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The term easement frequently comes up in Rhode Island property law cases. In the most general terms, an easement is a legal term referring to a non-owner’s right to use another’s property, usually for a specific purpose. For example, a property owner who owns land that is near the beach may have an easement over another property owner’s land to gain access to a beach. This is called a beach access easement.

There are many facets of Rhode Island easement law; however, it is beneficial to first understand the two types of easements: easements appurtenant and easements in gross. An easement appurtenant is tied to a particular parcel of land and remains with the land through changes in ownership. An easement in gross, on the other hand, is assigned to a particular person, business, or entity, and cannot be sold, transferred, or given away.

An easement can come into existence in several ways. Some easements are created based on an agreement between parties, whereas others are issued by courts as a result of a Rhode Island property dispute. A few common types of Rhode Island easement definitions will be discussed below.

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When a couple goes through a Rhode Island divorce, there are many issues that must be resolved. For example, the division of the couple’s assets, who will take on the responsibility for the marital debt, which party will get to remain in the marital home, and whether there is the need for spousal support. If the parties have not entered into a valid prenuptial agreement, Rhode Island courts will apply a set of default rules to resolve these issues. However, many couples are not satisfied with the default rules and choose to enter into a Rhode Island prenuptial agreement.

What Is a Prenuptial Agreement?

A prenuptial agreement, also called a premarital agreement, is a contract that is entered into in anticipation of marriage. Under Rhode Island’s Uniform Premarital Agreement Act, a premarital agreement can cover a broad range of issues, including:

  • The rights of the parties to use property;
  • The disposition of property upon separation or divorce;
  • The modification or elimination of spousal support;
  • Ownership of either parties’ life insurance benefits; and
  • The choice of law governing the divorce proceeding.

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The issue of how a couple’s assets and liabilities are divided up is one of the most contentious issues in many Rhode Island divorces. Indeed, it is not as simple as merely dividing everything in half. Instead, Rhode Island uses an equitable distribution model when determining what each spouse is entitled to after a divorce is finalized.

Typically, an equitable distribution framework consists of three parts. First, a court must determine which assets are considered marital property. Importantly, nonmarital assets are subject to equitable distribution. However, the determination of whether something is a marital or nonmarital asset is not always straightforward.

Marital Versus Nonmarital Property

Generally speaking, most assets acquired during a marriage are marital property. However, inheritance, gifts, and proceeds from lawsuits are not typically considered marital property even if they are received during the marriage. Thus, in a recent Rhode Island divorce case the court determined that a car that was purchased during the marriage with funds that Wife was gifted by her parents before the marriage was not marital property subject to equitable distribution. The court also determined that a subsequent gift from Wife’s parents to Wife was considered nonmarital property although it was deposited in the couple’s joint bank account.

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In Rhode Island, all motorists are required by law to maintain a certain amount of auto insurance on their vehicles. Under Rhode Island General Laws section 31-31-7, motorists must obtain liability insurance of $25,000 per person and $50,000 per accident. In addition, motorists must obtain $25,000 worth of insurance per accident for property damage. Liability and property damage insurance protects the policyholder in the event that they cause a Rhode Island car accident by covering the costs incurred by victims of the accident. However, it is estimated that 17% of Rhode Island drivers do not maintain sufficient insurance on their vehicles.

If someone is involved in an accident that was caused by another motorist’s negligence, the at-fault motorist will be responsible for any injuries suffered by the accident victims. However, if the at-fault motorist does not have insurance, the accident victim will only be able to pursue a claim against the driver, who may not have the assets to compensate the injury victim adequately. This is where uninsured/underinsured motorist (UIM) protection comes into play.

Underinsured/Uninsured Motorist Protection in Rhode Island

Under a UIM policy, a policyholder is protected from accidents caused by an at-fault motorist who either has no insurance or does not have sufficient insurance to fully compensate the policyholder for the damages caused by the accident.

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For the most part, the government stays out of how parents raise their children. In fact, the United States Supreme Court has held that “parents have a fundamental liberty interest in the care, custody and management” of their children, and that a parent’s rights will not “evaporate” merely because they are not model parents or because they have lost temporary custody of their children. However, at some point, when the state government believes that children are being neglected, abused, or otherwise in danger, the state will intervene.

In order for the state to terminate parental rights, they must establish one of the facts outlined in Rhode Island Statutes section 15-7-7. The list of reasons for which the state can terminate a parent’s rights is not limited by those laid out in section 15-7-7. Instead, the statute provides examples of situations where termination may be appropriate. For example, if a parent is found to have willfully neglected the needs of a child for at least one year despite being financially able to meet them, the state may move to terminate parental rights. Other examples include:

  • a parent’s long-term imprisonment;
  • a parent’s abusive conduct toward a child;
  • the child’s placement with the department for children, youth, and families for 12 months due to a parent’s substance abuse issue, when it does not appear as though the child will be able to return to the parent within a reasonable amount of time; or
  • when a parent’s other child or children have been placed in the custody of the department for children, youth and families, and it does not appear that providing additional services to the parent will result in reunification within a reasonable amount of time.

