Rhode Island Divorce Brochure

"I like to guide people as they travel to new territories; and divorce is a new territory for most people who call me.  I have been involved in Rhode Island Divorces since 1978.  I know the law and have experienced working with all types of people on many different issues.  I believe that if you are facing a divorce, you should have an introduction to the background and terminology of the divorce world.  Please review this brochure to gain some insight into the process you are facing and then make an appointment to meet with me."

We have prepared this brochure to answer some of your questions about divorce and our work as a Divorce Professional. This material does not address the specifics of your case; however, it provides general information regarding Rhode Island divorce law.  This information is not meant to help you represent yourself; we believe that you need a trained and experienced professional to protect you from losing valuable rights.  We work to ensure that you receive a fair share of marital assets and a quality relationship with your children.  We also realize that the needs and expectations may be different in a Baby-Boomer's divorce, a Gen X divorce or a Millennium divorce.

GROUNDS FOR DIVORCE

Rhode Island law provides many grounds for divorce. However, since the adoption of the concept of "no-fault" divorce by the Rhode Island legislature in the 1970's, the grounds of irreconcilable differences causing the irretrievable breakdown of the marriage is the most common claim for divorce. A Complaint for Divorce must allege one or more grounds, which the person filing for divorce (the "Plaintiff") must prove it by testimony in court. Based upon our discussions with you and the information you provide to us, we will file the requisite legal documents with the court.  However, do not be confused.  During a no-fault divorce, either party can still point to "fault" issues in negotiating an equitable distribution or spousal support.

RESIDENCY REQUIREMENT

In order for a Rhode Island court to have jurisdiction to grant a divorce, you must satisfy the state's residency requirement. At least one party must have resided in Rhode Island for at least one year immediately before the filing of the Complaint. If you do not meet that requirement but need the relief provided through the Court system, there is still a method to obtain relief concerning certain issues.

SAME SEX DIVORCE

Prior to August 2013 when same-sex marriages became legal in Rhode Island, the Rhode Island Family Court had no jurisdiction to hear same-sex divorces based upon a 2007 Supreme Court decision.  With the legalization of same-sex marriages, the Family Court will now hear divorces for same-sex couples whether they were married in Rhode Island or elsewhere.

CHRONOLOGY OF DIVORCE PROCEEDINGS

A divorce case begins by filing a Complaint in the Family Court in the County where you reside. Now all complaints seeking divorce or parental rights/support are efiled into the Courts electronic system.  Rhode Island law requires that the Plaintiff must serve the Defendant with the Complaint so that he or she has adequate official notice. Service can be obtained a number of ways: delivery by a sheriff or constable, or certified mail (if the Defendant lives out of state). The most common method of service in our office is for a private process server (constable) to present the Complaint to the Defendant at work or at home or at a mutually agreeable place, often our conveniently located office. We often attempt to serve the Defendant at a place unlikely to cause further embarrassment avoiding unnecessary alienation.

After the Complaint has been filed and served, the Defendant has twenty day in which to respond to the Complaint by filing an "Answer" with the court, with a copy to the Plaintiff's attorney. The Answer may include a Counterclaim for divorce; a Counterclaim for Divorce is simply the Defendant also asking the court to award a divorce to the Defendant as well as to the Plaintiff.

Upon the filing of the Complaint, the Court will schedule a hearing for an uncontested divorce. Since each individual case varies, this period can be longer - especially in the event of a complex financial situations, or disagreement over custody, support or equitable distribution of the assets and debts. Frequently, cases are postponed from this original hearing date to a subsequent date owing to conflicts in the schedule of the court or one of the parties. Mediation is a process where a neutral mediator works with the parties to help them reach agreements in a private manner. We also offer mediation services if we do not represent either party in a legal capacity.

Prior to the hearing date, our firm will try to negotiate a settlement on your behalf, conduct discovery by filing certain questions and asking for certain documents from the other party, and handle any preliminary matters on your behalf. After the hearing, or a negotiated settlement, a Decision Pending Entry of the Final Judgment will be prepared and filed with the Court. We will draft and present to the Court a Final Judgment of Divorce after waiting a period of three months and a day has elapsed. As of the date of the Judge's signature on your decree, you will then be divorced.

