Rhode Island Divorce Lawyers | Affordable RI Divorce Lawyer Christopher A. Pearsall: RI Divorce Lawyers on Court Orders

RI Divorce Lawyers on Court Orders

August 27, 2011

RI Child Support - A RI Lawyer's Child Support Coaching Tip

Do you have an uncontested RI divorce in Rhode Island's Family Court? Or do you hope for one?

It's easy to make the same mistake some Rhode Island attorneys practicing divorce make, namely that joint physical placement of your children so that you each have the child or children exactly 50% of the time means that neither parent pays child support to the other parent.

The Rhode Island Child Support Guidelines are available to everyone at the Rhode Island Family Court Domestic Relations Clerk's desk/office. Even a quick read of Rhode Island's Guidelines is informative and would put you on notice that while it is "possible" that there would be no child support payable from either parent to the other in such circumstances, it is just as possible that child support will still be payable to the lesser earning parent in the Rhode Island divorce or Child support proceedings.

Why is that the case in Rhode Island?

Generally speaking it's not about you as the parent, it's about the children. In a joint physical placement situation Rhode Island's Family Court Administrative Order 2002-03 which forms the substance of the Rhode Island Child Support Guidelines provides as follows in Joint/Shared Physical Custody situations,

In light of the unique nature of an individual joint or shared physical custody arrangement, the Court should exercise its discretion to determine an equitable child support obligation in accordance with the 2002 Monthly Basic Child Support Obligations Schedule and Child Support Guideline Worksheet.

Therefore, the Rhode Island Family Court Judge assigned to your case has a considerable amount of discretion when it comes to the support for your children. It is NOT simply that by having your child(ren) half of the time that you automatically cancel out Rhode Island child support.

So what might the Rhode Island Family Court Judge do in your particular case. Since each case is based on the facts and no two cases are identical, there is no real prediction that I, or any other Rhode Island attorney could make regarding any child support you may or may not have to pay. However, reasonable speculation is possible by an experienced professional who hears the facts and determines what the possibilities might hold from the court's point of view.

So, in the first instance in any Rhode Island family court proceeding involving child support under the RI Child Support Guidelines, it is best to know that (1) having joint/shared physical custody of your children with the mother of the child(ren) does not mean "No Child Support.", and (2) the Court judge on your case has discretion in determining how much child support, if any, should be paid by one parent to the other parent when considering the best interests of the Minor Child(ren), and (3) it is still helpful in the long run to meet with a divorce lawyer who regularly has practiced Rhode Island divorce and family law to find out what a Court judge might possibly do regarding Rhode Island Child Support given your particular factual circumstances for a Rhode Island Child Support Order so that you and be adequately prepared for possible outcomes.

Ultimately, don't make the mistake of thinking that simply because you get the other parent to agree to joint/shared physical custody of the child(ren) that you won't have to pay any child support. If you make that assumption you may find yourself sitting before a Rhode Island judge who suddenly orders you to pay hundreds per month to the mother of the child(ren) and now you have to pick your chin off the floor because you planned on using those monies for something else.

Need to plan for the possibilities or prepare for the worst?

Call for a Rhode Island Child Support Advice and Coaching Session NOW!

One hour for only $135 could save you thousands of dollars of headaches!

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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

Discover the Tremendous Benefits You Receive by

Participating in Family Law Coaching Sessions!

Visit the RhodeIslandDivorceCoach.com

Call (401) 632-6976 Now
to
Schedule Your Low-Cost Rhode Island Divorce* or Family Law* Coaching Session!

Experience the Difference!

Copyright 2000 to Present. Christopher A. Pearsall, Esquire
Offering Rhode Island Rhode Island Divorce and Family Law Coaching for a New Millenium!

Note: If this article contains a case scenario with names, dates or amounts, any resemblance any connection to any person or situation now or previously existing is purely accidental, unintentional, and is merely a mistaken creation in the mind of the reader.

* The Rhode Island Supreme Court licenses all attorneys in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any particular field of practice.

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April 01, 2011

When Do Marital Property Claims End in a Rhode Island Divorce?

Question from Alfred:

I went through that Nominal Hearing and my wife and I settled everything in our Property Settlement Agreement that we gave to the judge at our hearing. I had a chance to buy into a great business so I did it. That business is a major money maker and my partner and I are doing great in just our first month. Now my wife is claiming she is entitled to half of my interest in that business. My lawyer says that isn't correct and she can't touch it. What do you think Chris?

