Articles Posted in Divorce

Published on: October 5, 2023

Rhode Island Supreme Court Affirms Relocation Order

If a child’s parents do not live together, relocation can pose difficult problems related to custody and visitation. When one parent with primary custody relocates to another state, the move may affect the other parent’s ability to visit the child. In deciding whether to grant or deny a relocation request, Rhode Island courts often determine whether relocation is in the best interests of the child. A recent Rhode Island Supreme Court case shows how courts weigh the child’s best interests when evaluating a relocation request.

According to the facts discussed on the court’s decision, a mother sought to relocate with a child to another state. The mother and father, who never married, separated shortly after the child’s birth. The family court previously granted the mother temporary custody and physical possession, and it granted the father visitation. After being furloughed from her job, the mother relocated to Massachusetts to accept a new position and lived with her parents. As a result, the mother filed an emergency motion to permanently relocate to Massachusetts with the child. Later, she accepted a third position close to her parents’ home, which was nearly two hours from the father’s Rhode Island town. In her motion, she explained that she was previously paying $2,000 in rent in Rhode Island, commuting almost two hours to work, and working long hours. In Massachusetts, she could stay with her parents, reduce her living expenses, and rely on her parents for childcare assistance. The magistrate judge granted the mother’s motion to permanently relocate to Massachusetts, finding that relocation was in the best interests of the child. The father appealed to family court, which affirmed the decision. The father then appealed to the Rhode Island Supreme Court.

On appeal, the father argued that the primary reason the mother asserted for her relocation, her new job, was no longer valid since she accepted a third position. Therefore, the father suggested that the mother should have looked for new employment and housing closer to his Rhode Island home. The Rhode Island Supreme Court disagreed. The court concluded that the family court properly found no error with the magistrate’s decision. In reaching its conclusion, the court cited the mother’s desire to be closer to her parents and save costs on rent and childcare. The magistrate appropriately recognized the mother’s desire to prioritize her son’s emotion well-being and compensated for a loss of income to spend more time with him. By contrast, the father testified that he had no family in Rhode Island who provided additional daycare for the child. While the father offered the mother financial support and intended to change his work schedule to be a primary caregiver, the magistrate properly recognized that the mother had taken more action to make herself available for her son. Finally, the court noted that the family court record reflects the magistrate’s conclusion that the father’s relationship with his son will continue. Specifically, it explained that the mother was willing to make arrangements around the father’s work schedule and keep the father informed about the child’s medical appointments. Therefore, the court found that the family court did not err in affirming the magistrate’s decision to grant the relocation order based on the child’s best interests.

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Published on: September 29, 2023

Complications of Dividing Pensions and Retirement Accounts in the Event of Remarriage after a Divorce

By Bilodeau Capalbo, LLC

Rhode Island matrimonial law generally entitles a divorcing spouse to a portion of the other spouse’s retirement or pension assets that accrued during the marriage. This general rule appears to be straightforward, however, it can be distorted in practice. An especially difficult situation can arise when a spouse remarries after a divorce, and both their ex-spouse and current spouse may have a claim for the benefits. A division of the Rhode Island Superior Court recently decided a case in which a former spouse had sued the widow of a deceased man, seeking retirement benefits to which she was awarded in the prior divorce.

The plaintiff in the recently decided case divorced her husband in 1995. As part of a property settlement, the parties agreed that the plaintiff would be entitled to half of the man’s retirement account in lieu of an alimony award. The man remarried years later and continued to accrue retirement benefits from his employer. The man died in 2020, and both his former spouse and his widow sought the surviving spouse benefits from the man’s employer. After the employer refused to award the benefits to the ex, she sued both the employer and the widow, seeking to enforce the divorce agreement and receive the retirement benefits.

After discussing the relevant laws, the Court ruled that the widow was entitled to all of the retirement benefits. Notably, the court found that because the 1995 divorce settlement agreement was “incorporated but not merged” into the final divorce judgment, the settlement was not enforceable by the family court and instead simply as a contract between the parties. Because the laws dictating the dispersal of pension benefits superseded contractual obligations in this case, the ex-spouse did not have a valid claim over the assets.

