Articles Posted in Family Law

Published on: September 29, 2023

Complications of Dividing Pensions and Retirement Accounts in the Event of Remarriage after a Divorce

Rhode Island matrimonial law generally entitles a divorcing spouse to a portion of the other spouse’s retirement or pension assets that accrued during the marriage. This general rule appears to be straightforward, however, it can be distorted in practice. An especially difficult situation can arise when a spouse remarries after a divorce, and both their ex-spouse and current spouse may have a claim for the benefits. A division of the Rhode Island Superior Court recently decided a case in which a former spouse had sued the widow of a deceased man, seeking retirement benefits to which she was awarded in the prior divorce.

The plaintiff in the recently decided case divorced her husband in 1995. As part of a property settlement, the parties agreed that the plaintiff would be entitled to half of the man’s retirement account in lieu of an alimony award. The man remarried years later and continued to accrue retirement benefits from his employer. The man died in 2020, and both his former spouse and his widow sought the surviving spouse benefits from the man’s employer. After the employer refused to award the benefits to the ex, she sued both the employer and the widow, seeking to enforce the divorce agreement and receive the retirement benefits.

After discussing the relevant laws, the Court ruled that the widow was entitled to all of the retirement benefits. Notably, the court found that because the 1995 divorce settlement agreement was “incorporated but not merged” into the final divorce judgment, the settlement was not enforceable by the family court and instead simply as a contract between the parties. Because the laws dictating the dispersal of pension benefits superseded contractual obligations in this case, the ex-spouse did not have a valid claim over the assets.

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Published on: July 7, 2023

Rhode Island Supreme Court Affirms Wife’s Asset Award and Husband’s Sanctions for Failing to Disclose Assets

By Bilodeau Capalbo, LLC

When parties undergo divorce proceedings, they must fully disclose their assets. The trial court will then determine which assets are separate property and which are marital property subject to equitable division between the parties. However, issues arise when a party is dishonest about the existence or value of their assets. Some people may attempt to conceal their assets to prevent the court from dividing them up. However, if a party fails to disclose a marital asset, the court may impose monetary sanctions against them. A recent Rhode Island Supreme Court case demonstrates the consequences of hiding assets from an ex-spouse and from the court.

According to the opinion’s account of the divorce proceedings below, the husband failed to respond to the wife’s requests to identify marital property and concealed several assets including his pension, workers’ compensation, Certificates of Deposit (CDs), undisclosed accounts, and ownership of the marital home. After several warnings, the trial judge sanctioned the defendant $1,000 per day that the husband failed to provide the requested documents showing proof of his assets, totaling $50,000. The husband argued that the assets were his separate property, though the wife paid what she believed to be her share of the mortgage every month. The trial judge awarded the wife 50% of the value of the husband’s pension, CDs, and the marital home’s appreciation in value. The trial judge also found that the appreciation of the wife’s second home was her separate property, as the husband’s remodeling projects did not contribute to the increased value.

On appeal, the husband argued that the trial judge erred in assigning marital assets to the wife, classifying the wife’s home as separate property, and imposing sanctions against him. He also claimed that the judge abused her discretion and disfavored him in the proceedings below. The high court affirmed the trial judge’s ruling. First, it reasoned that the husband’s decision to delay retirement should not deprive his wife of the pension. Second, the court found that the trial judge acted within her discretion in awarding 50% of the husband’s CDs to his wife. The husband provided no evidence that the CDs were his separate property, and he was not a credible witness on this point because he concealed his assets.

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Published on: July 1, 2023

Court Denies Attempt to Re-Open a Rhode Island Divorce Settlement

By Bilodeau Capalbo, LLC

Long after two parties have reached a divorce settlement, one party may discover marital assets that other party failed to disclose during the settlement process. When a person actively conceals a marital asset, their ex-spouse may seek a new settlement equitably dividing the asset between the parties. Those seeking to re-open a final divorce settlement in Rhode Island should know that the state may bar actions filed beyond a certain time period after the settlement. This time limit is known as the statute of limitations.

When Can a Party Re-Open a Rhode Island Divorce Case?