Answer to Alfred:

Well, Alfred there are a few details missing but I will try to answer appropriately. If your Property Settlement Agreement doesn't include a clause in which your wife waives any interest she may have in after-acquired property that you may purchase then you are going to have a problem. According to case law, marital assets are divisible by the court right up until the date the that the Final Judgment is signed. Therefore, if you don't have an "after acquired property clause" to rely upon and ask the court to enforce and take into consideration from your Property Settlement Agreement, then if you purchased this new business interest and operated that business with anything other than monies you borrowed, monies you were gifted from a third-party, monies you inherited, or monies you received which were determined to be a premarital asset or from the sale of a premarital asset, then your wife does have a right to make a claim to part of your business interest or your income from this new business.

Hopefully there is an "after-acquired" property clause in your Property Settlement Agreement because a judge may well balance the equity of giving your wife any of that interest against her contractual waiver or any such interest voluntarily. Even though a judge's order will trump any contractual provision in your Property Settlement Agreement, your family court judge may take into consideration the conduct of the parties during the course of the marriage, including your wife's voluntary waiver of any interest in anything you purchase after she signed the Property Settlement Agreement and find that the only equitable thing to do is to deny your wife any part of the business.

If you need further clarity please call and set up an in depth coaching session with me so I can give you an even more direct response to your question and get more facts. It certainly sounds as though your new business is certainly worth one hour and the nominal $135 fee for the one hour appointment to protect your new business. You can never be too safe in cases like these.

Remember, my response is only my best guestimation based upon only the information you provided and any number of answers to a few additional questions may change the information provided here.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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

Discover the Tremendous Benefits You Receive by

Participating in Family Law Coaching Sessions!

Visit the RhodeIslandDivorceCoach.com

Call (401) 632-6976 Now
to
Schedule Your Low-Cost Rhode Island Divorce* or Family Law* Coaching Session!

Experience the Difference!

Copyright 2000 to Present. Christopher A. Pearsall, Esquire
Offering Rhode Island Rhode Island Divorce and Family Law Coaching for a New Millenium!

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July 16, 2010

RI Pre-Marital Assets - Your Divorce, Your Assets . . . or Are they?

In a Rhode Island Divorce proceeding, you do not have the luxury of claiming any asset is "pre-marital" and then doing whatever you want to with it.

Until your RI Divorce Judge determines that an asset is "pre-marital", you must presume that it falls within the power of the Rhode Island Family Court.

While you can certainly take the position that an asset is "pre-marital" in your divorce proceeding, it is not within your power to determine that an item is, in fact, "pre-marital" so that you can do whatever you like with the asset.

In fact, taking an asset and disposing of it at you see fit, especially without at least giving 50% of the value of the asset to your spouse, is likely to lead to a Motion for Willful Contempt for taking action in violation of the Automatic Orders of the Court.

Automatic Orders of the Court apply to every divorce proceeding and violation of those Orders is punishable by numerous remedies the Rhode Island Family Court Judge may avail himself or herself of, including but not limited to, incarceration at the Adult Correctional Institution, sanctions, fines, attorney's fees awards etc. . .

Remember, each "pre-marital asset" should be considered separately and a good Rhode Island Divorce Coach / Lawyer will help you identify whether or not an asset is likely to be considered (1) entirely pre-marital, (2) partially pre-marital, or (3) not pre-marital at all because its character changed from pre-marital to marital during the course of the marriage.

Though an asset in a divorce may change character in a multitude of ways, consider the following example.

For example, Jill owns a house and its property prior to the marriage. During her marriage to Tim, Jill adds Tim's name to the deed. Though Jill may still argue that the house and property are still a pre-marital asset, or the value of them before she married Tim is pre-marital, her argument should fail because she changed the character of the property from "hers" to "theirs." By adding Tim's name to the deed Jill actively and intentionally changed the house and its property from "pre-marital" to "marital."

Remember that In any Rhode Island divorce, the divorce lawyers make arguments for their clients. You have the power to make the same arguments for yourself, if you understand the arguments that you have available to you.

Do you know what arguments are available to you regarding your assets? A Rhode Island Divorce Coaching Session may help you get a better grasp on holding on to your assets. If you represent yourself, it may give you just the edge you need.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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

Discover the Tremendous Benefits You Receive by

Participating in Family Law Coaching Sessions!