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Published on: July 7, 2023

Rhode Island Supreme Court Affirms Wife’s Asset Award and Husband’s Sanctions for Failing to Disclose Assets

By Bilodeau Capalbo, LLC

When parties undergo divorce proceedings, they must fully disclose their assets. The trial court will then determine which assets are separate property and which are marital property subject to equitable division between the parties. However, issues arise when a party is dishonest about the existence or value of their assets. Some people may attempt to conceal their assets to prevent the court from dividing them up. However, if a party fails to disclose a marital asset, the court may impose monetary sanctions against them. A recent Rhode Island Supreme Court case demonstrates the consequences of hiding assets from an ex-spouse and from the court.

According to the opinion’s account of the divorce proceedings below, the husband failed to respond to the wife’s requests to identify marital property and concealed several assets including his pension, workers’ compensation, Certificates of Deposit (CDs), undisclosed accounts, and ownership of the marital home. After several warnings, the trial judge sanctioned the defendant $1,000 per day that the husband failed to provide the requested documents showing proof of his assets, totaling $50,000. The husband argued that the assets were his separate property, though the wife paid what she believed to be her share of the mortgage every month. The trial judge awarded the wife 50% of the value of the husband’s pension, CDs, and the marital home’s appreciation in value. The trial judge also found that the appreciation of the wife’s second home was her separate property, as the husband’s remodeling projects did not contribute to the increased value.

On appeal, the husband argued that the trial judge erred in assigning marital assets to the wife, classifying the wife’s home as separate property, and imposing sanctions against him. He also claimed that the judge abused her discretion and disfavored him in the proceedings below. The high court affirmed the trial judge’s ruling. First, it reasoned that the husband’s decision to delay retirement should not deprive his wife of the pension. Second, the court found that the trial judge acted within her discretion in awarding 50% of the husband’s CDs to his wife. The husband provided no evidence that the CDs were his separate property, and he was not a credible witness on this point because he concealed his assets.

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Published on: July 1, 2023

Court Denies Attempt to Re-Open a Rhode Island Divorce Settlement

By Bilodeau Capalbo, LLC

Long after two parties have reached a divorce settlement, one party may discover marital assets that other party failed to disclose during the settlement process. When a person actively conceals a marital asset, their ex-spouse may seek a new settlement equitably dividing the asset between the parties. Those seeking to re-open a final divorce settlement in Rhode Island should know that the state may bar actions filed beyond a certain time period after the settlement. This time limit is known as the statute of limitations.

When Can a Party Re-Open a Rhode Island Divorce Case?

Rhode Island requires parties to bring an action challenging a judgment or contract under seal, including final divorce settlements, within 20 years of the final judgment or contract. Courts have recognized a few exceptions to statutes of limitations, primarily when extending the time limit would be the most fair and equitable action to take. However, a defendant can also ask courts to bar a legal claim under the doctrine of laches. If the defendant succeeds, the court may prohibit a plaintiff from bringing a claim if the (1) plaintiff could have acted earlier and fails to justify the delay, and (2) the defendant has suffered damage from the delay.

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Published on: February 8, 2023

Rhode Island Court Applies Connecticut Law in Divorce Ruling

By Bilodeau Capalbo, LLC

As divorces and custody claims have become more complicated and contentious in recent years, sometimes the laws of multiple states must be addressed in evaluating the parties’ claims. Generally, the law of the state where an action is properly filed will determine how a judge addresses each party’s claims. Sometimes, when a proceeding is ongoing, one state court may be required to apply the laws of another state in evaluating a claim. The Rhode Island Supreme Court recently accepted a lower court’s application of Connecticut law when determining the propriety of an attorneys’ fees award issued during a divorce claim.

The parties in the recently decided case had been married for over 10 years when their relationship became unsustainable, and they separated. Although the parties’ primary residence was in Rhode Island, the wife took the children to Connecticut to live with family upon separation and had them enrolled in school there. In response to the move, the husband requested an emergency custody hearing in Connecticut. During that hearing, the pirates managed to reach a settlement agreement (known as a postnuptial agreement, or PNA), to effectuate their divorce, child custody, and financial matters. Part of the settlement agreement included a provision that requires anyone who unsuccessfully challenged the agreement to pay the other party’s attorney fees.

