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Is Your Rhode Island Divorce Attorney your Divorce Problem? Think Twice!

In Rhode Island Divorce cases there is no shortage of disgruntled clients for Rhode Island attorneys because of the emotional nature of divorce and the fact that in many cases someone is going to leave the divorce upset that they didn't get the sofa, the china, the big screen television, enough visitation, a larger portion of their spouse's retirement plan or maybe the dog.

Unfortunately, we as Rhode Island divorce attorneys are blamed by some clients when things don't go the way we'd like in our divorce.

Are you unhappy with your lawyer?  Ask yourself why?  Is it simply because things aren't going your way in your divorce?  If so, why is that?  Is the other attorney playing dirty?  Is the judge quick to make judgments without hearing your side of the story?  Are you providing your divorce attorney with the information he or she needs to protect your interests correctly?  

Before making a judgment about whether your Rhode Island divorce attorney is your problem, consider that there are many factors outside your lawyer's control.  
 Here are just a few: 

1)   The judge and what he or she may be predisposed to think about certain issues;

2)   The opposing attorney and the argument(s) he or she may make on behalf of your spouse;

3)  Whether your attorney was caught unaware by the court hearing or process due to scheduling changes;

4)  The difficulty of your spouse and/or her lawyer in prolonging the matter or being unreasonable in resolving various issues; 

5)  Whether you are providing your divorce attorney with the information he or she has requested in a timely manner so you can be properly represented;

6)  Whether your expectations regarding what you want are unrealistic  and you simply want what you want regardless of what your divorce attorney may be telling you; 

7)  The timing of your divorce attorney's involvement in your case; and

8)  The facts and circumstances of your particular marital situation and how they are represented to him or her.

These are just a few of the factors that are outside your divorce attorney's control.  So, as you might imagine, any divorce attorney has to be prepared to adjust as much as possible and adapt to these eight factors and others that may (and probably will arise) in the course of your case.

Before flying off the handle at your divorce attorney, consider that he or she may be a victim of circumstance and that he or she may be adjusting as quickly as possible to the changing circumstances with your case.

I am frequently consulted to give second opinions regarding my fellow divorce and family law attorneys to let client's know whether or not what I'm being told about the case is out of the ordinary for the typical divorce attorney in Rhode Island.  In many cases, people are surprised when I explain to them why their attorney has addressed issues and treated their case well within the bounds of reason, discretion and skill.  

In some cases, it is apparent that a person's attorney has diverged from standard and reasonable divorce practice and ethical standards and I have no problem informing the client of that fact and the actions that the client should reasonably be able to expect.  Often, the client expects even more than I advise them of with respect to their attorney and it becomes my unfortunate task to explain to the client that they are being unrealistic in their expectations regarding how they expect their attorney to perform both in and out of court.

In the occasional case, I will be forthright with the client and advise him or her based upon the timing and the circumstances as to whether they should consider interviewing new counsel based upon substantial deviance from standard divorce and/or legal practice generally among Rhode Island attorneys.

In a nutshell, think twice before lashing out or blaming your divorce attorney too quickly for something that may be out of your lawyers control.  In the very least, take time to get a second opinion before terminating your attorney.  Too often a client will have a good attorney who is doing a decent job and they will terminate their attorney too quickly only to regret that decision later.

Should you need a second opinion about your Rhode Island Divorce attorney, feel free to contact me and I will be happy to meet with you for a low-cost advice session.  It's better to be well informed and get either reassurance that your attorney is "on the ball" or if your attorney is doing you a disservice before you terminate your attorney and possibly making a "huge" mistake.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Rhode Island Alimony - The Language is Crucial! Part 1

In a Rhode Island Divorce proceeding alimony must be awarded or denied by the Family Court Justice.

Since alimony under Rhode Island law is rehabilitative in nature, more often then not it is waived by one or both parties during the course for most Rhode Island divorce proceedings.  

Alimony that is rehabilitative is awarded by the court based upon the recipients need for financial support while he or she (1) re-establishes himself or herself in the working world with existing skills, (2) re-trains himself or herself with skills sufficient to sustain himself or herself with more modern skills, (3) is unable to care for himself or herself due to injuries, illnesses, handicaps or other circumstances that reasonably warrant the award of alimony for an extended period of time because one spouse is unable to care for himself or herself.