Visit the RhodeIslandDivorceCoach.com

Call (401) 632-6976 Now
to
Schedule Your Low-Cost Rhode Island Divorce* or Family Law* Coaching Session!

Experience the Difference!

Copyright 2007 to Present. Christopher A. Pearsall, Esquire
Offering Rhode Island Rhode Island Divorce and Family Law Coaching for a New Millenium!

* The Rhode Island Supreme Court licenses all attorneys in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any particular field of practice.

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July 27, 2008

Rhode Island Divorce Lawyer tells of Two College Cost Exceptions!

Under Rhode Island law, parents are not responsible for paying for college or expenses related to college. There are a few exceptions that as a Rhode Island Divorce Lawyer I've seen Rhode Island Family court judges address.

Generally speaking the statement above is true. Parents are not held responsible for paying for college expenses. This is true, provided that normally accepted situations exist.

For instance, most "children" do not take college courses before their 18th birthday and many, even before their 19th birthday.

Under Rhode Island Law, child support obligations may be required by parents until a child is 18 and has graduated from high school or until the child has reached the age of 19 at the latest, provided the child is not a special needs child. Child Support provides for child care expenses which may or may not, in the discretion of the judge include educational expenses. Consider this example which is not that unusual.

EXAMPLE #1 - Your Child is Advanced

Terri and John have a daughter, Samantha and are divorced. Samantha is exceptionally bright and finished high school at age 17 and was accepted to college early. Terri takes John back to court to have him pay for part of Samantha's college expenses. John hires a Rhode Island general law practitioner who advises him that he is not required to pay for his daughter's college expenses. In the Final Judgment of Divorce John was ordered to pay for half of Samantha's tuition, books and extra-curricular activities until she was no longer eligible for child support.

At the time of the hearing John expects that he will not be ordered to pay anything toward Samantha's college expenses especially since Samantha's private high school tuition was about 1/5th the cost of Samantha's college tuition and he never anticipated Samantha would go to college early.

However, after the hearing the judge sees things otherwise. Since Samantha is still a minor
she is still entitled to child support and the support of her father. Since the court's order didn't specifically exclude college expenses, then the judge finds that they are still included until Samantha is no longer eligible for child support.

EXAMPLE #2 - You Agreed to It

Claire and Tim get divorced and have a Marital Settlement Agreement. Both parties had an attorney and both parties wanted to get the divorce done as quickly as possible so the Marital Settlement Agreement was a little rushed though each party had the opportunity to read all the provisions and discuss it with his or her lawyer.

Claire and Tim have a son, James. James enters college and Claire contributes as much as she can to his college education and approaches Tim about his contribution. Tim is surprised and tells Claire that he can't afford to contribute to college for James because he is just about to close on a new house. Claire consults a lawyer who tells Claire that Tim has to contribute whether he likes it or not because he agreed to it in the Marital Settlement Agreement.

Tim consults an attorney who informs him that it doesn't matter what is in the Marital Settlement Agreement because the family court lacks the legal authority to make a father pay for college costs.

At the hearing Claire's attorney argues that Tim agreed to it in a provision of their Marital Settlement Agreement and Tim's attorney argues that the family court lacks the power to force Tim to pay for college costs and therefore the provision of the Marital Settlement Agreement is not binding.

The judge takes a straightforward and common sense position to the argument. The judge agrees that the family court does not have the power to force a parent to pay for college costs for a child who is not a special needs child and is emancipated. However, the judge finds that according to the Rhode Island Statutes the family court is empowered to enforce agreements made between the parties as a results of divorce and that the terms of such agreements may reach beyond what the family court may order because parties are free to contract to whatever terms they see fit as long as the court does not find them to be inequitable.

Therefore, the judge finds that the Marital Settlement Agreement is enforceable as a separate and binding contract and Orders Tim to pay half of the expenses as he agreed to do in the Marital Settlement Agreement.

Authored By:

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

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
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Copyright 2008. Christopher A. Pearsall, Internet Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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Posted by Attorney Christopher A. Pearsall on July 27, 2008 at 03:42 PM in RI Divorce Lawyers on Child Support, RI Divorce Lawyers on Court Orders, RI Divorce Lawyers on Settlements | Permalink | Comments (0) | TrackBack (0)

July 11, 2008

RI Family Lawyers and Contempt Motions

In my opinion, family lawyers in Rhode Island need to do two things for the benefit of their clients.