After the parties’ disputes worsened, the husband brought an action for divorce in Rhode Island court, where he had been living at the time. The husband challenged the enforcement of the postnuptial agreement. The husband’s challenge of the agreement failed, and the Rhode Island court applied the terms of the PNA, ordering him to pay his ex’s reasonable attorneys’ fees for his unsuccessful challenge of the PNA.

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Published on: December 21, 2022

Rhode Island Superior Court Addresses Attorneys’ Conflicts of Interests in Divorce Cases

By Bilodeau Capalbo, LLC

The Rhode Island Rules of Professional Conduct, which govern the practice of law in the state, set standards defining when it is inappropriate for an attorney to represent a client based on conflicts of interests. Generally, an attorney cannot represent a client in an action against a former client of theirs if the issues addressed are substantially similar to those of the previous case. The application of these rules can be difficult in divorce cases, as one party often tries to retain an attorney who may have represented the couple in other matters during the marriage. The Providence division of the Rhode Island Superior Court recently addressed a motion to disqualify one party’s attorneys in a divorce and subsequent cases based on alleged conflicts of interests.

According to the facts discussed in the judicial ruling, the parties to the present case were married in 2006 and began discussing divorce in 2017. The husband retained an attorney to represent him in the divorce proceeding. The parties attempted to negotiate a settlement through the husband’s attorney, but it ultimately fell through and the husband filed for divorce in 2020. The plaintiff attempted to have the husband’s attorney disqualified from the case, as she claimed that he represented her at earlier stages of the negotiation, and there was a conflict of interests in the attorney’s representation of the husband. The plaintiff’s attempts to have the defendant’s attorney disqualified and disciplined for representing the husband in the divorce ultimately failed, and the divorce was finalized in January 2022.

In March 2022, the plaintiff filed a separate case against her ex-husband. This case alleged that the husband assaulted her during the marriage, and she sought financial damages from him as compensation for his alleged conduct. The husband retained his same divorce attorney to represent him in this claim. The plaintiff then filed a motion to disqualify the husband’s attorney, arguing that there was a conflict of interest based on their previous interactions. The Superior court rejected the plaintiff’s arguments, finding that the defendant’s attorney never represented the plaintiff in any issue that was substantially related to her claims against her ex-husband. The plaintiff’s motion was denied. As a result of this ruling, the defendant’s attorney will be permitted to represent him in the assault case.

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Published on: September 30, 2022

When To Consider Mediation to Resolve a Rhode Island Divorce or Custody Dispute

By Bilodeau Capalbo, LLC

Divorces and child custody cases can be some of the most conflict-ridden and emotionally charged legal disputes that are addressed by Rhode Island courts. Many parties to these disputes are so overcome with emotion from the conflicts that led to the legal filings that compromise and agreement can seem out of the question. The fact is, that most Rhode Island divorce and custody cases are at least partially resolved through mediation, and the majority of litigants who resolve family law claims through mediation are pleased that they were able to reach an agreement.

Mediation is an officially sanctioned negotiation process where parties to a dispute can meet with a neutral third party to discuss the issues of their case and attempt to reach a resolution. Mediators may be attorneys, social workers, or even retired family court judges. The job of the mediator is to facilitate communication between the parties, while also offering advice as to how a court may rule on the contested issues. The goal of the mediation is to have the parties agree to an enforceable resolution of all or some of the issues in the case, to avoid a judge having to rule against one party or the other in an adversarial dispute.

Mediation has several benefits. Parties are more likely to accept and follow a family court order that is the result of mediation, because each party agreed to the order, and cannot claim that it was imposed upon them. Mediation is also generally more time efficient and less expensive than a resolution obtained through court proceedings and trial. Additionally, meditation can benefit families by facilitating face-to-face interaction between conflicted couples, which can lead to an improved co-parenting dynamic in the future.