Alimony may be agreed to by the parties in circumstances when an award of rehabilitative alimony may be considered inevitable by the parties and/or their lawyers.  In other instances, a spouse may agree to pay rehabilitative alimony to the other spouse because their is an ability to make such a payment, even if the court would not normally award it, and one spouse wants to help the other spouse for a reasonable period of time until he or she regains a financial foothold on his or her own.

 
Whether alimony is by an award of the court or by an agreement of the parties, it is important that the language used by the court for any award of alimony is accurate pursuant to the agreement of the parties or as intended by the court.

The typical example is when an award of alimony is made for a specific amount of money for a specific period of time.  In this instance, clarity of language is essential!

Assume that Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of exactly $400 per week for a period of three (3) years.    Now let's assume that the alimony award is phrased as follows in both the Marital Settlement agreement of the parties as well as the Decision of the Court.  Nothing else is mentioned about alimony.

    "Defendant Mrs. Lawyers shall pay Mrs. Lawyers rehabilitative alimony of $400 per week for a period of three years."

Here is where accuracy in the language regarding the rehabilitative alimony provisions is crucial when it comes to clarifying the Marital Settlement Agreement and/or the Decision of the Court.  If this is the ONLY alimony that Mrs. Lawyers is to receive per their Marital Settlement Agreement, then Mrs. Lawyers MUST request to waive alimony permanently on the record of the court and Mr. Lawyers or his attorney must make sure that the decision of the court is clarified to state that Mrs. Lawyers waives alimony permanently after that three year period.  Either Mr. Lawyers or his attorney should do so even if it means clarifying to the judge BEFORE the hearing or trial is concluded that the award of alimony should involve a waiver of alimony permanently with the exception of that three year period.

Why is this so crucial in a Rhode Island divorce proceeding?

Well, in the first instance it is significant to Mr. Lawyers.  If there is no permanent waiver of alimony by Mrs. Lawyers other than that three year period, then Mrs. Lawyers has a viable legal argument that alimony WAS NOT expressly limited to that three year period of payments because she DID NOT waive alimony permanently.  Therefore, if things aren't going well for Mrs. Lawyers at that time and Mr. Lawyers still has the ability to pay continued alimony, then Mrs. Lawyers might decide to return to court for another 1, 3 or more years of alimony.

In the second instance, if Mr. Lawyers has hired a Rhode Island attorney to protect his interests in the divorce, then the attorney may have made a crucial mistake because he or she didn't make sure a permanent waiver of alimony was made by Mrs. Lawyers.  Unless there was a miscommunication or some other circumstance which explains why the Rhode Island attorney didn't insure the permanent waiver of alimony was made, then the Rhode Island attorney may find himself or herself on the receiving end of a legal malpractice claim.

Authored By:

Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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A Rhode Island Divorce Attorney's Tip to Prevent Payment Issues for the Medical Expenses for Minor Children of a Divorce!

Whether you are trying to settle your own divorce with your spouse, writing up your own Marital Settlement Agreement or looking over a Marital Settlement Agreement prepared by your Rhode Island divorce lawyer or your spouse's lawyer, this tip is one that both clients and lawyers can take to heart.

Future medical expense payment issues often occur when one spouse looks back to the language of either the Marital Settlement Agreement and/or the Final Judgment of the Rhode Island Family Court and refuses to make payment for one or more expenses claiming that the language does not require him or her to pay for all or part of that expense.

For instance, the Final Judgment requires each parent to pay 1/2 of all uncovered and uninsured medical expenses for the minor children.  The wife gets the children braces and demands that the husband pay 1/2 of the braces.  The husband refuses.  The husband's lawyer argues that his client does not have to pay for half of the braces because braces are not a "medical" expense.

Another example arises when a child becomes injured in a car accident and requires substantial surgical treatment and therapy.  The Marital Settlement Agreement states at each parent will pay 1/2 of all uninsured medical and dental costs for the minor children.  Therapy ends for the minor child and the therapist cannot continue because the medical insurance has reached its maximum number of therapy sessions for the child.  The therapist mentions a therapeutic device that can attach to the child's foot to help regain motion in her left foot but that health insurance does not cover it and it must be purchased and can't be rented.  The cost is $10,000 for the device.  The father takes out a loan because he wants to take care of his daughter and buys the device and
asks the mother for 1/2 of the cost.  The mother refuses.  At court, the mother's lawyer argues that the device is not a medical cost but rather it is a
a device or apparatus meant to substitute for a medical treatment which would
create a medical cost.