Rhode Island requires parties to bring an action challenging a judgment or contract under seal, including final divorce settlements, within 20 years of the final judgment or contract. Courts have recognized a few exceptions to statutes of limitations, primarily when extending the time limit would be the most fair and equitable action to take. However, a defendant can also ask courts to bar a legal claim under the doctrine of laches. If the defendant succeeds, the court may prohibit a plaintiff from bringing a claim if the (1) plaintiff could have acted earlier and fails to justify the delay, and (2) the defendant has suffered damage from the delay.

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Published on: June 20, 2023

Father’s Parental Rights Terminated After Failed Reunification Program

By Bilodeau Capalbo, LLC

The Rhode Island Division of Children, Youth, and Families (DCYF) is tasked with the unenviable job of addressing abusive or neglectful parents whose conduct may put their children at serious risk. The DCYF often is involved in cases where one or both parents are suffering from mental health issues and addictions or engaging in chronic criminal activity. Before seeking to take someone’s children away and terminate their parental rights, the DCYF usually prepares a case plan to give the parent(s) the ability to improve their lifestyle, learn parenting skills, and ultimately regain permanent custody of their children. Wide discretion is given to individual DCYF employees to determine the requirements of a successful case plan. A father recently appealed the termination of his parental rights after he allegedly failed to properly follow through on his case plan.

The appellant in the recently decided appeal is the father of a young child born in 2018. Based upon existing neglect and termination proceedings concerning the mother’s other children, the DCYF immediately opened a neglect case in regard to the child once they learned of the birth. As part of the neglect case, a case plan was developed to allow the father to demonstrate his fitness as a parent. The father and mother were no longer a couple when the neglect case was initiated, so the DCYF assigned individual case plans to each of the parents. The father, who allegedly admitted to selling drugs in the past to a DCYF-referred therapist, was instructed to abstain from drugs and alcohol and enter into substance abuse treatment with random drug screenings as part of the case plan.

According to the facts discussed in the appellate opinion, the father attempted to comply with many portions of the case plan, attending parenting classes and supervised visits with the child. The father did not, however, submit proof that he attended a substance abuse evaluation or provide drug screening results as expected. While the case plan was in effect, the father was arrested for possession of heroin and incarcerated. In response to his arrest and incarceration, the DCYF chose to pursue termination proceedings against the father. A trial was held on the matter, where the family court determined that the father was unfit to parent the child, that he was unlikely to become a fit parent in a reasonable amount of time, and that the child’s current placement in a foster home was healthy and likely to result in an adoption. Based on those findings, the family court entered an order terminating the father’s parental rights.

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Published on: May 20, 2023

Rhode Island Supreme Court Affirms Termination of Father’s Parental Rights

By Bilodeau Capalbo, LLC

The State of Rhode Island has enacted administrative and legal methods for intervening in a parent’s parental and custodial rights if a child is being neglected or abused. Generally, the state Department of Children, Youth, and Families (DCYF) will be notified about the suspicion of child abuse or neglect, and then begin an investigation. If the DCYF investigators confirm that it appears abuse or neglect is occurring, the agency can petition a Family Court to intervene and place the child in a safe custodial environment while the DCYF and the parents attempt to resolve the allegedly abusive or neglectful environment. If the parents fail to meet the expectations of the DCYF caseworkers, the agency may seek to permanently terminate the parent’s parental rights to place the children in the permanent custody of another person who the state sees as fitter to care for the child. The Rhode Island Supreme Court recently affirmed a Family Court’s decision to permanently terminate the parental rights of a man who was found unfit to parent his child.

The appellant in the recently decided appeal is the natural father of a nine-year-old boy who has been the subject of a DCYF investigation that was opened in 2018 as a result of the appellant reporting the child’s mother for neglect. As part of their investigation, the DCYF convinced the family court to temporarily place the child in the custody of his maternal grandmother. In late 2018, the DCYF created a case plan for the father to participate in to demonstrate his ability to properly care for the child as his primary custodian. The DCYF requested that the father attend substance abuse and mental health treatment, and participate in supervised visits through a parenting program. Although the father did attend some treatment appointments and scheduled visits, he ultimately abandoned the case plan.

