Rhode Island Divorce Tips

Authored 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

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  By:  Christopher A. Pearsall, RI Divorce Lawyer*

David and Kathy entered into a Marital Settlement Agreement in their divorce after Kathy was caught with another man.  In the agreement David gained ownership and control of the life insurance policy covering his life, including the right to change his beneficiary.

David's policy was for $750,000 and Kathy was designated as the beneficiary on his life insurance policy.  For whatever reason, David focused on the big battle of getting through the divorce hearing itself and getting control of his life insurance policy because in the event of his death he did not want Kathy to receive the $750,000.  Instead he wanted the life insurance policy monies to go to his children in the event of this death.

But David didn't do anything but take a well deserved break from all the litigation for the divorce and unfortunately he never got around to changing his life insurance beneficiary. 

Seventeen days before the final judgment of divorce might have entered in his case, David had a heart attack on the golf course and died.  Even though David didn't want the insurance monies to go to Kathy, David never filed the Change of Beneficiary Form.  Therefore, since Kathy was the beneficiary listed on his life insurance policy at the time he died, she put in the claim and was paid $750,000. 

There was nothing David's family could do.  The life insurance was governed by the contract he had signed with the life insurance company.  All of David's efforts to get control of his policy and the right to change the beneficiary were wasted because David failed to immediately change the beneficiary to protect the life insurance proceeds and insure they where paid to the persons he wanted them to go to in the event of his death.

We never expect to die.  We never plan to die.  For some reason we always think we are going to live forever or that we can put off changing the beneficiary to another day because we've done enough work for today.  Yet life insurance plans for death. It is protection for that very thing and the replacement of your income in the event it happens. 

In a divorce, when you get control of your life insurance policy and the right to control your beneficiary, then make the change immediately.  It will take a few days to process as it is and even those few days are a risk.  If you have to pay a little extra to expedite the process or the mailing, then do so.  The alternative is far worse.

I'm sure that if David had realized that he was going to die, then he would have done these things and prevented the wife that cheated on him from receiving $750,000 when he died.  Act on it and plan on changing your beneficiary as if you ARE going to die.  It's that important.

It's worth several hundred and even several thousand dollars at times to get experienced legal help from a professional who knows the Rhode Island Family Court System. 

Yet would if you could get good solid legal advice on various issues for only $150 or even $300 to prevent a travesty like this that rewards your ex-wife and leaves your children with nothing from you.  It be worth such a small amount to get the help of an experienced professional, wouldn't it!

Don't leave your divorce, your life, and your legacy to chance.  Call Me and Set up Your Legal Advice Session!  (401) 632-6976

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By:  Christopher A. Pearsall, Rhode Island Divorce Lawyer

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

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

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

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

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

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

An example illustrates this best.

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

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

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

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

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

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

The judge's response was simple,

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

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

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

Atty Chris Pearsall

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

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Many people think the court is responsible for creating the court orders relating to divorce and family law matters after the judge has stated them from the bench or the parties have agreed upon them.

This is a mistake often made by pro se litigants and new attorneys in Rhode Island.  It is up to the litigations in the matter to create the court's Order consistent with what the judge has stated from the bench.  If this means that you must obtain the transcript of the hearing or a transcrip exerpt that contains only the judge's Order, then you should do so.  

Remember, the Orders are the documents that the court uses to review the file and determine the travel (i.e. what has happened) in the case.  It is often quoted by judges that a court speaks through it's Orders.  Therefore, without orders for each part of the proceeding, a further review of the file leaves gaps in the timeline.  This leaves judges missing critical peices about what occurred during the court proceedings and as a result the judges are without the appropriate information to make equitable decisions in the case.

Just remember that there are procedures for submitting Orders to the Court, including waiting periods once submitted.  These procedures for those who are unfamiliar with them, can be found in the Rhode island Rules of Domestic Relations Procedure. 

Atty Chris Pearsall

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

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So you are going to file a complaint or counterclaim for divorce in RI, what do you ask for, right?