MEDIATION

Many couples prefer have a basic idea of what they want to accomplish in a settlement, but need help in understanding what may work, what they have missed or how to get it to work.  Others want to avoid contested battles and wish to maintain control over the negotiations of the terms of their divorce. Studies have shown that parties who are able to communicate, or who have stopped talking but realize that they need to communicate in the future regarding their children, fare better in mediation and it is better for the children as well. Having been trained, having attended conferences on updated theories and practice, and having mediated hundreds of divorces, we are able to work with couples as a neutral facilitator to discuss all of the issues incident to a divorce and to work with you to help you obtain all financial information allowing you to reach a fair and reasonable settlement according to your time schedule in a more economical process.

UNCONTESTED DIVORCE

Many of the matters incidental to a divorce may be promptly resolved if they are agreed upon or "settled" between the parties outside of court, often in mediation. The matters that the parties agree upon are presented to the court in a document called a "Marital Settlement Agreement", which may deal with property division, support, custody and visitation, insurance and many other subjects. The parties have great flexibility and they may agree to an arrangement of certain matters such as equal time-sharing of children. If the court accepts the agreement, it will adopt it as part of the Final Judgment of Divorce, which gives your agreement the binding strength of a court order, enforceable by contempt proceedings. Disputes over custody, support, property division, or visitation will prohibit an uncontested divorce as discussed above. A divorce is not considered "uncontested" until all issues are resolved.

DUAL REPRESENTATION

Our firm can represent only one party in a divorce action, even in the case of an uncontested divorce. Though it might appear economical, we cannot ethically represent both the husband and the wife in a divorce or post-divorce matter. However, we often handle cases where we represent one party and meet with both parties.  We explain that we only represent one party but we will listen to the terms the parties have agreed to and will help our client review any topics or issues that the parties have not resolved.  We can then draft the Agreement for the parties and bring the matter to Court.. If we act as a RI Divorce Mediator, we cannot represent either party to put the divorce through before the Court.

SPECIFICS OF DIVORCE NEGOTIATION

PROPERTY DIVISION:

If the parties cannot reach an agreement in mediation or through their lawyer's negotiations, a court determines what a fair property division would be in view of the particular facts and circumstances of the case. There is no specific formula for the division of marital property. However, whether it be in mediation or in court, assets, liabilities, and income of the parties will be considered. Other relevant factors include: the amount and nature of the property owned by the parties, the length of their marriage, and the economic circumstances of each spouse. In some cases the "fault" or misconduct of one, or both, of the parties which contributed to the breakdown of the marriage may be considered.  We will also discuss with you whether some assets are "non-marital" in nature and not subject to division. If you and your spouse agree on an equitable division of your assets and debts, this may be incorporated into a Marital Settlement Agreement for presentation to the court for approval. If you cannot agree, the court will divide the property.  IN Rhode Island, probably less than 5% of divorces have a full contested trial.

ALIMONY:

Alimony is available to either spouse in Rhode Island. The court looks at certain circumstances before making an award of alimony. Rehabilitative alimony is the theory most often used in Rhode Island and is based upon whether each party is able to support himself/herself. "Rehabilitative Alimony" allows one spouse to receive money for a period of time while trying to regain an earning capacity.  Circumstances considered include the length of the marriage, the ages of the parties, the conduct of either spouse, the educational background, work experience, physical health, and relative financial circumstances of the parties. There is no set formula for calculating the amount of alimony to be awarded. It can be an agreed-upon amount, a sum set by the court or it may be waived by the parties altogether. If alimony is waived, the court cannot award it at a later date.

CHILD SUPPORT:

The adoption of the child support guidelines in the late 1980's significantly altered the method by which child support obligations are determined. The guidelines assume that both parents should continue sharing the financial obligations of the child(ren) despite a divorce. With a few exceptions, the support amount is calculated by applying Rhode Island Child Support Guidelines based upon each party's gross income. The amount determined by using the guidelines is assumed to be the correct child support obligation unless one of the parties argues that an exception to the guidelines applies. Basically, we will need the monthly gross income of you and your spouse, health insurance cost(s) and child care expenses in order to calculate an estimate of what child support would likely be in your case.