In January 2020, the DCYF filed a petition to terminate the father’s parental rights and have the child permanently placed in the care of his grandmother. After a six day trial, the Family Court granted the DCYF petition, finding that the father was not fit to care for his son and that it was in the child’s best interests to be permanently placed in the custody of his maternal grandmother. The father appealed the Family court ruling, arguing that he was justified in abandoning the DCYF case plan, and that he was a fit father. The Supreme Court found that the findings of the lower court were valid, ruling that the father’s objections, while valid, were not sufficient to overcome the judgment of the family court. As a result of the appellate opinion, the father’s parental rights are permanently terminated.

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Published on: May 10, 2022

Grandfather’s Attempt to Adopt Neglected Grandson Thwarted by Rhode Island Department of Children, Youth, and Families.

By Bilodeau Capalbo, LLC

The work of administrative child protection agencies (colloquially called “Child Protective Services” but known as the Rhode Island Department of Children, Youth, and Families in this state) can be some of the most difficult and emotionally taxing legal work imaginable. The DCYF is tasked with the difficult job of determining when a natural parent should lose their parental rights. The DCFY has additional responsibilities besides advocating for the termination of a parent’s rights. The DCYF takes a primary role in ensuring the safety of at-risk children while the process is ongoing, as well as finding a permanent placement for the adoption of the children after parental rights have been terminated.

The DCYF recently succeeded in denying a natural grandfather the opportunity for placement and adoption of his grandson, after the natural father was found to be an unsuitable caretaker. Based on criminal and civil investigations, the DCYF initiated proceedings by taking the minor child from his natural father’s custody and placing him in a temporary foster home. The child’s grandfather attempted to have the child placed with him, both temporarily, and on a permanent basis. Proceeding without an attorney, the grandfather attempted to apply with the DCYF to have the child placed with him, although he did not follow the exact procedures required to make the request, and it was denied.

Later, the natural father’s rights were definitively and permanently terminated, and the child was adopted to an unrelated family, against the grandfather’s objections. The grandfather appealed to a higher court to challenge the denial of his attempts to adopt the child, seeking a declaratory judgment that would affirm that he had been wronged by the DCYF. On appeal, the court found that the grandfather lost all basis to challenge any of the courts’ determination because the father lost his parental rights, and at that point, the grandfather had no rights to the child. This ruling was made in spite of the fact that the grandfather started requesting placement and adoption long before the father’s rights were terminated.

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Published on: April 16, 2022

Mother’s Request to Move from Rhode Island with Child Denied by State Courts

By Bilodeau Capalbo, LLC

When parents split up, custody and care of the children becomes an extremely important issue to resolve. Although some couples agree on custody, visitation, and support conditions for their co-parenting arrangement, court orders memorializing an enforceable agreement are usually necessary to ensure each party is held accountable to uphold their part of an agreement. Stipulated custody agreements that are reduced to an enforceable court order may later be modified by a separate petition or motion, which may bring parties back into court after a custody case appears to be resolved. The Rhode Island Supreme Court recently affirmed a state family court ruling that denied a mother’s request to relocate to Florida with the parties’ child.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is the father of a child that he shares with the defendant. The parties were never married, but after they broke up, the plaintiff sought court orders to allow him visitation and partial custody of his child. After a trial, the plaintiff was granted partial custody and visitation with the child. After the entry of the custody orders, the defendant has since filed a motion with the court asking her to be allowed to relocate to Florida with the child. Rhode Island law requires that relocation by one parent against the wishes of the other parent can only be permitted if a court determines that the relocation would be in the best interest of the child.

The defendant argued that relocating was in the best interest of the child because she was struggling to raise her children as a single mother (she had another child from a previous relationship), and her mother would be available to help in Florida. Additionally, she had been offered a job in Florida. The family court evaluated the parties’ arguments and denied the mother’s motion. Specifically, the family court judge found that the mother failed to demonstrate how the relocation would be in the child’s best interest.

