Articles Posted in Divorce

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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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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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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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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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Jurisdictions across the United States have different laws and traditions concerning how property is divided during a divorce. Generally, judges are not required to follow any strict formula for property division; however, the guidelines and laws offer factors for courts to consider in awarding property to each spouse. Rhode Island courts divide marital property using the doctrine equitable distribution, meaning a court divides marital property in a fair and equitable manner between the spouses, taking several factors into account to determine the equitable distribution for each spouse.

The division of marital property in Rhode Island is governed by state law, codified under R.I. GEN. LAWS § 15-5-16.1, which lists several factors for judges to consider in property division. These factors include the length of the marriage, the conduct of the parties during the marriage, contributions from each party to the marital estate, the contributions of each party as a homemaker, the occupation and employability of each party, and the best interests of any children shared by the parties, among others factors.

In evaluating the conduct of the parties during the marriage, courts are allowed to consider any infidelity or abuse in making an equitable distribution of the marital assets. Additionally, financial misconduct by either party (wasteful dissipation of assets or hiding or encumbering assets in anticipation of divorce without equitable consideration) can be grounds for awarding more property to the other spouse.

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A Rhode Island divorce can be an extremely difficult and complicated legal dispute, often because the stakes of a child custody dispute are always very high. Although there is limited statutory direction to guide the courts when awarding custody of a child to one parent or the other, the courts have developed legal principles that are used consistently in deciding how to award custody. A case recently decided by the Rhode Island Supreme Court explains the primary factors courts should use in making a custody determination and deciding whether to permit a parent to move out of state with their children against the other parent’s wishes.

In the recently decided case, the parties were a married couple with children who sought a divorce in Rhode Island family court. The mother, who was awarded primary physical custody of the children, sought to relocate to Ohio to be near her family after the divorce. The father, who was awarded joint legal custody of the children, as well as visitation privileges, challenged the mother’s relocation because he wanted to be closer to the children. The family court denied the mother’s request, requiring her to remain in Rhode Island with the children. The mother appealed the ruling to the Rhode Island Supreme Court.

On appeal, the high court discussed the factors for awarding child custody used in Rhode Island. According to the opinion, the courts focus broadly on factors to make a decision concerning relocation that is in the best interests of the children. These factors include considering the nature and quality of the relationship between each parent and the children, the reasonable likelihood that the relocation would enhance the general quality of life, including economic and educational opportunities, for both the parent and the children. Additional factors to be considered include the feasibility of maintaining a relationship and suitable visitation between the non-relocating parent and the children and the existence of extended family and other support systems available to the child in both locations.

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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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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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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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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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