informed and licensed and experienced Rhode Island divorce and family law professional, your hearing may seem to go perfectly fine, your agreement may have been accepted by your spouse and the court, and the documents you draft for Orders and Judgments may be accepted by the court, but they may all be a time bomb waiting to blow up in your face.

Get some professional coaching and legal advice from a Rhode Island Divorce and Family Law Lawyer or Attorney.  Don't be like Rhody and just cross your fingers and think you saved some money by not hiring a lawyer.  Too many people think, "It will never happen to me."  Until it happens to them and it's just too late.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Location: Rhode Island

Physical Child Custody Question: I have sole physical custody of my two children and we share joint legal custody. We have been divorced for three years . I currently live in Lincoln, RI and would like to buy a home in Franklin, MA. It is 17 miles away and a 25-30 minute drive. Can the father of my children prevent me from moving such a short distance? There is nothing in our divorce decree that addresses this issue. He currently lives across the street from me and does not want to drive 25 minutes to pick them up or drop them off. I have agreed to meet him half way for visitation but he still has contacted a lawyer. Does he have a valid case?

Rhode Island Custody Lawyer Answers: 

Yes, your ex-husband can validly petition the Rhode Island Family Court for an Order preventing you from moving with the Minor Children out of the state. It is not so much the distance that is the issue. The issue arises in the fact that you want to move the Minor Children outside the geographical boundaries of the State of Rhode Island. It is irrelevant that there is nothing in your divorce decree or any marital settlement agreement that you may have had that addresses the issue. Courts and parties are rarely able to address every type of situation that might arise in a family after a divorce occurs, although this issue is a bit more common. However, your ex-husband should make sure he gets an experienced Rhode Island Divorce and Family law attorney to advise him regarding this issue. 

Why do I say this? 

Because the information he would receive would be substantially in your favor. Rhode Island case law is fairly clear that absent your ex-husband proving that you are moving for a vindictive reason such as to deprive him of his visitation or to make things more difficult for him, then as the placement parent (parent with physical custody) you only need to demonstrate to the court that you have a good reason for moving with the children. 

The reason can be anything from buying a house for the children, moving for a new job opportunity, better school systems for the children in the new area you would move to, a better neighborhood for the children, one or more family members live in the new area you propose to move to, etc... but all your reasoning should collectively be for the benefit of the minor children.

Generally speaking a "good reason" seems to be any reason that makes sense for the best interests of the children and you as the placement parent, other than one that vindictively is designed to hurt the other parent in some way. Therefore, even though your ex-husband has a valid case he can make before the court, based upon the facts you have provided here, he is unlikely to prevail in preventing you from moving with the children unless he can prove the vindictive reason for moving the children. 

Helpful Family Law Tip: 

To protect yourself, put your offer to meet him half way for his visitation and your desire that you don't want his relationship with his children to change in writing and spell out all the excellent reasons you have for moving with the kids and how it would benefit them. This might prove to be an excellent piece of evidence you might be able to present to the court at a later date if you need to.

I wish you the very best of luck.  I have addressed this issue over the years and it is one I am well versed in.  Your greatest challenge is not your legal issue.   

If you need further assistance, do not hesitate to contact me at (401) 632-6976 or review one of my helpful Rhode Island Divorce and Family Law Websites listed on this page.

Warm Regards, 

Christopher A. Pearsall, Esquire

Rhode Island's Only Full-Time Divorce Lawyer and Family Law Coach*

* Note: The RI Supreme Court licenses all attorneys in the general practice of law and has no procedure for specialization or recognition in any area of law.