When considering language to be used to cover future medical expenses for minor
children when the expenses are to be shared between the parents of the children I suggest using something in the nature of the following:

"The Mother and Father shall be responsible on a 50/50 basis for all uncovered healthcare related expenses and costs expended for the benefit of the minor children."

The terms "healthcare related" are the primary terms that should be included to
avoid future issues as to whether dental is included in medical, or whether orthodontia is included in dental, or whether medical includes therapeutic or
optometic, or etc...

The terms "healthcare related" are broad enough terms to prevent future disputes
without the need for further court intervention with a realistic chance of prevailing on an opposing motion.  The wording and costs "expended for the benefit of the minor children" are helpful wording to solidify that any costs or
expenses referenced are those that are "in fact" expended for the benefit of the
minor children.

Carefully, examine provisions drafted even by your own Rhode Island divorce lawyer and consider this tip to help you choose your wording carefully.  It could save you future disputes, time, money, attorneys' fees and needless stress.

  Christopher A. Pearsall, Esquire
Entrepreneur and Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost Rhode Island Family Law Consultation.
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Rhode Island Divorce Attorneys : Focus on the Judge's Job!

Originally the Rhode Island Family Court and divorce proceedings were part of the Rhode Island Superior Court.  Though they remained a court of superior jurisdiction, the Family Court was created to address family related matters which in and of themselves comprised a substantial number of cases focused on the specific subject of legal matters dealing with relationships, the well-being of the family unit and contracts such as marriage.

Seeing the need for a separate court to address divorces and relationships which resulted in contract-like situations, the RI General Assembly established the Rhode Island Family Court system and its underlying structure.

It is helpful and important to know that Rhode Island Divorce lawyers often deal with very emotional issues for their clients because with marriage often comes divorce - the severing of the living situation, financial dependencies the parties have with each other, the children borne of the marriage, and the assets and debts accumulated during the courts of the marriage.

It is extremely help however to understand that the RI Family Court system arose out of the Superior Courts due, in large part, to the contractual nature of marriage.

A marriage, though not viewed by many people as such, is in fact a contract.  During that contract children may be born, assets may be acquired, debts may be accumulated and one of the parties may need financial assistance to survive the dissolution of the marriage contract.

Do you want to get through your divorce and move on with your life as quickly as possible?  Then as difficult it is, put aside your emotions and think about where the judge is sitting and what he or she must do.

Imagine your case the way the judge does.  The judge sits there day in and day out hearing all kinds of saga, including emotions, hard luck stories, bitter retorts, vindictive statements, heartfelt pleas to punish the other spouse and more.  Yet the judge isn't there to be your counselor or to take the court's time so that you can say your piece just to get it off your chest and feel somewhat better just for having said it.

The judge sits on the bench in a divorce case to help the parties reach an equitable result to the dissolution to your marriage contract.   

Think about the judge's role and take the most direct result to the resolution of your divorce that is fair and reasonable or that is acceptable to you.

While the judge sits on the bench he or she has a specific role, namely to identify and deal with the important aspects of what your marriage produced.  Usually it is fairly straightforward.

1)  Minor Children
2)  Marital Assets
3)  Marital Debt
4)  A Spouse's ability to financially survive after the divorce.

While it is true that each of these items has each of its own characteristics, a divorce can reasonably be converted down into these four (4) basic elements for the purposes of understanding how you can help yourself through it.

This is simply a practical tip that will help any party to a divorce, IF, you can do it. 

1)  Put your emotions of rejection, anger, feelings of fault, depression, and all other emotions about your relationship away as much as possible when dealing with your Rhode Island Divorce Lawyer.  Why?  Because lawyers address the legal issues the court will rule on and unless they have counseling training for mental health issues, they are not the best ones to voice those concerns too.

