Divorce

Published on: May 27, 2020

The Possibility of Obtaining a Rhode Island Divorce Without the Expense of a Trial

Couples considering divorce in Rhode Island have most likely heard horror stories from other divorced couples who complain about complicated and expensive divorce lawsuits that went on for years, costing hundreds of thousands of dollars, or more. As a divorce case becomes more contested and the parties dig in their heels on specific issues, that the strain on a couple’s finances, relationships with their children, and personal psychological well being can exacerbate an already difficult situation. If both parties understand these risks going into a separation or divorce, the worst of the problems can be avoided by agreeing to seek a Rhode Island collaborative divorce.

Collaborative divorce and mediation offer an alternative to the “ugly divorce” that often leaves parties bitter and full of regret. A collaborative divorce seeks to avoid the pitfalls of litigation while still protecting each party’s rights and resulting in an agreement that is fair and more likely to be followed by the parties, while also being legally binding and enforceable. Parties who agree to a collaborative divorce or a mediated settlement agreement can both have attorneys at their side, who will advise and assist them in discussing disputed issues to reach a full agreement without the need for a trial.

Contested divorces are often approached in a way that exacerbates the disagreements between the parties from the start of the process, and as issues become more complicated, attorney’s fees and time delays only increase. It’s possible to resolve all of the issues that may come up in a divorce in a mediated session that occurs outside of the courtroom. Couples who wish to obtain a divorce more simply and quickly can resolve financial asset division, child custody, parent time and visitation, the assumption of debts, child support and spousal support, as well as other issues with the help of their attorneys and one or more neutral mediators who are specially trained to resolve disputes and achieve fair and realistic settlements.

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Published on: April 13, 2020

Court Affirms Lower Court in Rhode Island Divorce Appeal

By Bilodeau Capalbo, LLC

Factual determinations that are made by family courts in Rhode Island divorce proceedings may be the subject of much dispute and differing interpretations, but appellate courts usually grant lower courts great deference by accepting a family court’s factual findings unless there is overwhelming evidence of a mistake. The Rhode Island Supreme Court recently decided an appeal from a judgment by the Newport County Family Court in a divorce case determining the division of marital assets and child support.

The appellant in the recently decided case was the husband in a divorce that was finalized in September of 2016. The disputed issues in the divorce included the custody of the couples’ child, the division of certain retirement and bank accounts, child support, the propriety of withdrawals made by each of the parties during the divorce proceeding, as well as the application of the parties’ 2007 premarital agreement to these asset division questions.

The most significant claim in the appeal was the husband’s claim to an equal share of $373,400 in gains to the wife’s 401(k) account that accrued during the marriage. The parties’ premarital agreement stated that the husband was entitled to half of the total contributions to the account during the marital period, which the trial court found to be approximately $79,500. The husband claimed that he was entitled to the actual contributions, as well as the interest earned on the account during the marital period, which would total $156,700. On appeal, the Rhode Island Supreme Court accepted the family court’s interpretation of the premarital agreement language and didn’t disturb the ruling.

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Published on: November 5, 2019

Equitable Distribution in Rhode Island Divorce Cases

By Bilodeau Capalbo, LLC

The term equitable distribution refers to how a court divides up a couple’s assets in a Rhode Island divorce. Rather than split a couple’s assets down the middle 50/50, courts consider a variety of factors when determining how to divide assets and liabilities. The concept behind the doctrine of equitable distribution is that marriage is viewed as an “economic partnership” between two people. Thus, courts attempt to award marital property according to the contributions each party made to the “partnership” during the marriage. Most types of property can be subject to equitable distribution, including real estate, cars, artwork, furniture, bank accounts, business interests, and even retirement accounts.

The equitable distribution process requires Rhode Island family law judges to engage in a multi-step analysis. First, the judge must determine what constitutes marital property. Courts consider marital property any property that was acquired during the marriage, with a few exceptions. While property that was owned by one spouse before the marriage is not typically considered marital property, any increase in value that occurred during the marriage may be subject to equitable distribution. Inherited property is not considered marital property, nor is any income received from such property. However, gifts between spouses are marital property.

Once a judge determines which of the couple’s assets are marital property, she will then consult the list of factors contained in Rhode Island General Laws section 15-5-16.1, including:

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Published on: July 4, 2019

Rhode Island Supreme Court Finds Corporate Distributions Must Be Included as Income for Child Support Calculation

By Bilodeau Capalbo, LLC

The Rhode Island Supreme Court recently issued a decision in a family law case discussing the calculation of child support. According to the court’s opinion, the couple in the case married in 1990 and began divorce proceedings in 2014. The mother subsequently petitioned the court for child support. After a hearing, the family court ordered the father to pay $1,796 per month in child support for his minor child. The mother appealed, claiming that the family court failed to properly calculate and order child support while the divorce proceeding was pending and on the day the marital settlement agreement had been entered.

