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jury chairsUnless you are a lawyer, you probably don’t think about the specific procedures for filing a lawsuit. While you should always work with a knowledgeable Rhode Island insurance attorney if you are considering suing an insurance company, it can also be helpful to understand some of the procedural rules surrounding the case. A recent case heard by the Federal District Court of Rhode Island discusses these procedural requirements.

Jurisdiction

In order for a court to hear a case, they must have jurisdiction over the matter and the parties. Typically, claims related to insurance or personal injury are heard in state court. However, the case may be removed to federal court if certain conditions are met. One of the ways that a case may be eligible to be heard in federal court is through diversity jurisdiction.

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child custodyMost of the time that child custody is discussed, it is in the context of divorcing parents. Of course it is increasingly common for the parents of children to not be married. So what are the rights of Rhode Island parents when they are not and have never been married to the other parent? You should talk to an experienced Rhode Island family law attorney to understand how the laws are applied in your situation, but there are some basics that unmarried parents should know.

Father’s Rights

When a married woman gives birth, her spouse is legally presumed to be the parent of the child. When the mother is not married, paternity first has to be established in order for the father to be given parental rights. Establishing paternity does not necessarily require a paternity test. The father of the child can acknowledge paternity of the child. He can do this through putting his name on the birth certificate or other means. Once the father has been established, then he will have equal parenting rights as the mother, though this does not necessarily mean equal time with each parent.

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property distributionIn a case heard by the Rhode Island Supreme Court, the court evaluated a lower court decision involving hidden assets during a divorce. The parties were married for about nine years by the time the divorce was finalized. The divorce trial took 12 days and the decision issued was 59 pages. The family court magistrate issued its decision in March of 2016 with findings that included that there were irreconcilable differences and the breakdown of the marriage was irremediable. Thus, the divorce was granted.

However, a couple of months after the magistrate issued their decision, the wife filed a motion to allow further evidence to alter or amend judgement. In this motion, the plaintiff argued that there was newly discovered evidence that showed her ex-husband had concealed financial information during the divorce proceedings. The magistrate dismissed all of the issues except for one. The remaining issue involved the defendant’s failure to disclose at trial that he had sold a specific piece of property referred to as the Tourtellot property.

The defendant had purchased the Tourtellot property before the marriage using his own separate funds. However, during the marriage the plaintiff had helped to improve the property, which increased the value. Therefore, the magistrate found that the failure of the defendant to disclose during the trial that the property was sold affected the rights of his ex-wife. The magistrate then compensated the plaintiff by awarding her 60% of the difference between the purchase price and the sale price of the property. He also ordered her ex-husband to pay this amount in one lump sum.

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child custodyGenerally, parents are able to take their children anywhere they want to. However, there are important exceptions to this rule. One common situation is if you share custody of your child with someone else. Another time where you are not allowed to take your child out of the state is if they are in custody of the Department of Children, Youth, and Families (DCYF). One Rhode Island couple found this out the hard way after being arrested in Florida when they took their child there, even though she was in DCYF custody.

Child Snatching Charges

Rhode Island DCYF removed the couple’s infant child from their custody a few days before this incident occurred. The child was placed with a relative, and a family court order prohibited the couple from unsupervised contact with the child.

However, in defiance of the court order the couple went to the house and took their child. They told the relative that they would return the child soon but instead they took her to Florida. They were arrested in Florida, and their infant daughter and other child were returned to DCYF custody. The couple faces child-snatching charges.

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education costsTrusts are a common part of estate planning. Essentially, a trust is useful when you want to put aside property for someone else to manage for the benefit of a third party. For example, a grandparent may put money aside for their grandchild to be used for certain purposes or to be released to them at a specific time, such as at a certain age. In between the time the grandparent sets the money aside and the time the grandchild gets it, it will be managed by a third party called a “trustee.” There are more complicated laws and rules that surround the creation and disbursement of trusts. Your skilled Rhode Island estate planning attorney can help you to understand the best way to set up a trust to fit your circumstances.

People Involved in a Trust

Before we can dive it to what happened in this case, it’s important to understand the roles and titles of the different people in the trust. The person who provides the property that will at some point go to someone else is called the “settlor.” As explained above, the person (or entity) who is entrusted with the money is called the “trustee.” Finally, the person or people who will get the property at a specific point or upon the occurrence of certain events (such as the death of the settlor), are called “beneficiaries.

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lgbtqIt has been five years since Rhode Island legalized same-sex marriage. However, many Rhode Island LGBTQ advocates feel that there are still other rights related to families and parenting that still need to be won. A big concern involves the way that parental rights are bestowed in the state and how that affects same-sex couples.