I am not recommending that you bury your feelings or that you don't deal with them at all.  I am suggesting that you find a good psychologist, psychotherapist, individual counselor, family counselor and/or marriage counselor and talk them out, whether they be feelings about your spouse's infidelity or your own insecurity or fears.  Your emotions should be dealt with by a professional skilled in mental health and emotional issues.

2)  Focus on what the judge must deal with in your marriage.  Those are the four points I have listed above.  These are at the center of your Rhode Island divorce.   If you can remove the emotion from these points and focus on them in the order they are listed and decide upon them in the order in which they are listed then you will have the best opportunity to resolve your divorce as quickly and and effectively as possible to move on with your life.

The Rhode Island family courts are not a forum for waging vendettas and punishing your spouse for the wrongdoing you believe he or she has committed that have caused you to feel hurt or embarrassment.  Move on with your life sensibly and maintain your self-respect and dignity.  In this way, your life will grow and be enhanced much more quickly.

Life is all about change but not all change is bad.  Divorce is a big change for spouses and for children but it need not be a bad change.  Divorce is not only an ending of something you are familiar with, it is the beginning of something new, a great adventure that may bring you untold happiness without measure.

Embrace it and Live for You!

Authored By:

  Christopher A. Pearsall
RI Divorce and Family Lawyer
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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Rhode Island Child Support: Should I have any concerns if my child support is garnished?

Question: 

Should I have any concerns if my child support is garnished?

Answer:

Yes.  First, your payments need to be on time and for the entire amount due.  If you are being garnished through your employer you still need to monitor your paycheck to make sure the correct amount is being taken out by your employer and that your employer is sending the payments to the court as soon as possible after the garnishment and as frequently as possible.   

Unfortunately, you may have no choice regarding the timing and amount of the garnishment.  The court's garnishment order will control some of these factors and your employer's preferences may control the other factors

Why is it important that your employer sends in the garnished funds as frequently as possible? 

The Rhode Island Family Court Systems Child Support collection unit has a computer system that automatically tacks on 12% which is statutory interest that accrues on all unpaid child support in its computer system.  If your employer garnishes your pay weekly but only sends in the monies that are garnished at the end of the month, by the time the Court receives the check from your employer, processes it and records it in its computer system and processes a check to the placement parent the computer system will generally record you to be 4 weeks or more in arrears on your child support .  The result?  12% statutory interest will be tacked on to your child support account without your even knowing it even though the funds were taken from you on a weekly basis.

Here's the rub.  If you are garnished weekly and your employer sends in the payment once per month, then interest will not only accumulate without your knowledge but it will  compound upon itself making it appear over time that you are weeks or even months behind in your child support.  This could give the appearance that you are a deadbeat mom or deadbeat dad in the court's system.

If you do not address this little glitch in the Rhode Island Child Support Collection system for an extended period of time then you may one day discover that you owe hundreds or even thousands of dollars in interest that you did not know was accumulating.  Getting it removed is easier said than done. 

In the end, you may have paid your child support timely by garnishment only to find out months or years later that you owe thousands more, all because of a system glitch.  Even if you have evidence from each employer you've had over the years that you were garnished timely, you may be held accountable for all those monies even if the accumulation was because your employer only chose to send in one check per month to save on bookkeeping hassles.  At this point you may be held to in contempt or be required to pay all the excess interest as a result of your employer's bookkeeping practices.

 

Authored By:

  Christopher A. Pearsall, Esquire
70 Dogwood Drive, Suite 304
West Warwick, RI 02893


Call (401) 632-6976 Now for your low-cost consultation.
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Copyright 2008.  Christopher A. Pearsall, Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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A Rhode Island Divorce Attorney and the Divorce Process

A Rhode Island divorce attorney can make the divorce process sound simple or complicated.  Whether the attorney makes it sound simple or complicated may depend upon whether the attorney has a particular goal in mind or whether he or she simply is addressing a person with a different level of education who does not want to be spoken down to and therefore is comfortable with the more technical jargon or legalese used in the legal profession.

For my part, I believe that it wastes the clients and the attorney's time by complicating the process merely to justify the fee that is usually requested after the process is explained.  The process of divorce itself is simple.

Here it is with all the technical jargon stripped from it.