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When a couple with children divorces, one spouse will retain custody of the children and the other spouse will likely be required to make Rhode Island child support payments. In Rhode Island, the right to child support payments belongs to the child, rather than the receiving spouse, so parties are unable to negotiate a pre-determined amount of child support in the event of an upcoming divorce.

Instead, Rhode Island courts employ an income shares model in which the adjusted gross income of both parents is used to determine the child support amount owed by the non-custodial parent. Courts must begin by using the model, but can always order the non-custodial parent to pay additional child support.

Rhode Island Child Support Calculations

To begin, courts will consider the monthly gross income of each of the parties. Then, the court will subtract out any mandatory deductions, such as child support payments to other children, health insurance premiums, and the cost of childcare. Courts may also consider a number of discretionary deductions, such as retirement benefits, life insurance payments, income tax adjustments, significant medical expenses, and the payment of marital debts. However, it is important to note that judges will not consider these factors as a matter of course, and the decision of whether to subtract discretionary deductions is made on a case-by-case basis.

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No one likes to think about what is going to happen with their property after they die; however, by thinking about the issue now, loved ones can be spared the enormous expense and hassle of dealing with the process after the fact. Thus, everyone should create a will to determine how they want their property divided in the event of their death.

If someone dies without a Rhode Island will, they are said to have died “intestate.” Each state has a set of laws that apply when someone dies intestate. In Rhode Island, the intestate laws are contained in Rhode Island General Laws, Chapter 33-1.

Intestate laws can be complicated, and the manner in which a decedent’s property is divided depends on whether they are married and have children or grandchildren. The laws prioritize the spouse and children of the deceased; however, parents and siblings can end up with the entire estate if someone dies unmarried and without children. In many cases, Rhode Island intestate laws may not make sense and may not adequately effectuate the wishes of the deceased.

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Recently, a state appellate court issued a written opinion in a Rhode Island family law case discussing whether a letter that was written by a child to her father as part of a therapeutic exercise could be admitted into evidence in a hearing determining whether the father’s parental rights should be terminated. Ultimately, although the letter was an out-of-court statement, the court concluded that the letter was admissible.

The Facts of the Case

This was not the first time this particular case came before the Supreme Court of Rhode Island. In fact, the procedural history of the case is quite complex. To summarize the facts, the Department of Children, Youth, and Families (DCYF) moved to terminate Father’s parental rights after it was determined that his daughter was not provided a “minimum degree of care, supervision or guardianship.” At the time, the Father was incarcerated for murder. Father’s parental rights were ultimately terminated, based primarily on the fact that Father was imprisoned and his daughter had been in DCYF custody for 12 consecutive months. Evidence was also presented suggesting Father physically abused and neglected his daughter.

After the termination order, Father’s conviction for murder was reversed. Father then sought to appeal the decision terminating his parental rights. In opposition to Father’s request, DCYF offered the testimony of the daughter’s therapist.

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When many people think about a marriage, they picture a big celebration in which a couple exchanges sacred vows. However, in Rhode Island and a handful of other states, a couple can legally be married without having ever had a wedding, exchanged vows, or even signed a contract. This is the concept behind a Rhode Island common law marriage.

A common law marriage is simply a marriage without a legal ceremony. While the concept of a Rhode Island common law marriage is easily explained, determining whether a common law marriage exists can be quite tricky. Previous cases have held that the burden to establish a common law marriage rests on the party claiming the marriage exists and that a common law marriage must be proven by clear and convincing evidence. While this is a high standard, it is one that can be met under the appropriate circumstances.

In most states including Rhode Island, a common law marriage cannot be established through mere proof that a couple lived together. In general, Rhode Island courts will consider three factors when evaluating a couple’s relationship:

  • Proof that the couple cohabited, or shared a household;
  • Evidence that the couple intended to be married; and
  • Whether the couple held themselves out to the public as a married couple.

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The importance of a child having a relationship with both parents is beyond dispute. Not only do children look to their parents for financial and emotional support, but children may be entitled to an inheritance or other benefits based on the status of their parents. Establishing paternity can also be important to mothers who are seeking an order for child support to assist with raising a child or fathers who wish to obtain child custody or visitation rights. In Rhode Island family court, paternity can be established in one of several different ways. If you have questions that relate to paternity, reach out to a Rhode Island family law attorney.

Establishing Paternity by Agreement

Perhaps the most straightforward way to establish paternity in Rhode Island is through an agreement by the parties. If a man is present at the birth of a child, he can be listed on the child’s birth certificate as the father. If a father is not present at birth, or only later agrees to be named as the father of a child, the parties can name a man as the father of a child at the Office of Child Support Services.

Establishing Paternity by DNA Test

If the parties do not agree on the issue of paternity, the court may order a DNA paternity test. Under Rhode Island General Laws section 15-8-11, a court can order a paternity test if paternity is disputed. If the test returns a result indicating that a man is at least 97% likely to be the father, the results will create an irrebuttable presumption of paternity presuming the moving party can establish that the child’s mother and putative father had sexual intercourse during the period when the child was conceived.

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