The appellate court found that the lower court did not err in declining to award child support while the divorce proceeding was pending because the mother was using funds from a joint marital account to support herself at the time, which had been divided equally between the parties, and amounted to about $505,000. In addition, shortly thereafter, the husband voluntarily agreed to pay, and the mother accepted, $2,444 per month in interim child support while the divorce proceeding was pending. The mother also argued that the court incorrectly calculated the child support obligation, in part because the court excluded income that the father received related to an S-corporation he owned.

Section 15-5-16.2 states that a child support obligation shall be calculated based upon the family court’s formula and guidelines. If, after doing so, the court finds that it would be inequitable to the child or to either parent, the court shall make findings of fact and shall order a child support obligation “reasonable or necessary for the child’s support after considering all relevant factors,” including but not limited to, certain enumerated factors. Those factors include the standard of living established for the child before the divorce, the child’s emotional and educational needs, the financial resources of the child, and of the parents. Gross income, as defined by the child support guidelines, includes income from sources such as salaries, wages, bonuses, gifts, prizes, social security benefits, and “all other forms of earned/unearned income,” excluding means-tested public assistance benefits. It also includes business income defined as gross receipts minus ordinary and necessary expenses.

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Published on: May 7, 2019

Rhode Island Court Hears Custody Dispute over Pets

By Bilodeau Capalbo, LLC

Last month, the state’s high court issued an opinion in a Rhode Island family law case discussing a marital settlement agreement and whether Husband was entitled to visitation with two dogs. While at first glance the case may seem narrowly focused, it provides valuable insight regarding Rhode Island marital settlement agreements and how courts interpret and enforce these documents.

According to the court’s opinion, Husband and Wife filed for divorce after 26 years of marriage. At the time the court entered an order dissolving the marriage, it incorporated a marriage settlement agreement (the “agreement”) that the parties had agreed upon. Among other things, the marriage settlement agreement provided that Wife would retain sole ownership of the former couple’s two dogs. The agreement also stated that Husband was permitted to take the dogs for visits from Tuesday morning through Thursday morning.

For about six months, Husband was able to visit the dogs under the terms of the agreement. However, Wife eventually stopped allowing Husband to visit the dogs. Husband requested the court step in to enforce the terms of the marriage settlement agreement, asking the court to order Wife to allow his visits and provide for make-up visits. Wife responded with her own request to the court, claiming that she should not need to comply with the agreement because Husband was not properly caring for the dogs and had attempted to keep them away from her, in violation of the agreement.

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Published on: March 4, 2019

Can a Rhode Island Marriage Be Annulled or Declared Void?

By Bilodeau Capalbo, LLC

Although Rhode Island does not allow for annulments, practically speaking, a Rhode Island marriage can be declared “void” by the court. This carries the same effect as an annulment, meaning that it is as though there was no marriage in the first place. Thus, while Rhode Island technically does not provide for annulments, that is merely a function of the language lawmakers chose.

Divorce Versus Annulment

Divorce and annulment are very different things. In a Rhode Island divorce, the parties are ending what is agreed to have been a valid marriage. However, an annulment is a legal proceeding in which a marriage is declared void. After a successful annulment, legally speaking, it is as though the marriage never took place.

Under What Circumstances Can a Marriage Be Declared Void

There are only a few limited circumstances in which a Rhode Island marriage can be declared void. Under Rhode Island General Laws § 15-1-5, both bigamous marriages and those involving a person who is mentally incompetent at the time of the marriage are absolutely void. A bigamous marriage is one in which one of the parties involved is still currently married to another person or “a relationship that provides substantially the same rights, benefits and responsibilities as a marriage whether entered into in this state or another state or jurisdiction.”

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Published on: February 8, 2019

When Is a Rhode Island Prenuptial Agreement Necessary?

By Bilodeau Capalbo, LLC

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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Published on: January 29, 2019

How Do Courts Divide Assets in a Rhode Island Divorce?

By Bilodeau Capalbo, LLC

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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Published on: January 8, 2019

How Do Rhode Island Courts Calculate Child Support Payments?

By Bilodeau Capalbo, LLC

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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Published on: December 12, 2018

Common Law Marriage in Rhode Island

By Bilodeau Capalbo, LLC

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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