Rhode Island Divorce Tips

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

Divorces come in all shapes and sizes.  Some spouses are still talking to each other while others are at each others throats.  In some marriage relationships one party made the money while the other party took care of the household and may have been the primary caretaker of the children.  Still others find both spouses working with one being a spender and another person being a saver.  The differences between marriage relationships are just as diverse as the divorces that arise out of those relationships.

Yet, even in divorce it is often important to be practical, realistic and optimistic.

For instance, in Rhode Island you need to understand that there are realistic standards that govern many divorce situations such as the division of assets.  Though Rhode Island is an equitable division state (not to be confused with an "equal" division state), the law is fairly practical when it comes to many situations. 

One such instance is when two people have separate bank accounts with their own separate funds in them.  Then, those two people get married.  Upon getting married, many spouses often put their monies into a joint account that has both of the parties' names on them.  Those funds then become "marital funds" in the event of a divorce and they are divisible by the court in their entirety regardless of the length of the marriage, unless the judge does not find the division after a trial to be equitable. 

For this example we will use funds in bank accounts.  Bill has $23,000 in his own account.  Tina has $5,000 in her own separate account as well.  They get married.  Bill puts Tina's name on his account.  Tina moves her $5,000 into what is now their joint account and she closes her separate account.  Unfortunately Bill and Tina may have jumped the gun and married too soon and they quickly find that they are incompatible and file for divorce within two (2) years.

Bill files for divorce.  The law is practical and realistic when it comes to the bank account which has $38,000 at the time of the filing.  It is in a joint account and therefore it is marital money to be divided between the parties. 

The law in Rhode Island provides that when you enter into a joint account with someone, unless it can be shown that the name of one of the spouses was placed on the account purely as a matter of convenience that in fact, by having a joint account each person is gifting half of the money they contributed to the account to the other spouse.  Thus, the entire account actually belongs to Bill AND it belongs to Tina.

In a divorce situation, if Bill and Tina are reasonable with one another and are still talking with one another then it would be an optimistic mindset and position to take that Bill should get back the $23,000 he had before this short marriage and Tina should get back her $5,000 and the parties should split the remainder equally.

However, if Bill and Tina are not getting along and either Tina or Bill intend to be vindictive that they are not bound by that optimistic perspective.  Either one of them can endeavor to enforce the practical laws of Rhode Island and demand that the entire account of marital monies be divided equitably.  Many times, equitably will turn out to be an equal division of monies absent some mitigating factor such as an infidelity that caused the breakdown of the marriage or dissipated the marital assets.

It is important, however, that even though it is good to be optimistic in a divorce situation, it is just as important to be realistic.  If you have placed monies in a joint account, then you have created marital funds and you have no right or entitlement to get the monies you had before you married your spouse back.  They are no longer premarital once they enter a joint account.  Acceptance of the fact that this may be a realistic decision that a judge might easily come to because of Rhode Island's laws regarding divorce, marital assets and joint bank accounts will help you prepare for an outcome you may not be happy with but which you may have no choice about.

In your divorce, be practical and realize that laws govern what you have done with your assets, by getting married, and during your marriage.  You need to be realistic and accept that laws will govern many situations in your divorce that you may not agree with and may be out of your control.  No doubt if you were Bill and you expected to get your $23,000 back, you might be extremely unhappy if the judge were unconcerned about the short length of the marriage and simply applied the principle of a joint bank account to your case giving Tina half of everything in the account. 

What may not seem fair to you in your divorce may be a situation that has often been spelled out by years of law not just regarding divorce but regarding banking or property law as well.  The judge is bound by the law to be applied and unfortunately what may seem an unfair result to you or I in any particular divorce case often has a broader rule of law behind it that is being applied.

Marriage is an important decision as are what we do with our assets and debts during the marriage.  It is a contract with repercussions that we often do not appreciate until we are in a divorce and it is too late.  If you are contemplating marriage, it is not a bad thing to be aware of what may happen in the event of a divorce and how the law may treat what you do.  

Be optimistic but practical and realistic!  In the end, for all of us ignorance of the law is never an excuse... even in a divorce.