CHILD CUSTODY AND VISITATION RIGHTS:

"Custody" refers to the major decision making for the child(ren). Unless the parents cannot communicate or one parent has a serious problem, joint custody is usually employed, whereby both parties have input into the major decisions concerning the child(ren). Occasionally, the court may award sole custody if the court determines that it would be in the best interest of the child(ren). Then physical placement is considered for the child(ren) as well as the other parent's time with the child(ren), including overnight time. An order for joint custody means that the parties will continue to share the legal rights and responsibilities attendant to being a parent, just as they do during the course of an ongoing marriage. The parties will agree upon a plan for sharing the child's time; often this means establishing a primary residence for the child, and working out a feasible timesharing arrangement. The judges prefer that the parties work out the details so that it is clear which parent has primary responsibility for certain aspects of the child's care. Custody arrangements are subject to the court's approval. If necessary, the court may order supervised visitation. Child support and other support related issues such as the provision of medical insurance for a child might be agreed upon between the parties. In joint custody, each parent has equal access to school and medical records. If the court is required to determine specific visitation rights, many factors will be used; of then the Court will appoint a lawyer to act as a Guardian Ad Litem (GAL), who represents the child(ren) and who will interview both parents, counselors, teachers and the children. The GAL will then make a recommendation to the Court regarding the care and control of the child(ren). Child support and visitation rights are "not interrelated" under Rhode Island law. This means the custodial parent may not legally withhold visitation from the parent who does not pay child support as required. It is the child's right to see his or her parent, and it is the responsibility of the custodial parent to ensure that, absent extraordinary circumstances, a child goes for visitation, even over the child's objection.

SEXUAL RELATIONS/DATING:

Once we have filed an action for legal separation or divorce on your behalf, you and your spouse should no longer engage in sexual intercourse with one another. The court may consider such sexual activity a reconciliation and dismiss your case. That would require you to incur the expense of beginning the case again and the loss of your position on the court's trial docket. However, you may continue to live under the same roof pending the Final Decree. Based upon economic realities, many families remain under one roof while the divorce is pending.  You are still married until the judge enters the Final Judgment of Divorce. Do not date or have sexual relations with others during the divorce proceedings; doing so may be to the detriment of your case.

RECONCILIATION:

Sometimes divorce seems the only solution. Then, after a divorce action is commenced, you may change your mind and try to work things out. We are always pleased to hear any good news of reconciliation. In the event that you decide at any time to withdraw from any litigation which is before the court, or in the process of being prepared, please notify us at once so that we may take adequate steps to halt the process.

CHANGING THE WIFE'S NAME:

The wife may legally change her name through the divorce proceeding, or at a later time through the Probate Court, to resume the use of her maiden name or name by a previous marriage. The children will generally retain the name of their father.

LEGAL SEPARATION:

The grounds for a legal separation are the same as those for divorce and the procedures for obtaining each are similar. In some instances a legal separation is sought by a couple with marital problems who wish, because of religious convictions or in order to retain health insurance or military benefits, to live apart without divorcing. Also, if a party has not resided in Rhode Island for at least one continuous year immediately before the filing of the Divorce, filing for a legal separation provides one with the right to obtain relief from the court.  This is also commonly known as a Divorce From Bed and Board.

REMARRIAGE:

Only after the Judge enters the Final Judgment of Divorce can one be free to marry another person.

TEMPORARY RELIEF:

After a Divorce Complaint is filed it is possible to obtain temporary relief from the Court. If your spouse is physically abusive to you or to the children, refuses to provide reasonable support, or threatens to destroy or dispose of property belonging to the parties, the Court will hear your evidence and determine if relief is appropriate. If you think you will need such special relief, please tell your lawyer immediately.  Most of the time, a Motion for Temporary Alowances is filed so that the parties can get a Court Order about custody, placement of the children, a determination who pays bills and/or child support and other issues that must be resolved while negotiations take place on the terms of the divorce.

RESPONSIBILITIES OF ATTORNEY AND CLIENT

All communications with our firm regarding your case are strictly confidential. We will preserve your confidential communications and prosecute your case to the best of our professional ability. The facts of your case will be the chief determinant. Therefore, we must have all of the facts to represent you properly. The outcome of your case is within the sole discretion of the court, subject to appeal if necessary. We will make every effort to keep you informed. You will receive copies of all documents prepared or received by us. Though there may be periods when you do not hear from us, we will be monitoring and working on your case preparation consistently until it is completely resolved. After you have paid an amount of money as a minimum fee and executed a Fee Agreement, you have established an attorney-client relationship with us. Once this relationship exists you may be asked not to relay specific settlement proposals to your spouse. Of course, if we are coaching you through mediation, we would strategize settlement proposals with you. For ethical reasons we cannot talk directly to your spouse if the spouse is represented by an attorney. We will be available to you to discuss the legal aspects of daily issues, but remember our fees are based in part on time spent on a case, including telephone conversations. When court appearances are scheduled, it will be your responsibility to be present on time at the designated courtroom in the Family Court Building. If witnesses are required to be present on your behalf, we will need your assistance in selecting them and preparing them for an appearance in court. You will have to produce records of your total income, whether from wages, fees or investments, and all of your assets, and furnish a complete list of all debts and liabilities, including amounts required to meet all installment payments. Keep complete records regarding all living expenses for yourself and for any children or other dependents.