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Published on: February 21, 2022

Domestic Partnerships and Same-Sex Marriage in Rhode Island

By Bilodeau Capalbo, LLC

Many states including Rhode Island have allowed for the development and civil recognition of various forms of relationships between residents for purposes of asset and debt division, medical care decision making and information access, insurance coverage, as well as for tax and other purposes. In addition to standard marriages, the state of Rhode Island also recognizes domestic partnerships, as well as some forms of what is known as “common law marriage”

Couples and families who are living their lives together have many reasons for wanting their relationship to be recognized by the state. A married couple enjoys automatic rights that can be more difficult for unmarried partners to enjoy. Married couples are able to purchase health insurance for their spouses through their employers. Additionally, spouses are entitled to certain disability, pension, and other benefits earned by their spouse. Until the legalization of same-sex marriage nationally in 2015, same-sex couples in Rhode Island were unable to get legally married and were forced to rely on a domestic partnership application. Although marriage is now permitted for same-sex couples, domestic partnerships remain an option for same-sex or intersex couples who desire the benefits of a legally recognized relationship without getting married.

In 2001 the State of Rhode Island changed the law to make domestic partnership benefits available to state employees, by treating domestic partners as a dependent under state law. Under this law, domestic partners are able to share employer-run health insurance benefits, as well as retirement and other benefits. To qualify for such a domestic partnership, the employee partner must submit an affidavit to their employer stating that they are unmarried adult partners who have lived together for at least a year and have interdependent finances, as demonstrated by submitting evidence of shared finances. Although private and municipal employers are not required to recognize domestic partnerships in the same manner as the state, many choose to do so.

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Published on: January 25, 2022

Rhode Island is One of the Toughest States for Parents Seeking Shared Custody

By Bilodeau Capalbo, LLC

Many child and family psychologists have determined over the years that it is best for a child to have a meaningful and healthy relationship with both their parents. In the event of a divorce or break-up, it can be difficult for children to have such meaningful and healthy relationships with both their parents, especially when the legal system for determining custody is designed in such an adversarial manner, putting one parent against the other with the children often stuck in the middle. A recently published article discusses one man’s experience in fighting for 50-50 custody of his daughters, and his lobbying efforts to change state laws that discourage true shared custody.

According to the discussion in the local report, Rhode Island is one of the two worst states for obtaining a true shared child custody order. Although many experts agree that the best interests of children are served by effective joint custody arrangements, the family court system in Rhode Island is designed to choose one parent over the other as the “primary custodian,” while the other parent falls into more of a secondary role. The courts’ tendencies to favor primary/secondary custody arrangements may be the result of outdated gender roles that have assumed women would act as “stay-at-home moms” while their ex-partner would work and support the child by making child support payments. In today’s society, this belief is outdated. Many fathers want to take an equal role in parenting responsibilities, while many mothers work full time. As a result of these changes, the state laws should be updated to favor shared custody arrangements.

Although the state laws to determine custody in Rhode Island tend to support a primary/secondary custody arrangement, shared or 50/50 custody is available and commonly ordered by the courts. Family courts in Rhode Island see the “best interests of the child(ren)” as a primary factor in determining a final custody order. A skilled Rhode Island family law attorney should be able to make a case to the court that a shared or 50/50 custody order would be in the best interests of the children. Although Rhode Island is not the easiest place to seek out joint custody in the event of a divorce or custody dispute, parents with competent legal representation can ensure that the final order is consistent with the best interests of their children.

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Published on: September 9, 2021

State Supreme Court Terminates Rhode Island Mother’s Parental Rights Citing Child’s “Best Interests”

By Bilodeau Capalbo, LLC

Recently, the Rhode Island Supreme Court issued a decision affirming the decree of a family court terminating a mother’s parental rights to her four children. The Department of Children, Youth, and Families (DCFY) became involved with the family after the mother was hospitalized for mental health issues. DCFY filed a neglect petition to remove four of the woman’s children, and three were placed with their maternal grandmother, and the youngest was placed with a foster family. DCFY contends that the mother failed to fully engage in counseling and other steps to address her mental health. Further, the mother’s engagement with the children declined over several months. DCFY noted that their initial goal was reunification with the mother; however, the goal changed to termination of parental rights and adoption as time progressed.

According to the relevant part of the statute, Rhode Island General Laws 1956 § 15-7-7, explains the court shall terminate any and all legal rights of a parent to a child if the court finds:

With clear and convincing evidence that the parent is unfit by conduct or conditions detrimental to the child

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