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Atty Chris Pearsall

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

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Every Rhode Island divorce is based upon the facts of each particular case.  Your case will always be somewhat different from some other person’s case. One of the challenges of being a good attorney is often explaining to clients that relying upon what their friends or family have experienced in their divorces may not be the way it will work in your case or the way the law may or may not work in your case.

Let me give you an example.  

THE CASE OF THE DISNEY COLLECTIBLES

Pamela went to Attorney Kimball for simple divorce from her husband, Raymond.  It quickly became hostile when Raymond discovered that Pamela was dating before she even filed for divorce.  Raymond was a good man but he became angry and wanted whatever the law would allow him from the marital estate.

Pamela and Raymond didn’t have any real estate, children, retirement plans, and little if anything in their bank account. However, Pamela had owned a set of Disney Collectible Glass figurines prior to the day she married Raymond.

ATTORNEY KIMBALL FOR PAMELA'S POSITION

Attorney Kimball argued on Pamela's behalf that the substance of the Disney Collectible figurines were bought before the parties married and that she owned those outright and had the purchase receipts.  Attorney Kimball also argued that Raymond was not entitled to any of the figurines or any appreciation in their value because the collection was owned prior to their marriage and Raymond had gifted her most of the figurines that were added to their collection after they were married were gifts from Raymond to her.  Pamela’s lawyer claimed that this was a simply premarital collection and should be over and done with as "premarital" and Pamela's sole property outside of the power of the family court to distribute.  The argument was direct and commonsensical.

ATTORNEY PEARSE for RAYMOND'S POSITION

Raymond hired Attorney Pearse to get his fair share of the marital assets, in particular the Disney Collectibles collection.  His client wanted his fair share of the collection so Attorney Pearse spoke to Raymond and got more details.  Attorney Pearse claimed that Raymond was entitled to at least ½ of the collection. 

Pamela was livid.  How in the world could Raymond claim that he was entitled to at least half of the collection when the general rule is that items owned prior to the marriage belong solely to the person who owned it before the marriage. 

Here is where the different facts of each person’s case come into play.  Sometimes it only takes one fact to make a difference.

During a hearing specifically about "The Disney Collection," Attorney Pearse argued that shortly after they were married, Raymond became interested in collecting Disney Glass Collectibles not simply as a hobby but as an investment.  Attorney Pearse brought to the court's attention that Raymond and Pamela pooled their monies during their first Christmas and bought a rather large and expensive circular display case to hold and protect the collectible figurines.  This case became the centerpiece of their entire apartment.

Attorney Pearse also brought to the court's attention that the couple physically arranged all of the collectibles in the case together. 

TESTIMONY - THE DEVIL IS IN THE DETAILS

During the hearing various things were testified to about "their collection" as follows:

1)  Pamela and Raymond were concerned about the collectibles being stolen so Raymond took out a renter’s insurance policy to protect all of the collectibles. 

2)  Pamela had an alarm system installed for extra safety. 

3)  Every year Raymond and Pamela each bought more collectibles for what they each testified to was "our collection."

4)  They both picked out the disney collectible figurines together, purchased them together and paid for them together. 

5)  They also gave each other disney collectible figurines as gifts for birthdays, Christmases and their anniversary. It was agreed that they both added these gifts to their collection.

DISAGREEMENT OF THE PARTIES

Attorney Kimball argued for Pamela that those facts were irrelevant to "her collection" that Pamela had accumulated before they were married. 

Attorney Pearse argued to the contrary, they were crucial to the question as to whether the court should consider them premarital or not.

THE COURTS FINDINGS

The family court judge found that while the original collectibles Pamela purchased might well have been premarital at one time, they changed their character from premarital to marital by the way they were treated by the couple, particularly Pamela. Specifically the court found various findings from the testimony and arguments of counsel as follows:

1)  Both parties referred to the Disney collectibles as “Our Collection” and not as their own separate collections or collectibles. 

2)  Both parties bought the extravagant furnishing they used to hold the collection.

3)  Both parties protected the entire collection with renter's insurance and a security system that were both paid for with marital monies earned by the parties. 