If you look at the Rhode Island Family Court's standard Complaint for Divorce form there is a "WHEREFORE CLAUSE."  This is where it states that you are asking the court to grant you an absolute divorce and ...   Of course space is left after this clause to allow you to type in whatever it is that you are asking the court for.

The main question people have regarding this clause is "What do I ask for?"  Ultimately, you can ask for things specifically like this and list all the things that you want:

"and . . . the 1989 Chrysler Lebaron SE, half of our dvd video collection, half of all the furniture including the bedroom set, the bank account in my name, my 401k, my coin collection, etc..."

Or, you could ask for things generally in this manner:

"and . . . a fair distribution of the assets and debts from the marriage, appropriate orders regarding health insurance coverage and out-of-pocket expenses, denial of alimony to my spouse, and the resumption of my maiden or former name of "Smith" and whatever else the court finds is fair and just.

Now a few of the questions you might be asking yourself are:

1.  Should I ask for things the specific way or the general way?

2.  Is there any difference between asking the specific way or the general way?

3.  If there is a difference, what is the difference?

4.  If I do things the specific way, what happens if I forget something?

5.  Are there any benefits to doing it the general manner?

6.  Do these examples include everything I should ask for?

These are excellent questions to be sure and they aren't the only questions you would want to ask or have answered.

Since this is a general article and is not about any one couple or case, the answers will vary depending upon the couple.

Should you use the general or specific manner to ask the court for relief?  Well, it all depends upon the circumstances, your style and what you trying to accomplish.  Even divorce lawyers differ regarding the answer to this and several of the other questions.

Obviously there is a difference between using the specific and general manner of telling the court what you want.  One clearly tells the court and the opposing spouse what you want while the other one simply tells the court that you want to do it's job under the law and divide things "equitably" as it is required to by law when asked to.  

Good long-term lawyers who care about their divorce clients would most likely say that the more pertinent questions a person should ask are, "How many differences are there between the specific and general manner?  And what significance does each difference make?  These questions, however, depend substantially on the couple involved and the dynamic of their divorce, including how well they are getting along, whether they have children, how old the children are, and other significant factors that a good lawyer weighs carefully with each case.  Therefore, exact answers to these questions aren't really possible in this article.

Does it matter if you are using the specific manner and you miss something?  The answer is this "it might!"  Does it seem as though I am evading answering the question?  Though it might look that way, I'm not.  The fact is that answers to each question are case specific and depends upon the facts of the case, what it is that might have been missed, and even whether the judge assigned to the case believes in following the letter of the law or believes in following a path of using his or her discretion regarding such matters.

In conclusion, I can answer one question with certainty and clarity.  These examples do not even come close to including everything that might be included in a person's request for relief in a divorce.   In fact, several requests that are common and may be necessary have not been included.

Do you know what those things are?

If you don't, then I will have achieved the point of my article.

Let me explain.  Right now I guesstimate that about 75% of people are filing their own divorces in the RI Providence County Family Court alone.  Yet here we are asking about just one single paragraph on the standard court form for the Complaint for Divorce and/or the closely eqivalent request for relief in a Counterclaim for Divorce.

This ONE paragraph that makes a HUGE difference in your divorce whether you file the Complaint for Divorce or a Counterclaim for Divorce.  It has to do with what you want to ask the court to award in the divorce.

Now if 75% of people filing in Providence County's family court are doing this on their own and they don't know all the answers to the questions in this short article then I'd be willing to bet that unless they are lawyers that 74% of them are GETTING THIS IMPORTANT PART WRONG!

Why is this significant?  Here's the kicker!  If you go through your own divorce without the help and coaching of an attorney and you missed something in this crucial paragraph, then some people are going to make errors that are going to be permanent that even the best divorce attorney in Rhode Island is never going to be able to undo!

Whether you are in an uncontested or contested divorce, the risks are still there!  If you don't see the need for either a divorce lawyer or some divorce coaching from a Rhode Island lawyer by this short article, then my very best to you and good luck.  

There's a reason I only practice divorce and family law in our state. The complexities and significance of what needs to be done and considered in a divorce are enough to take up more than one lifetime.  I felt that was enough... and after more than a dozen years doing this.. I know I was right.