A)  You prepare the Divorce Packet which consists of these completed documents:
              1) 2 Summons
              2) 1 Divorce Complaint and 1 Copy (after it has been signed and witnessed).
              3) 2 Nominal or Uncontested Track Notice Forms
              4) 2 Automatic Orders
              5) 1 Family Court Counseling Forms
              6) 2 Children of the Marriage Forms
              6) 1 Report of Divorce
              7) 1 Notice of the Parental Video Requirement (if there are minor children of the marriage)
              8) 1 Certified Copy of your Marriage Certificate on file with the Bureau of Vital Statistics

B)  You file all these documents with the Family Court Clerk's Office in the county in which you reside or in which your spouse resides together with a check for $100 for the filing fee.  In Providence County you may have to wait a day or two before they completely file your divorce because of the immense volume of domestic matters they handle.

C)  Once filed you get back various certified documents rom the court which need to be served upon your spouse.

D)  You contact the sheriff's department or a constable ("process server") where your spouse lives and have them serve the certified documents upon your spouse.  The process server will report that he or she has or has not served your spouse on the back of the original summons.  Usually your spouse has been served.

E)  You mail the Summons that has the Process Server's Notice of Successful service on the back to the court where you filed your divorce action making sure to note the "Nominal Date" that appears on the Summons.

F)  You try to reach an agreement with your spouse regarding all aspects of your divorce, including placement of children, visitation, division of assets, division of debt, health insurance, child support, alimony and all other things relating to your marriage.

G)  You appear at the court on the Nominal Date.  If you have an agreement, or if your spouse does not show up and is defaulted,  then you place on the record a short hearing . . . called a Nominal which requires you to place on the record those things that are required by law to establish jurisdiction, a marriage, a breakdown of the marriage, inability to reconcile, alimony or waivers of alimony and the items needed for a proper waiver of alimony and any elements of your agreement with your spouse that you want the court to include in any court order.

H)  Within thirty (30) days after your Nominal Hearing you submit to the Court an Interlocutory Decision Pending Entry of the Final Judgment which outlines the courts findings of fact and decisions as set forth by the judge immediately following the Nominal Hearing and specifically states that all the orders of the court are effective but that the parties are not divorced until the entry of Final Judgment of Divorce is signed by the court.

I)  On the ninety-second (92nd) day after the Nominal Hearing, a Final Judgment of Divorce may be submitted to the Court for approval by the judge and then filed and entered by the court clerk to make your divorce official.  The Final Judgment may be submitted within the 92nd day and the next 30 days thereafter to the judge for approval.

It should be noted that this is a bare bones nominal procedure.  It does not sound difficult or particularly astounding to a person looking at it from the outside who is reading this article.

However, as it has been said, the "devil is in the details."

Questions you need to ask yourself are:

1)  What happens if we don't agree on everything by the Nominal Date?
2)  Do you know the effect of incorrectly preparing the Divorce Filing Documents?
3)  Do you know what questions must be asked at the nominal hearing to establish jurisdiction?
4)  Do you know how to ask your spouse questions in order to effectuate a valid and permanent waiver of alimony?
5)  If you had an agreement on a subject but did not put it on the record of the court, is it still part of your agreement with your spouse?
6)  Do you know what you are entitled to in the way of marital assets?  Or even what is a marital asset and what isn't?
7)  Do you know how to prepare an Interlocutory Decision Pending Entry of Final Judgment?
8)  Do you know how to prepare a Final Judgment of Divorce?
9)  What happens if you miss the 30 days for entry of the Decision Pending Entry of Final Judgment?
10)  What happens if you miss the 30 days for approval of the Final Judgment of Divorce?
11)  What happens if you accidentally file the documents in the wrong order?
12)  If you reach an agreement with your spouse, should it be formalized?  If so, how?

These are only a few of the questions that should be running through your head if you are thinking about handling your own divorce.  These questions don't even take into consideration the tons of legal questions that you may need to consider, especially whether the court would approve your agreement with your spouse or whether the court would disapprove of the agreement or your requested relief if the judge believes it to be unreasonable or more specifically against existing law or contrary to public policy.

Copyright 2008 Christopher A. Pearsall, RI Family Law Attorney*

Call 632-6976 Now for your low-cost consultation with  Rhode Island's Most Affordable Divorce Attorney

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.