CONTACTING THE LAW FIRM

Generally, lawyers are in our office on weekdays from 8:30 a.m. until 5:00 p.m. (telephone 352-1000). Because of the nature of our practice, we are frequently engaged in court hearings or mediation sessions. However, an assistant will be familiar with your case, and she/he may be familiar with its status at all times. If you are unable to reach your lawyer, please ask to speak with the Legal Assistant. If the Legal Assistant cannot help you, she/he will discuss your concerns with your attorney and of us will return your call.

LEGAL FEES AND COSTS

You will be responsible for the payment of court costs and other expenses necessary to your case, and these costs will go directly to the court and other suppliers of non-attorney services such as the Sheriff's Department or court reporters. In our area the minimum costs (exclusive of attorney's fees) in an uncontested case usually consists of the filing fee of $120.00 plus $50.00 for the service of the papers on your spouse. In a contested case, expenses may be incurred to subpoena witnesses or records, for depositions and the expertise of other professionals such as physicians, psychologists and accountants whose testimony or assistance may be required for the preparation of your case. The financial terms of our representation are set out fully in your Fee Agreement which we will discuss with you at the beginning of our representation. We analyze each bill before it goes out and make an effort to keep the cost of our services as reasonable as possible.

ENFORCEMENT OF DIVORCE

The terms of a Divorce Decree are enforceable by a court against either party who fails to comply with them. Should you need advice or assistance enforcing your decree, you may at that time retain our services for this matter as set out above. The most common proceeding begins with the filing of a sworn complaint. Normally, a hearing is scheduled within approximately sixty (60) days after the filing of the Complaint. At the hearing, the Judge hears testimony and determines whether either party is in contempt of court for failure to abide by the terms of the Decree. In the event that a party is found to be in contempt, the judge has the power to place that person in jail until he or she complies, and to enter other appropriate orders. Other methods of enforcing obligations due under Decrees of Divorce include Garnishment, Levy and Attachment, and Continuing Wage Withholding Orders.

MODIFICATION OF DIVORCE DECREE

Certain terms of your Judgment of Divorce concerning children are subject to modification when you can establish a material change of circumstances. These terms include matters concerning child support, custody and visitation until the child reach age eighteen. As a general rule, property settlement terms are not subject to modification. Other terms may only be modified based upon the agreement of both parties.

ANNULMENT

The annulment of a marriage is a cancellation of that marriage from the beginning, as if it never existed. Annulments are rarely granted in Rhode Island, possibly because divorces are usually easily obtained, but there are certain circumstances where an annulment is appropriate. Some of the grounds for annulment are inability of either party to enter into a marriage because of a pre-existing marriage, mental or physical incapacity to enter into marriage by either party, marriage procured by fraud and marriage under duress or threats.

CONCLUSION

Divorce is a part of America life and almost everyone has been directly or indirectly involved in divorce proceedings. As a result, your well-meaning friends and associates may offer you advice and a great deal of folk wisdom concerning your case. Frequently such advice is not accurate and you should be very cautious in following it. The facts surrounding your marriage, divorce, children and property are unique and they differ from every other case. This information is designed to be the most honest and readily understandable statement of the realities of divorce procedure that our firm could produce in the form of a brief handout. It is also designed to refresh your memory about subjects we have discussed with you, and we hope it will make you less vulnerable to misinformation and uncertainty. We have not intended this to be a survey of the law, and due to the importance of the individual facts in all cases, the generalizations in this booklet should not necessarily be applied to any one particular case. Continuing changes in the law could make parts of this booklet obsolete, but you may be assured that we are particularly conscious of the changing law and well equipped to stay abreast of the latest developments, both in Rhode Island and nationally.

DISCLAIMER

No representation is made about the quality of legal services to be performed or the expertise of the lawyer performing such services.