Rhode Island Divorce Lawyers | Affordable RI Divorce Lawyer Christopher A. Pearsall

Child Support in Rhode Island can be Problematic!

Rhode Island child support modification can be a frustrating situation not only for clients but also for lawyers.

CONSIDER THIS SCENARIO

Imagine that you are a client who has placement of three children.  Your ex-spouse is making considerably more money than when you divorced and the cost of living has risen. 

First, you contact a lawyer about your child support rights and whether modification is appropriate. 

Second, after finding out that modification is appropriate you speak with your ex-spouse and he is unwilling to agree to give you a dime more than you are already receiving in court ordered child support.  So you resort to having your attorney send a letter to your ex-spouse asking for agreement of a small increase and that if you cannot agree that a Motion to Modify will have to be filed with the court.

Sounds simple enough doesn't it?  If the ex-spouse doesn't agree then you file a Motion to Modify and the court will modify your child support if you meet your burden of proof, namely that there has been a substantial change in circumstances since the last order was set.

Enter the ex-spouse who gets an attorney friend to serve the placement parent with 6 motions on the day a response is requested.  The placement parent's attorney files a Motion for Contempt and a Motion to Modify Child Support.

The ex-spouse concocts even more and more motions as the initial filing party and the Motion for Child Support which is truly the issue is placed on the back burner by the court.  Despite the efforts of the placement parent's counsel, more and more motions are filed by the ex-spouse to further cloud the issues and take the court on so many tangents that no judge could see the forest for the trees even if he or she wants to.

Here's the clincher for the attorney representing the placement parent.  How do you explain to your client after 3 years of fighting and after the ex-spouse's attorney has filed 35+ motions that there is no end in sight and the family court judge has literally refused to hear the placement parent's Motion to Modify Child Support despite countless direct requests that a hearing be held on the subject?

It is not only a child support issue but a legal frustration both for the client seeking the modification and for the lawyer representing the client.  This is not simply because it makes the lawyer appear inept when he or she may have done everything within his or her power necessary to obtain a hearing, but also because the client is entitled for child support relief for the benefit of the children.

I have had the displeasure of seeing several unfortunate circumstances similar to the one described.  In truth the problem is caused not only by the system but by lawyers who may be questioned as to whether they are acting within the boundaries of their ethical obligations and are abusing the system.

Unfortunately one lawyer usually has no control over another lawyer who is trying to bury a valid Motion for Child Support Modification under a mound of motions so deep   that the court will never see it and never address it.

The question then becomes, does the placement parent who is moving for the modification of the child support have an entitlement or right to a hearing on the subject. 

Rhode Island law regarding child support gives family court judges discretion as to whether to award the moving party child support retroactive to the date the motion was filed.  Assuming for a moment that the motion is heard 3+ years later by the court, what do you think the chances are that the non-placement party will be ordered to pay 3+ years of retroactive child support? 

As a Rhode Island lawyer, I can tell you quite frankly that it is slim to none that the placement parent will be given the rightful award of child support retroactive to the date of filing.  This is most likely because the amount of retroactive support is likely to be seen as so large as to appear to be punitive.  Since the court does not award child support as a punitive measure and judges are afforded this retroactive discretion the award of retroactive child support is unlikely at best.

As a lawyer, it is not an enjoyable task to explain to your client that a retroactive award of child support for the children is unlikely without even having had a hearing.  Perhaps the more difficult part for an attorney is realizing that when a family court judge fails to hear a Motion to Modify Child Support in a timely fashion and otherwise may fail to exercise his or her discretion to grant support retroactive to the date of the Motion to Modify, that judge is more than hurting the placement parent, that judge is depriving the minor children of support that they are entitled to from the non-moving parent.

It should always be remembered, both by lawyers and by the courts that child support, and thus Motions to Modify Child Support, relate to the parent's exercise of rights on behalf of the children.  Thus, if a Motion to Modify Child Support is granted, shouldn't it also be correct and proper to grant the child support retroactive to the filing date.  It causes one to question why a retroactive ruling is not always the case and why the family court judiciary are afforded discretion in this regard which deprives minor children of child support to which they are entitled.

What then can a lawyer or pro se individual do when faced with a Motion to Modify Child Support that he or she seemingly can't get before the court? 

Stay the course!  Do not diverge from the purpose of your motion to modify.  Continuously bring the court's focus back to this Motion over and over again.  Make every effort not to let the court get side-tracked by opposing counsel, opposing motions and other obstacles that are not as crucial to the well-being of the minor children.  Emphasize to the court that the longer the motion goes unheard the longer the children go without necessary child support in an ever worsening economy. 

This is a situation where you must have laser-like focus and purpose to insure to the best of your ability that the Motion to Modify Child Support is heard.   The court has often focused on the fact that one of it's foundational tenets is the best interests of the minor children.  Most assuredly the financial best interests of the minor children are among the most important.  Food, clothing, education, shelter and medical care are all part of the financial aspects of child support.  Without increases when warranted by the court and awarded by the court, the minor children suffer. 

Though there are no guarantees, this is the best avenue of focus, for your client seeking modification and for the children who NEED the modification.

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

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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The Other Man - The Other Woman - Opposing Subpoenas!

In a Rhode Island Divorce a common practice of family lawyers is to subpoena the person their client alleges is "the other woman" or "the other man" who has broken up the marriage.

EXAMPLE

Todd and Marlene have been married for ten (10) years.  Marlene didn't see the signs that Todd was extremely unhappy in their relationship.  Todd files for the divorce.  Marlene is in shock when Todd files for divorce and instantly forms the belief that there must be "another woman" because she sees no reason why Todd would file for divorce otherwise.  Marlene starts putting together a list in her mind of females that his husband knows from work, little league practice for their son, and friends of hers that have been around her husband.