4)  Together the parties added to their collection using marital monies. 

5)  The collection was, by agreement, the centerpiece of their apartment and it was an integral part of their married life and something they did together as an enjoyment, hobby and investment.

ATTORNEY KIMBALL MAKES AN ALTERNATE ARGUMENT FOR PAMELA

Attorney Kimball argued that in the very least Pamela’s original collectibles should be considered premarital and not subject to any division by the Rhode Island Family court in the divorce proceeding because they were purchased prior to the marriage and can be proved by receipts.  The judge disagreed, stating that simply making a purchase prior to the marriage is not a single determinative factor.

ATTORNEY PEARSE SUPPORTS THE COURT'S DETERMINATION FOR RAYMOND

Attorney Kimball agreed with the court and reminded the court how both parties (and even legal counsel) referred to it as either "their collection" or "our collection" and treated it not as individual units or sections but as a single unified "collection"  belonging to both of them.  

Attorney Kimball reminded the court that Pamela could have done something to segregate or protect the figurines purchased before the parties' marriage but she did nothing whatsoever to protect them.  Atorney Kimball argued that by the very way that Pamela allowed the collection to grow, treated it as a central focus of their life, agreed with Raymond that they should protect the entire collection with renter’s insurance as if the collection were an investment, and treated the collection as a single unit thereby demonstrated that it was something that in the event the collection were stolen or lost somehow that they would both benefit equally from the insurance, thereby treating it as an joint investment as if it were a joint bank account that had been commingled and belonged to each of them equally.

THE COURT'S DECISION

The judge concluded that when Pamela allowed the originally owned figurines to be so intimately commingled with their marital life that Pamela had allowed the original figurines to meld into their whole “Collection” and thus the original figurines lost their character as her individual premarital property and changed character such that they were marital property and the entire collection was divisible by the family court as a single unit and not as individual purchases made at different times.

This result may seem unfair to you and yet fair to others.  It is an argument resulting from a combination of both facts of the case and the relationship and the law. 

Not every case may end up this way, yet when spouses are at odds with each other it comes down to how things are presented to the court both legally and factually in an effort to achieve your desired result.

Ultimately Pamela expected to get the entire collection and Raymond never expected to get even 1/2 of it. 

Do you have something of value to you in a divorce?  Would you have thought of these arguments?  Do you see the four (4) other arguments that might have been used in this case to change the result for Pamela?  If you don't, that's the reason why we as lawyers exist. Creative and experienced lawyering has it's place in Rhode Island Divorces when called for.

All in all, it would best if we could keep all parties amicable and resolve them, but despite our best efforts it doesn't happen.  When you are not law trained, why take the risk.  Don't victimize yourself but representing yourself without some good coaching and advice!  Not interested in coaching or legal advice from an experienced lawyer, opt for representation with a reasonable but experienced RI Family Law Lawyer.

My Best to Everyone Going through the RI Family Court System,

Chris

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How does my Rhode Island Divorce Judge determine if something is a pre-marital asset and why is that important?

It is perhaps easiest to answer your second question first.  The nature or type of asset that is presented for the judge's consideration is important. 

Why?   Certain types of assets may not fall within what is referred to as the "marital estate."  Rhode Island Domestic Relations law provides that the family court judge has the power to make an equitable distribution of "the marital estate."  Assets that are determined by the judge to be pre-marital are not themselves part of the marital estate and therefore are not subject to division by the court.  They are considered the property of the person who owned the asset prior to the marriage.

The family court judge will determine if the particular asset before him or her is a pre-marital asset based upon the factors surrounding the asset.  Each judge will use his or her discretion to consider questions similar to these:

• Who owned the asset prior to the marriage?
• Does the other party contest that the asset is pre-marital?
• What documents exist to show ownership prior to the marriage?
• What kind of asset is it (i.e. vehicle, piano, painting)?
• How was the asset used during the course of marriage?
• Where was the asset kept during the course of the marriage?
• Was the asset kept completely separate and apart from the marital estate?
• Did both spouses have the beneficial use and enjoyment of the asset during the marriage?
• Were there any discussions between the parties or representations made by the party now claiming it is pre-marital either immediately before of during the marriage that related to the asset?  What were the substance of those discussions or representations?
• Did the asset appreciate during the course of the marriage?
• Were any marital monies or other marital assets used for the maintenance, storage, upkeep or improvement of the asset during the course of the marriage?
• Is the asset insured, and if so, who is the policy holder and who are the beneficiaries?
• If the asset is insured, were any marital assets used to pay the insurance premiums?
• What is the value of the asset?
• How long have the parties been married?

