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

Alimony Language - Rhode Islander's Take Care! Part 2

This Rhode Island divorce tip article is a follow-up to my first tip article which may be found at http://www.rhode-island-divorce-lawyer.com/2008/11/alimony-language-rhode-islanders-take-care-part-1.html

This first tip article is helpful, if not essential, to helping you understand rehabilitative alimony in Rhode Island.  Therefore I recommend that you read my first alimony tip article if you do not already know how Rhode Island law treats alimony in general.

Lanuguage is crucial in both Rhode Island Settlement Agreements and especially in the Rhode Island divorce proceedings when it comes to alimony awards and alimony waivers.

Whether you are representing yourself or you have a Rhode Island lawyer to represent you in your divorce proceeding, it is best to be vigilant when it comes to the language used by you, your lawyer and even the judge.  In this divorce tip article the crucial word you should focus on is "non-modifiable."

Leaving out the word "non-modifiable" in your Marital Settlement Agreement or failing to clarify to the judge a request for the court's order to include the word "non-modifiable" could lead to hazardous consequences.

Consider this Rhode Island Divorce example about Mr. and Mrs. Lawyers:

Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of $400 per week for a period of three (3) years in their Marital Settlement Agreement and he has testified to that on the record of the court.  Mrs. Lawyers agrees that Mr. Lawyers' testimony is accurate and that $400 per week for three (3) year is precisely what they agreed to in their Marital Settlement Agreement.

Mrs. Lawyers testifies that she wants to waive alimony after that three (3) years has been paid, that she knows that this waiver would be permanent, and that she believes she will be able to sustain herself at the end of the three year period and therefore she would like the court to grant her permanent waiver.

At the end of the hearing, the Court orders the following:

Mrs. Lawyers is awarded weekly alimony of $400 per week for a period of three (3) years from Mr. Lawyers and that upon completion of the three (3) years Mrs. Lawyers' request for waiver of alimony is granted and she waives alimony permanently.

Do you notice that the word "non-modifiable" does not appear anywhere in the excerpt of the testimony above?  Do you notice that Mrs. Lawyers confirmed that it is "precisely what they agreed to" in their Marital Settlement Agreement? 

Let's assume this is correct and that the Marital Settlement Agreement doesn't contain any reference to alimony being "non-modifiable". 

Now, imagine that Mr. Lawyers secures a job that pays considerably more than his last job, that he becomes a partner in a very profitable business, that he creates a very successful invention, that Mrs. Lawyers gets into a tragic accident in the first year after their divorce which leaves her with brain damage which prevents her from proceeding with her attempts to rehabilitate herself and become self sustaining.

Choose any one of these events or any other event that you might think of that drastically affects the earnings or abilities of Mr. and Mrs. Lawyers within the three (3) years alimony is to be paid.

What is important here is what Mrs. Lawyers DID NOT agree to!

Even though Mrs. Lawyers waived alimony permanently after the three (3) years of payments, she DID NOT agree at any time that the alimony during those three (3) years would be non-modifiable.

If Mrs. Lawyers wanted to, she could retain a Rhode Island lawyer and once again return to court and request that the alimony she is receiving in those first three years be increased based upon either Mr. Lawyers' increase in his ability to pay more alimony and/or her own decrease in her ability to provide for herself over the long term as planned.

Though the agreement provided for $400 per week of alimony for a period of three years, this merely indicates to the court that this is an amount and timeframe that was either agreeable to the parties or ordered by the Rhode Island family court judge at the time of the divorce.  However, without the word "non-modifiable" before the word "alimony" this DOES NOT prevent Mrs. Lawyers from arguing that neither the parties or the court intended that it could not be modified during that three (3) year period if circumstances changed which warranted a modification of the amount of alimony.

What could this mean for Mr. Lawyers?

If either Mr. Lawyers or his Rhode Island attorney did not add that one word "non-modifiable" then Mr. Lawyers could end up paying $600, $900 or even $1,200 per week to Mrs. Lawyers for the remainder of the three (3) year period, if the Rhode Island family court judge found that Mrs. Lawyers had that need for such alimony and Mr. Lawyers was capable of paying that amount of alimony.

What monetary difference could this make to Mr. Lawyers?

Let's say the court found Mr. Lawyers had the ability to pay Mrs. Lawyers Rhode Island alimony in the amount of $900 per week for the last 28 weeks of the three (3) year alimony period that was agreed upon.  Let's also assume that the court held Mrs. Lawyers to the three (3) year period of alimony because she had validly waived alimony permanently after that three (3) year period of time.

