Articles Posted in Divorce

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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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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.

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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The United States Court of Appeals for the First Circuit recently held that the ex-spouse of a deceased man was entitled to the proceeds of his IRA account. This case is informative for people who are going through divorce and having their soon to be ex-spouse named as a beneficiary on their investment or insurance accounts. If you are considering divorce, you should consult a knowledgeable Rhode Island divorce attorney to make sure that all of your designations are as you want them.

Facts of the Case

This case revolves around an Individual Retirement Account (“IRA”), which is a type of investment account intended to help finance retirement. A man was married and opened an IRA account through his employer. At that time he named his wife as the beneficiary of the account in the event of his death. A couple of years after the account was created he got divorced. However, he never removed his now ex-wife as the beneficiary of the IRA.

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Currently, pets are treated as property in divorces. However, a bill proposed in last year’s legislative session of the Rhode Island state government would change that. Though it has stalled in committee, the bill would allow judges to consider the best interests of the animal when pets are involved in a divorce. If you are considering a divorce and there is a pet involved, you should contact a skilled Rhode Island divorce attorney as soon as possible. An attorney can help you argue that you are entitled to the pet under state law, whether under the current law or this one if it passes next session.

Pets in Divorce

Many of us consider our pets part of our family. Rhode Island (and other state courts) take a different approach, however. The current law considers pets as property, not much different than a car or painting. Occasionally, judges presiding over a divorce will look at who is more bonded to the pet and more capable of taking care of it to decide who should keep the pet. While judges have the discretion to take this approach, in many cases the judge will use a traditional property analysis to determine who gets to keep the pet.

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Earlier this year, the Rhode Island Supreme Court issued a decision that gives further clarity as to what is considered marital property and what is not. In this case a couple was going through a divorce. At the trial court level, the judge divided the property that she found to belong to the couple together, and allowed the wife to keep some of the property as her own since it was determined to be her separate property that she was given as a gift. The Rhode Island Supreme Court agreed with most of the lower court’s findings, but found that the wife’s earnings during the marriage should have been considered joint marital property. Therefore, it should have been divided upon divorce, even though she kept it in a separate bank account in only her name.

As this case illuminates, the determination of what is considered marital property and is thus subject to division and what is separate property is very fact specific. That’s part of why it is so crucial to work with an experienced Rhode Island divorce attorney if you are going through a divorce.

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Divorces are famous for bringing out the worst in people. Now, with rapid growth and innovation in technology, ex-spouses sometimes use these new products in ways that can hurt them in family court. In an attempt to gather evidence, people going through a divorce or considering one are using apps and programs to track each other and get recordings and other evidence to potentially use in court. However, many of these tactics are illegal, and even the ones that are not may hurt your case in family court.  An experienced Rhode Island divorce attorney can help you with your case and make sure that you have safeguards in place so that your former spouse cannot gather any information without your knowledge. They can also help you stay within the law and refrain from doing anything that will damage your position.

What is Legal?

Divorce lawyers in Rhode Island have noticed that many of their clients are putting tracking devices in each other’s cars or using apps like the “find my iphone” app to keep tabs on each other. The ubiquity and relative inexpensiveness of these devices has made it much more common for divorcing partners to find out information about each other. Parents are also putting devices like cameras or location tracking on their kids when the children are with the other parent. While the separated individuals may think these tactics will give them evidence that will help them in court, that’s often not the case, and it’s easy to run afoul of the law.

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After twenty three years together, an East Providence couple decided to separate. Now that they have broken up, a court is trying to determine if they were in a common-law marriage. We tend to think of marriage in black and white terms: either you’re married or you’re not. But it may not be that simple in Rhode Island.

Common-Law Marriage

In most states this would be pretty straightforward, and the court would look to whether there was a marriage license. However, Rhode Island is one of only a few states that recognizes common law marriage. In order to determine whether a common law marriage exists, many people think there is a specific number of years together that must be met. That’s not true. Rather, the court looks all the relevant factors to determine whether there was a “present mutual intent to be married.” In other words, do both parties consider themselves married to one another? Do they live their lives like they are married and hold themselves out to others as a married couple? A Rhode Island family law attorney will be able to explain all the ins and outs of this unique area of family law.

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In a recent Rhode Island family law case, the defendant appealed from a family court decision following a divorce proceeding. The trial judge found the marital estate to be essentially nonexistent, and further found that a majority of the disputed assets belonged squarely to the plaintiff. Defendant disagreed, arguing that the trial judge erred in failing to identify various assets as marital property subject to equitable distribution at divorce.

The case came before the Rhode Island Supreme Court, following an order requiring the parties to  show cause why the issues should not be decided summarily. The state high court concluded that cause was not shown and that the case could be decided without further argument. The court affirmed in part and vacated in part and remanded for further proceedings.the

Plaintiff and defendant met in the summer of 2012. A few months later, they decided to get married. Before the wedding, however, the defendant told the plaintiff that they could not be legally married because his divorce from his third wife was not yet finalized California. This fact upset the plaintiff, a Chinese citizen.

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This summer, the United States Supreme Court held that a state court may not force a veteran to reimburse a divorced spouse for the forfeiture in the divorce spouse’s share of the veteran’s retirement pay where the forfeiture is caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This is a relevant ruling for all married or divorced members of the military in all states and thus also relates to Rhode Island family law.

In 1982, Congress passed the Uniformed Services Former Spouses Protection Act (the Act), which allows state courts to handle military retirement pension as marital property, a share of which can be granted to the other spouse in a divorce order. The law overturned McCarty v. McCarty, which held that retirement pay was entitled to the retired service member and couldn’t be made part of a divorce settlement.

In the recent case, the divorce order of Arizona petitioner and respondent gave respondent fifty percent of petitioner’s future Air Force retirement earnings. Respondent began to receive her portion of that fifty percent when petitioner retired the following year. About thirteen years after, the Department of Veterans Affairs found that petitioner was disabled. Service members who qualify for both a pension and partial disability benefits can’t receive both, and must therefore waive part of their pension. To receive disability pay, federal law required petitioner to give up an equal amount of retirement pay.

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In 1990, the Rhode Island Supreme Court considered for the first time the rights of parents whose legal presumption of paternity is later challenged during a divorce proceeding. The court held that the mother was equitably estopped from using genetic blood testing to disestablish a child’s paternity in connection with a divorce proceeding.

Petitioner and respondent began dating in the fall of 1984. Petitioner gave birth to their first child in 1986. She testified that she told respondent immediately after giving birth that the child was the child of another man. Respondent contradicted this testimony.

The parties married in December 1986. Respondent testified that he married respondent because he thought it was the right thing to do. The parties remained at his parents’ home until respondent moved out in 1987. After leaving respondent, petitioner gave birth to to their second child.

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