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While many issues must be resolved when spouses separate, child custody matters are frequently the most hotly contested issues in a Rhode Island divorce. The term “child custody” refers to two separate types of custody, physical and legal. Physical custody refers to the parent with whom the child will live while legal custody refers to the parents’ ability to make important life decisions for their children.

Each state has its own laws regulating how judges resolve child custody issues. In Rhode Island, courts use the “best interest” standard, which focuses primarily on what is in the best interest of the child. Of course, this may not necessarily be in line with the expressed interests of the child, especially if they are young. Interestingly, Rhode Island lawmakers never defined what factors courts should consider when deciding what is in the best interest of a child. Thus, in the 1990 case, Pettinato v. Pettinato, the Rhode Island Supreme Court listed several factors that should be considered. Since then, these factors have been termed the “Pettinato factors.” Therefore, when deciding what is in the best interest of a child, courts must consider each of the following:

  • The wishes of the child’s parents;
  • The preference of the child, if the child is “of sufficient intelligence, understanding, and experience to express a preference”;
  • The child’s relationship with her parents, siblings, or anyone else who may impact the best interest of the child;
  • The child’s adjustment to her home, school, and community;
  • The physical and mental health of the child as well as the parents;
  • The stability of the child’s home environment;
  • The moral fitness of each of the child’s parents; and
  • The willingness of each parent to foster a meaningful relationship with the other parent.

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Being involved in a domestic violence situation is a horrifying experience affecting tens of thousands of people across Rhode Island each year. Victims of Rhode Island domestic abuse may be able to prevent their harasser or abuser from contacting them by obtaining a Rhode Island protective order. A protective order prohibits the person named in the order from engaging in any form of contact with the person who obtains the order, including contact through social media.

Contrary to what many believe, being the victim of domestic violence does not necessarily mean someone has been physically assaulted. Under Rhode Island General Laws section 15-15-1, domestic abuse is defined as certain acts between “present or former family members, parents, stepparents, or persons who are or have been in a substantive dating” relationship. Specifically, domestic violence consists of any of the following:

  • Attempting to cause or causing physical harm;
  • Placing another in fear of imminent serious physical harm;
  • Causing another to engage involuntarily in sexual relations by force, threat of force, or duress; or
  • Stalking or cyberstalking.

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The term easement frequently comes up in Rhode Island property law cases. In the most general terms, an easement is a legal term referring to a non-owner’s right to use another’s property, usually for a specific purpose. For example, a property owner who owns land that is near the beach may have an easement over another property owner’s land to gain access to a beach. This is called a beach access easement.

There are many facets of Rhode Island easement law; however, it is beneficial to first understand the two types of easements: easements appurtenant and easements in gross. An easement appurtenant is tied to a particular parcel of land and remains with the land through changes in ownership. An easement in gross, on the other hand, is assigned to a particular person, business, or entity, and cannot be sold, transferred, or given away.

An easement can come into existence in several ways. Some easements are created based on an agreement between parties, whereas others are issued by courts as a result of a Rhode Island property dispute. A few common types of Rhode Island easement definitions will be discussed below.

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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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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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In Rhode Island, all motorists are required by law to maintain a certain amount of auto insurance on their vehicles. Under Rhode Island General Laws section 31-31-7, motorists must obtain liability insurance of $25,000 per person and $50,000 per accident. In addition, motorists must obtain $25,000 worth of insurance per accident for property damage. Liability and property damage insurance protects the policyholder in the event that they cause a Rhode Island car accident by covering the costs incurred by victims of the accident. However, it is estimated that 17% of Rhode Island drivers do not maintain sufficient insurance on their vehicles.

If someone is involved in an accident that was caused by another motorist’s negligence, the at-fault motorist will be responsible for any injuries suffered by the accident victims. However, if the at-fault motorist does not have insurance, the accident victim will only be able to pursue a claim against the driver, who may not have the assets to compensate the injury victim adequately. This is where uninsured/underinsured motorist (UIM) protection comes into play.

Underinsured/Uninsured Motorist Protection in Rhode Island

Under a UIM policy, a policyholder is protected from accidents caused by an at-fault motorist who either has no insurance or does not have sufficient insurance to fully compensate the policyholder for the damages caused by the accident.

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For the most part, the government stays out of how parents raise their children. In fact, the United States Supreme Court has held that “parents have a fundamental liberty interest in the care, custody and management” of their children, and that a parent’s rights will not “evaporate” merely because they are not model parents or because they have lost temporary custody of their children. However, at some point, when the state government believes that children are being neglected, abused, or otherwise in danger, the state will intervene.

In order for the state to terminate parental rights, they must establish one of the facts outlined in Rhode Island Statutes section 15-7-7. The list of reasons for which the state can terminate a parent’s rights is not limited by those laid out in section 15-7-7. Instead, the statute provides examples of situations where termination may be appropriate. For example, if a parent is found to have willfully neglected the needs of a child for at least one year despite being financially able to meet them, the state may move to terminate parental rights. Other examples include:

  • a parent’s long-term imprisonment;
  • a parent’s abusive conduct toward a child;
  • the child’s placement with the department for children, youth, and families for 12 months due to a parent’s substance abuse issue, when it does not appear as though the child will be able to return to the parent within a reasonable amount of time; or
  • when a parent’s other child or children have been placed in the custody of the department for children, youth and families, and it does not appear that providing additional services to the parent will result in reunification within a reasonable amount of time.

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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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No one likes to think about what is going to happen with their property after they die; however, by thinking about the issue now, loved ones can be spared the enormous expense and hassle of dealing with the process after the fact. Thus, everyone should create a will to determine how they want their property divided in the event of their death.

If someone dies without a Rhode Island will, they are said to have died “intestate.” Each state has a set of laws that apply when someone dies intestate. In Rhode Island, the intestate laws are contained in Rhode Island General Laws, Chapter 33-1.

Intestate laws can be complicated, and the manner in which a decedent’s property is divided depends on whether they are married and have children or grandchildren. The laws prioritize the spouse and children of the deceased; however, parents and siblings can end up with the entire estate if someone dies unmarried and without children. In many cases, Rhode Island intestate laws may not make sense and may not adequately effectuate the wishes of the deceased.

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Recently, a state appellate court issued a written opinion in a Rhode Island family law case discussing whether a letter that was written by a child to her father as part of a therapeutic exercise could be admitted into evidence in a hearing determining whether the father’s parental rights should be terminated. Ultimately, although the letter was an out-of-court statement, the court concluded that the letter was admissible.

The Facts of the Case

This was not the first time this particular case came before the Supreme Court of Rhode Island. In fact, the procedural history of the case is quite complex. To summarize the facts, the Department of Children, Youth, and Families (DCYF) moved to terminate Father’s parental rights after it was determined that his daughter was not provided a “minimum degree of care, supervision or guardianship.” At the time, the Father was incarcerated for murder. Father’s parental rights were ultimately terminated, based primarily on the fact that Father was imprisoned and his daughter had been in DCYF custody for 12 consecutive months. Evidence was also presented suggesting Father physically abused and neglected his daughter.

After the termination order, Father’s conviction for murder was reversed. Father then sought to appeal the decision terminating his parental rights. In opposition to Father’s request, DCYF offered the testimony of the daughter’s therapist.

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