Divorce

Published on: May 4, 2018

Rhode Island Supreme Court Hears Common-Law Marriage Case

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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Published on: April 2, 2018

Rhode Island Supreme Court Holds Cause Not Shown in Divorce Appeal

By Bilodeau Capalbo, LLC

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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Published on: February 22, 2018

U.S. Supreme Court Clarifies Property Rights in Military Divorces

By Bilodeau Capalbo, LLC

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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Published on: February 8, 2018

In Rhode Island, A Mother Cannot Use Genetic Testing To Defeat a Legal Presumption of Paternity

By Bilodeau Capalbo, LLC

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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Published on: February 1, 2018

In Rhode Island, A Separation Agreement Not Merged Into A Divorce Judgment Retains The Characteristics Of A Contract

By Bilodeau Capalbo, LLC

In 1991, the Rhode Island Supreme Court decided two important issues regarding alimony in Rhode Island divorce cases: (1) whether a family court can modify alimony obligations prescribed by a separation agreement, where the agreement has been incorporated by reference but not merged into a final judgment; and (2) whether the alimony under the judgment is modifiable despite the fact that the agreement’s alimony is nonmodifiable.

Plaintiff and Defendant were married in 1959 and decided to divorce in 1985. They agreed on the the distribution of the marital property and on their respective alimony obligations.

The parties obtained a final divorce judgment from the family court in June 1985. In paragraph 6 of the judgment, the family court found the agreement to be fair and equitable. The family court therefore incorporated by reference, but explicitly did not merge, the agreement into the judgment.

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