[Exerpt]  To read the complete article click here -> Attorney Pearsall on Pre-marital Assets

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

What is pre-marital property for purposes of a Rhode Island Divorce? 

Seems like a pretty straight-forward question to address in a Rhode Island Divorce, doesn't it? You'd think that it is just property that either spouse owned prior to the marriage. Makes logical sense doesn't it?!?

I've often wondered if the law needs to complicate things or if it's provisions just lend us a helping hand. Yet for whatever reason, it does. Perhaps it is simply that the law must take into account as many of life's circumstances as possible and give the Judge's a bit of a rest from all the emotions which, of course, run high in the family court on a daily basis.

In any event, pre-marital property isn't always that simple. For instance, if you take a premarital item, like a pool table you owned before you got married, and you put it in a marital home with everyone (husband, wife and kids) and everyone uses it for 15 years, is it still a pre-marital asset? Or could it be that by putting it in the home and using it as a family that the owner of the item caused it to lose its "pre-marital" quality and has converted it into a "marital asset."

Consider this example and see what you think:

Jim and Cindy each owned real estate in their own separate names. They got married in 1995 and in 1996 they bought another piece of property to live in while they rented out their separate houses that they owned prior to the marriage. Both Jim and Cindy had separate bank accounts and put the rental monies from their houses into their own personal accounts. Jim did not put Cindy on his bank account and Cindy didn't put Jim on her bank account. They agreed to keep their bank accounts separate.

While they are living in their marital home they each take money from their weekly incomes and put it into a joint checking account to pay for their bills on their marital home?

In 2008 Cindy and Jim agree to have an amicable divorce.  Cindy files for divorce.  Jim files his counterclaim for divorce.

To be on the safe side Jim hires a lawyer who his recommended by a friend to give him advice about his divorce. Unbeknownst to Jim, his lawyer primarily focuses his practice on commercial real estate closings.

During the divorce Cindy discovers that Jim hasn't been quite faithful to her for the last three years of their marriage and has been having an affair with their next door neighbor, Sharon.

Cindy is upset and wants to punish Jim for his infidelity. Cindy hires a full-time family law attorney who discovers that Jim has been paying his water ad sewer taxes as well as his property insurance for his separate house out of their joint account.

Cindy's divorce attorney makes a claim that Jim's house is a marital asset because he used their joint account and therefore both of their monies were used to maintain Jim's house. Cindy's attorney checks into her finances and how she maintained her separate house and finds that everything appears to have been kept separate and therefore he maintains that Cindy's house is most certainly pre-marital.

Since infidelity is normally only considered by the court when apportioning the marital assets of the parties and not as a basis to "punish" an offending party, what, if anything, could Jim argue to get his separate house out of this mess and return it to a pre-marital status?

Is there anything that Jim could look into that might bring Cindy's separate house into the scope of a marital asset that the court has the power to distribute?

If Cindy contributed only half of what Jim did to the the joint checking account, is Jim entitled to use that extra contribution to pay minor expenses on his separate house?

If Cindy was on disability for a time and Jim leant Cindy money to make the mortgage payments on her separate house for several months, does that make any difference?

If Cindy put on a new addition to her separate house but she did so by a credit application that stated Jim's income as a means of paying back the loan, does that matter if Jim didn't sign the loan application?

These are just a few of the many questions that arise with premarital property under Rhode Island Divorce Law.

There are at least 3 other more direct issues raised by this scenario.  Can you spot them?

If you had an item of significant value in your life and you didn't want to lose it or be ordered to sell it by the court, could it possibly be worth the price of a Rhode Island Divorce attorney to give you the best chance at saving that item?

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.