Marlene hires an attorney and files a counter-claim for divorce.  Eventually Marlene narrows down her list to the one or two people she suspects had an affair with her husband.  She starts following Todd around and finds that Todd is having lunch occasionally with one of those people.  Marlene forms in her mind the belief that this woman must be "the other woman" who broke up her marriage.  Marlene is now angry at both her husband Todd and this woman.  Marlene's attorney subpoena's the woman Todd was having lunch with into court, usually around the time of the trial.

ATTORNEY TACTICS

Unfortunately this is an all too common tactic that attorneys take in a divorce matter that causes divorces, in my humble opinion, to escalate beyond control or to immediately settle a case in an inequitable manner.

Let me explain.  The "other woman" as in the example may have no basis what so ever.  The fact is, people grow apart.  The parties in a marriage are often blind to the signs of the breakdown especially if both parties do not have good communication skills with one another. 

Denial is often an initial reaction to the recognition that divorce is taking place or is on the immediate horizon.  The person being divorced does not wish to believe that he or she is unattractive, boring, unyeilding or unworthy or being loved as a spouse in the marital relationship.  That denial, if not tempered with reason, often leads to the conclusion that there must be another person in their spouse's life that caused the marriage to break down.  This is because the spouse cannot, or will not, come to terms with the fact that the marriage simply wasn't a good match or that their spouse was looking for something in his or her life and thought it was present in the other spouse only to find that it wasn't.  Some spouses marry with blinders on.  They see the good qualities of the prospective spouse and then simply hope (or even expect) that over time if they marry the person that the remaining characteristics and qualities they do not see in that person will develop  . . . or they believe that the person will change because of their influence.

Whatever the circumstances, divorce lawyers will not hesitate to subpoena one or more persons that the spouse believes is (or could be) the person that caused the breakdown of their marriage.  This person is seen as the alleged "homewrecker". 

The purpose of subpoenaing the alleged homewrecker is two-fold.  First, when an attorney does this at the wishes of the client (especially without any proof that anything has occurred) it seemingly validates the beliefs of the client that there was in fact a "homewrecker" who ruined the marriage.   Regrettably I have found this to be true mostly in the case of women who feel scorned or rejected when the man files for divorce.

Second, whether the person subpoenaed is a love interest or simply a friend and confidant that the husband has chosen to confide in and is part of his support system to get through the divorce, it puts pressure on the man to keep the love interest, friend or even girlfriend out of the "divorce battlefield" to prevent her from experiencing anxiety, humiliation or any other fallout from the scorned wife.  This in turn has a third effect of leveraging the husband (at least in this example) to succumb to the demands of the wife's attorney even if they are unreasonable and inequitable purely to protect a person who may in truth simply be a friend who is supporting the man through the divorce process by being a listener or sounding board.

WHAT CAN THE "ALLEGED HOMEWRECKER" DO?

He or she can make a Motion to Quash before the court.  A Motion to Quash is a motion asking the court to invalidate the subpoena either permanently or temporarily based upon the circumstances.

The Rhode Island Family Court Judges generally have a good grasp on the reasonableness of a subpoena used in these situations.  A judge will not typically allow the unfettered intrusion into the life of person who is only alleged to be a person who has caused the breakdown of the marriage, especially if the subpoena to the third party (ie the alleged homewrecker) demands the production of documents (called a "Subpoena Duces Tecum") that invade the life and personal finances, etc . . . of the third party.  Without corroboration from the spouse who is alleged to have had the affair, or some other corroboration, there is a very good chance that the court will quash or invalidate the subpoena.

Typically the "alleged homewrecker" can orally or in writing, move to quash the subpoena.  It is best that if the person served with the subpoena is going to do this that he or she have more than one basis for doing so. 

REASONS FOR QUASHING A SUBPOENA in these circumstances include:

1)  It is intended merely to harass the person served and/or cause him or her anxiety;

2)  It is believed that it was issued merely to force a party to agree to inequitable terms in order to prevent one parties' friend from being embarrassed and humiliated by even the accusation the he or she was involved in an extramarital affair, thus it is being used to cause undue duress on the party alleged to have been involved in an affair;

3)  That the subpoena demands documents that are invasive of a reasonable person's right to privacy;

4)  That the subpoena was untimely served (requests for documents should provide at least 2 to 3 days for the person served to obtain the documents);

5)  That the subpoena was improperly served (A Rhode Island Subpoena must be served (a) personally, (b) by a person authorized to serve process in Rhode Island, (c) with the State of Rhode Island, (d) with a check for witness fees of  approximately $12 to $14).

6)  That the subpoena should, in the very least be invalidated, subject to the serving party's establishing a foundation for the subpoena and/or the alleged relationship between that party accused before the third party's privacy is violated.  Attorneys call this "quashing the subpoena subject to establishing foundation.";

7)  The subpoena cannot be complied with without undue risk of loss of employment of the subpoenaed individual with explanation as to why there is undue risk (i.e. brand new job and can't take time off);

8)  The subpoena cannot be complied with due to illness with a physician's note, preplanned vacation with proof of same, employment obligations out of state on the time and dates compliance with the subpoena is required.

THE POINT

Persons alleged to be the "other man" or the "other woman" who have been served with a subpoena in a divorce matter do have options of recourse to prevent this attorney's tactic.  Persons served may oppose the subpoena for these reasons and other basis of good cause if they do so timely and do not sit on their rights (i.e. wait til the last minute).  The longer a subpoenaed person waits to oppose a subpoena, the less likely it is that the court may grant the requested relief (i.e. that the subpoena be quashed in whole, in part, or subject to establishment of foundation).

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.
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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
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers | TheModernMom.com| WholesaleQuiltBatting.com | Mesothelioma-Cancer-Articles.com