Mr. Lawyers had agreed to pay $400 per week.  Mr. Lawyers is now ordered to pay an extra $500 per week for the last twenty-eight (28) weeks.  This now requires Mr. Lawyers to pay Mrs. Lawyers an extra $14,000 that he hadn't planned on.

To Mr. Lawyers and/or Mr. Lawyers' Rhode Island attorney, the omission of that single word . . . "non-modifiable" . . . just cost Mr. Lawyers $14,000. 

The words you use in your agreement and the words used in the order by the court are crucial.  Care should be taken in drafting any alimony provision in a Rhode Island Marital Settlement Agreement.  Care should also be taken to make sure that the word "non-modifiable" is used by the court in its order, if that is what is intended or expected by the parties.

In this example it was worth $14,000 to Mr. Lawyers.  That's one very costly word, don't you think?

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* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*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

Alimony Language - Rhode Islander's Take Care! 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

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce* Lawyer & Family Law* Attorney

Copyright 2008. Christopher A. Pearsall
A New Rhode Island Divorce Lawyer for a New Millenium!

*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

A Tip from one of Rhode Island's Divorce Lawyers. The Four (4) Major Factors!

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

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, A New Rhode Island Divorce Lawyer for a New Millenium

*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 |  

RI Lawyers Should Know We Have Fault Divorce Grounds!

How does a Rhode Island divorce lawyer who is seemingly competent make the mistake of advising clients and people in general, through writings, articles, press releases or other literature or publications that Rhode Island is a NO FAULT state when it comes to divorce? 

I've seen this on several lawyer's websites and I've seen this on generic legal sites that try to entice you to come to their sites so they can help hook you up with a legal referral service from which I can only presume they receive some kind of kickback or monetary remuneration. 

Yet for heaven's sake, shouldn't a lawyer at least get the fundamentals right!  It's no wonder lawyers have a bad name when lawyers go out of their chosen field of expertise and give answers that are incorrect simply because they don't want to lose a client or appear inept.  This becomes a stereotype that is then applied to all lawyers.

Well, let me set the record straight.  Any lawyer, whether they are licensed to practice law in Rhode Island or not, who tells you that Rhode Island is a NO FAULT state when it comes to divorce, simply does not know what they are talking about.  Frankly, if after reading this article you go ahead and hire such a lawyer then you deserve exactly what you get.

This is and should be an easy question for any Rhode Island lawyer who professes to practice before the Rhode Island family courts.  Even if it isn't known off the top of the lawyer's head, he or she should be able to look up the answer in a matter of 60 seconds.

Here's a quick lesson.  A state that is considered a NO FAULT divorce state is one in which divorces are not granted based upon the fault of either party.  In other words all grounds for divorce in that "NO FAULT" state are not based on the fault of either party.

I've heard it stated by Rhode Island lawyers and I've even seen it published by Rhode Island lawyers that Rhode Island is a NO FAULT divorce state.   WRONG!  WRONG!  WRONG!

Frankly, I don't have to tell you it's wrong at all.  The Rhode Island General Assembly that makes the laws of our state has already said it.

Though Rhode Island Family Court judges and most parties prefer divorces that are based on irreconcilable differences (which WOULD be a NO FAULT divorce) that is not the only grounds for divorce.   The following section of the Rhode Island General laws spells out the additional grounds for divorce as follows:

§ 15-5-2  Additional grounds for divorce. – Divorces from the bond of marriage shall also be decreed for the following causes:

   (1) Impotency;

   (2) Adultery;

   (3) Extreme cruelty;

   (4) Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;

   (5) Continued drunkenness;

   (6) The habitual, excessive, and intemperate use of opium, morphine, or chloral;

   (7) Neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and

   (8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.

Now, if any Rhode Island lawyer who professes to you that Rhode Island is a NO FAULT state.  Please have him or her explain to you how each of these items lacks a condition or action by either one or both parties that is not fault based.  Then, please give me a call and explain it to me.

My point is simply this.  Rhode Island is NOT a NO FAULT divorce state.  This is an easy way to determine if the lawyer you are considering engaging for your divorce matter knows what he or she is talking about or not.  If you ask the lawyer if Rhode Island is a NO FAULT divorce state and he or she says "yes" . . . then I highly recommend finding a new lawyer to interview.

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
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, 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

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
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, 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

The Alcoholism Policy of the Rhode Island Family Courts

As a Rhode Island Divorce Lawyer perhaps one of the more controversial issues I've dealt with is the case of the alcoholic spouse or parent. 