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Published on: August 31, 2022

What Makes a Divorce Court Award Alimony in Rhode Island?

By Bilodeau Capalbo, LLC

Courts that are tasked with a fair and equitable property division as part of a divorce proceeding must consider many factors when dividing a marital estate. In marriages where one of the parties maintain a significantly higher earning ability than the other after the divorce, simply dividing the existing marital assets 50/50 may not be fair or equitable. In these situations, Rhode Island courts are entitled to award alimony to the lesser-earning spouse to help equalize the economic outcomes of the parties in the years following the divorce.

Alimony is not automatically awarded to a divorcing spouse as a matter of course. Prior to filing for divorce, a party who desires alimony must ensure the request is included in their divorce filings, or they may forfeit the ability to receive alimony payments. When deciding to award alimony, Rhode Island courts consider several factors. These factors include the duration of the marriage, the current incomes of the parties, the income earning abilities of the parties, the standard of living enjoyed by the parties during the marriage, as well as each party’s contributions to the marriage.

Courts will be more likely to award significant alimony awards if they are persuaded that the receiving party contributed to a marriage of significant duration, and would be unable to maintain the standard of living they enjoyed during the marriage without an alimony award, If the paying party is able to afford alimony payments while not significantly sacrificing their own standard of living, then an award would be fair and appropriate.

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Published on: August 24, 2022

What Major Issues Can Be Decided as Part of a Rhode Island Divorce?

By Bilodeau Capalbo, LLC

For many people seeking a divorce, the most desired result is simply the end of a marriage, and not much else needs to be determined. Most divorces in Rhode Island are not this simple. As part of the dissolution of a marriage, Rhode Island Law provides courts the authority to enter orders involving the couple’s children, spousal support, as well as for the division of property obtained during the marriage and other issues.

For many couples who share children and are seeking a divorce, the most important issue to be decided by the court is that of the custody and care of the children. Rhode Island courts primarily consider a custody arrangement that is in the “best interests” of the children. Although one parent may be awarded primary physical custody of the children, state law protects the noncustodial parent’s rights to visitation with the child, unless good cause can be shown for restricting such vitiation. Courts can also award joint physical and legal custody of children to both parents, who would then share in the day-to-day care and decision-making for the child. When fighting for custody or visitation rights, a parent needs to be adequately prepared and have an understanding of the factors used by the courts in awarding custody.

In addition to the custody of children, Rhode Island courts may also enter orders awarding child support and spousal support (alimony) to either party. Generally, the party with primary physical custody of the children will receive a support award from the noncustodial parent. Child support is based largely on the parties’ incomes. It is common for divorcing parents to try and conceal or misrepresent some of their income or expenses to manipulate a court into awarding an unfair support or alimony award, so it is important that a detailed and accurate accounting be performed on the couple’s finances before an award is issued.

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Published on: June 26, 2022

How Businesses and Real Property Are Divided in a Rhode Island Divorce

By Bilodeau Capalbo, LLC

When a Rhode Island couple chooses to go through a divorce, one of the largest issues for the court to determine is the division of marital property between the parties. Bank accounts, retirement accounts, and financial instruments can usually be divided relatively easily, as their fair value can be readily determined. Real estate, personal property, and business interests are also generally divided equitably, with accepted values used to offset each party’s share of the estate.

The division of business interests and real estate between parties to a divorce can become more complicated, as the appropriate values can be difficult to reasonably ascertain. Although determining the value of such property can be difficult, the law requires an equitable division of such property. The Rhode Island Supreme Court recently ruled against a former husband who attempted to transfer shared marital real estate to an LLC in his exclusive possession in anticipation of a divorce.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is a woman who has been in the process of divorce from the defendant for several years. During the divorce proceedings, the defendant chose to convey a parcel of real estate that was owned by both parties to an LLC company he created in his name alone. On the plaintiff’s motion, the family court forced the defendant’s company to become a party to the divorce, and also ordered the sale of the property from the couple to the defendant’s LLC to be set aside, so that the value of the property could be equitably divided between the parties.

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