Divorce

Published on: July 4, 2019

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

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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Published on: November 29, 2018

The Division of Property Following a Rhode Island Divorce

By Bilodeau Capalbo, LLC

One of the most contested issues in any Rhode Island divorce is the division of property. While the concept of dividing up a couple’s assets may sound straightforward, in practice the process can be quite complicated.

Rhode Island is an equitable distribution state. Thus, courts employ a three-step approach when dividing marital assets. First, the court will determine which of the couple’s assets should be considered marital property subject to equitable distribution and which assets are an individual spouse’s separate property. As a general rule, marital property consists of the assets that were acquired during the marriage. However, certain exceptions exist. For example, inheritance and gifts from third parties are not considered marital property, even if they are assigned or received during the marriage.

Once a court determines which assets are marital property, the court will then consider a list of factors to determine how to divide those assets. These factors are set out in Rhode Island General Laws § 15-5-16.1, and include:

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Published on: September 28, 2018

Rhode Island Supreme Court Case Looks at Hidden Assets During Divorce

By Bilodeau Capalbo, LLC

In 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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Published on: August 29, 2018

Rhode Island Supreme Court Upholds Post-Employment Compensation Split in Divorce

By Bilodeau Capalbo, LLC

When 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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