First, a good family lawyer needs to distinguish between technical contempt and willful contempt. The two are fairly easily to distinguish.

Willful contempt occurs when admissible evidence can be proven before the family court judge demonstrating that a party knew of a court order and despite the ability to comply with that order chose not to do so or opted to do something that the party felt was in his or her own best interests or the best interests of his or her family despite an order to the contrary.

Technical contempt occurs when the evidence presented to the court proves that a party subject to an order of the court does not comply with that order because he or she does not have the means or the power to comply with the courts order.

It is the nature of the non-compliance that designates what type of contempt it is. Does the person have the ability to comply with the Order or not? If the person has the ability to comply with the Family Court Order but does not do so then the contempt is likely to be found to be willful. If the person accused of the contempt did not have the ability to comply with the order as a result of circumstances outside his or her control then the Order should normally be one of technical contempt.

The distinction is more than nominal. The distinction is often very significant as is the manner in which your Rhode Island Attorney deals with it. In most cases, clients will not know, understand or appreciate the distinction between these types of contempt and how they may be viewed by the court.;

In cases of willful contempt, the court is more likely to award attorneys' fees to the prevailing party if in the court's discretion such an award is warranted. In cases of technical contempt, awards of attorneys' fees are rare. In some instances if it appears clear to the judge that the party pressing the contempt motion was aware it was a technical contempt, the judge may be upset with counsel for wasting the court's time or may be upset with the attorney's client if it becomes clear from the evidence presented that the party pressed this motion knowing it was merely a technical violation and did not create a risk of harm that the Order was designed to protect.

In most cases I believe it appropriate to identify for the client the pros and the cons of proceeding with a motion for contempt when it may be seen by the court as purely technical. Insistent clients who try to force their counsel to proceed on a matter that may damage the client's credibility with the court and perhaps damage their attorney's reputation for the remainder of the case are best read the riot act and the consequences clearly explained to them. An outright refusal of an attorney to proceed under such circumstances is understandable and justified, though many attorneys will not do so for risk of losing the client's business.

In the end, despite the good judgment of counsel, sometimes clients need to give direction to their counsel, have their day in court, and take their lumps before they catch on to the fact that their attorney may know best what to do in a particular situation as a result of his or her experience and expertise.

Authored By:

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

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008. Christopher A. Pearsall, Internet Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
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Posted by Attorney Christopher A. Pearsall on July 11, 2008 at 11:08 PM in RI Divorce Lawyers on Contempt, RI Divorce Lawyers on Court Orders, RI Divorce Lawyers on Lawyers Fees, RI Divorce Lawyers on Motions, RI Divorce Lawyers on Trials & Hearings | Permalink | Comments (0) | TrackBack (0)

June 09, 2008

Question for RI Divorce Lawyers: Can my attorney tell me what assets are non-marital?

Question

Can my attorney tell me what assets are non-marital so I can do what I want with them?

Answer

No. Your attorney can take an educated guess at which assets in your marriage are non-marital and your attorney can argue on your behalf to the judge who is hearing your case that certain assets are non-marital and are yours (provided your attorney has a basis for arguing that each such asset is yours as opposed to your spouse's). However, your attorney does not have the authority to simply say that an asset is non-marital and therefore have it excluded from consideration by the judge.

It is the judge who has the power and/or discretion to hear the facts surrounding each item and determine if it is a non-marital, pre-marital or marital asset. Until a judge makes a determination that an item falls into one of these categories and determines what can be done with it, the only way anything can be done with any items during a divorce proceeding is if both parties agree to it in writing and that agreement should also be approved by the court.

Short of the foregoing, both parties remain bound by the Automatic Orders of the Court and nothing should be done with an asset that is outside the scope of those orders.

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.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney

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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Posted by Attorney Christopher A. Pearsall on June 09, 2008 at 06:19 AM in RI Divorce Lawyers on Assets, RI Divorce Lawyers on Court Orders, RI Divorce Lawyers on Equitable Distribution, RI Divorce Lawyers on Marital Assets, RI Divorce Lawyers on Non-Marital Assets, RI Divorce Lawyers on Pre-Marital Assets, RI Divorce Lawyers on Questions | Permalink | Comments (0) | TrackBack (0)

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