Officially, the policy statement of the Rhode Island family court is stated on their Family Counseling Unit Services form which is filed with every divorce.  The Family Court's policy statement reads as follows:

Policy Statement:  The Family Court recognizes alcoholism as an illness and that such drinking problem is treatable and that entering treatment or counseling will not be prejudicial to legal issues in the court.  The court is sensitive to the family problems raised by problem drinking and wishes not to be considered an obstacle to help in these matters.

The question for Rhode Island divorce and family law lawyers is whether to simply explain to clients that they should simply accept this as the court's policy, or whether to advocate that they take whatever position serves their ends in family court.

The issue is more problematic when personal beliefs conflict with family court policies.  This is true both for the individual who chooses to represent himself or herself as well as Rhode Island divorce lawyers who may disagree with policy.

Neither those who represent themselves in court nor divorce lawyers in Rhode Island are required to conform their own personal or professional beliefs to the family court's policy statements.  These policy  statements merely set forth the family court's view as a governmental body to the treatment of . . in this case. . . alcoholism in matters before the family court.

It would not surprise me if there are perhaps many individuals and even many Rhode Island divorce lawyers and family law practitioners who disagree with the treatment of alcoholism as an "illness."   This may be perhaps because the use of other drugs, whether by prescription or otherwise are thought of more along the lines of a voluntary addiction than is alcoholism.  It is as yet an unanswered question to many as to why only "alcoholism" is the subject of a policy statement on an official court form.  Is alcoholism deserving of special treatment when there are addictions and illnesses that are just as prominent and just as devastating to families in divorce and other situations.

In the end, the best bet for Rhode Island family lawyers and individuals who seek to represent themselves is to take the position that best furthers their case in family court whether it is contrary to the policy statement or not.

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
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, 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 | WholesaleQuiltBatting.com | Mesothelioma-Cancer-Articles.com

Domestic Violence - Protection from Abuse - Mistakes!

Rhode Island law provides for persons subject to physical violence or threats that create a reasonable fear of imminent physical harm to obtain from the court an Order of Protection for that physical violence or threat of imminent physical harm.

This Order is most often sought by women who represent to the court that they are in fear of their husband or significant other based upon some recent conduct he has done.  The Order typically restrains and enjoins the man from harassing, molesting, stalking, cyber-stalking or in any way contacting the complainant at home, at work or on the street.  The  Order may also require the threating party to leave the marital home or the residence where both parties may reside until the matter may be heard within three (3) weeks after the judge grants the initial Order based solely upon the claimant's affidavit.

Perhaps the biggest mistake serious complainants who have been threatened or harmed make is to appear at the hearing three (3) weeks later without a Rhode Island family law lawyer and dismiss the complaint.  This could be for any number of reasons, including a change of heart, a continued hope that the abuser will change, guilt associated with excluding the father from his home or children, or pressure from other family members.

I mention this because most often what occurs is this.  The abuser is allowed to continue the course of conduct he or she has caused or is not taught that this conduct is unacceptable.  Abusers typically will continue to contact the complainant even after they have been served with the Protection from Abuse Order.  Regrettably, the complainant who has obtained the Protection from Abuse Order allows this conduct and does not call the police to have the Order enforced.  Unfortunately, it is often because the "contact" is often apologetic, endearing and pleading by the abuser in an effort to get the complainant to do exactly what I have mentioned here, namely to go to the court hearing in three (3) weeks and drop the Protection from Abuse Order.

What the complainant should be considering are questions such as the ones listed below in order to avoid making a big mistake.

1)  How long have you had a relationship with the abuser?

2)  How extreme was the conduct of the abuser when compared to the length of the relationship

3)  Is this a one time instance of abuse or has the abusive conduct been gradually increasing?

4)  If you have children, will this choice be the best for the child or children or will you be subjecting them to further abuse?

5)  Are you being guilted into this decision?  Or are family members pressuring you to drop this?

6)  Do you honestly believe that the abuser has changed in just a few short weeks

Complainants should seriously question their decision to drop a Protection from Abuse Order.  The law is there to protect you.  If your complaint is genuine, the use of the law is appropriate and you could return to court in the future to ask the court to remove the Protection from Abuse Order.  However, it is unwise to disillusion yourself into thinking that the abusing party has changed in such a short period of time.

To the contrary, if you have used the system simply to teach the "alleged abuser" a lesson, then do the court and everyone else a favor and drop the restraining order.  You are wasting your time, the court's time and resources and misusing the law for your own purposes which the law wasn't intended to address.

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
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, 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

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.
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