Reproductive Technology

Reproductive technology has come a long way in the last decade, and the law is having a hard time keeping up. Reproductive technology includes in vitro fertilization, donor sperm, intra uterine insemination and/or surrogacy. Many states have laws that address some aspects of reproductive technology. Rhode Island is one of the few states that has no laws that cover these issues. Continue reading →

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financial issuesWhen a couple gets divorced, one of the first things the court needs to figure out is which property is marital property and which property is separate property. Typically, any property brought into the household during the marriage will be considered marital property. The biggest exceptions to this rule are when the property is given as a gift or bequest to only one of the spouses. Rhode Island is an equitable distribution state, which means that marital property is split “equitably” between the parties during a divorce. It’s important to have a basic understanding of these concepts because it is how the court decides which property is subject to division. Of course, laws can be complicated and only a qualified Rhode Island divorce attorney can give you a true sense of how a court is likely to split property between a couple.

Post-Employment Compensation

In the vast majority of cases, future earnings are not considered marital property and are thus not subject to division. However, this does not count compensation that was earned during the marriage which will be paid later. For example, if one spouse participates in a 401k employer match program, the money put into the account by both the employer and the spouse (including the interest that is earned) will usually be subject to division. However, any contributions by either the employee or employer (as well as the interest from those contributions) after the marriage ends will typically be the sole property of the employee spouse.

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Legal News GavelIf you are considering adoption, one of the things that needs to happen is for the parental rights of the biological parent or parents to be terminated. In a step-parent adoption case, only one parent needs to give up their parental rights. However, sometimes the other biological parent does not consent to the adoption. In these cases, there are some scenarios where the court can terminate the rights of the other biological parent in order to allow the adoption petition to go through. If you are considering stepparent or another kind of adoption, you should contact a skilled Rhode Island adoption attorney to talk about your rights and options.

Facts of the Case

Here, the stepfather of two boys filed a petition to adopt them. Their biological father was incarcerated during these proceedings. He objected to the adoption by the stepfather so the children’s mother and stepfather moved to have his rights terminated. The mother of the children testified that the biological father of the children had not visited the children in over two years and had never paid child support. Even when he was not incarcerated, she testified, his presence in the children’s lives was rare. The biological father argued that he did at times see the children and provide gifts when he was able to. The boys – ages 14 and 15 – also testified that they rarely saw their biological father. They further testified that their stepfather had been a constant and positive presence in their lives for the last eight years and they wanted him to become their adoptive father. The family court found that terminating the biological father’s parental rights and allowing the stepparent adoption would be in the best interests of the children.

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Adverse possession is a real estate concept under which one party can take ownership of the land that another person owned by occupying it for a certain amount of time and meeting certain criteria. Adverse possession allows the person who is actually occupying the property to have official ownership after a period of time. It also gives landowners an incentive to keep an eye on their property and eject anyone who should not be there. If you are concerned about a piece of property that you own, you should contact a knowledgeable Rhode Island real estate attorney to help you understand your rights to the property.Legal News Gavel

Adverse Possession 

In order to prevail on an adverse possession claim, a plaintiff must prove all of the elements by clear and convincing evidence. The requirements for adverse possession are that the possession of the property is actual, open, notorious, hostile, under claim of right, continuous, and exclusive. What this means is that the party that is trying to assert a claim to the land through adverse possession must treat the property as their own, without the permission of the original owners of the property. They also need to be continually occupying the property for 10 years. Once the plaintiff has proven that they have fulfilled these requirements, the court can officially grant them the property.

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Rhode Island is one of the minority of states that recognize common-law marriage. However, there are certain things that are required in order for a court to decide that a couple is in a common-law marriage. One requirement specifically was recently found to be determinative in a case before the Rhode Island Supreme Court. They held that a couple that had been together for 23 years was not deemed to be in a common-law marriage because at different times they represented their relationship in different ways. If the court had found the couple to be in a common-law marriage, it could have affected the rights of the parties upon separation. If you live in Rhode Island and are considering divorce or separation after a common-law marriage, you should contact a skilled Rhode Island divorce attorney today.Legal News Gavel

Lower Court Ruling

The lower court had held that the couple was in a common-law marriage. They based their reasoning on the fact that the couple had been together for 23 years and had frequently told others that they were married. The court heard evidence that the couple would sometimes wear wedding rings, and they raised a child together. The man in the couple referred to the child as his son, even though they were not biologically related. In 1991, the couple became formally engaged but never had a wedding ceremony. The judge held that there was “clear and convincing proof” of the couple having a mutual and present intent to be married.

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