August 2008 Archives

Whether you are in the middle of a Rhode Island Divorce with a lawyer that you believe is serving your interests well, or you simply have a post-divorce judgment issue that you cannot agree upon with your ex-spouse or the mother of your child(ren), I urge you to consider mediation.

In the Rhode Island family court system when you enter the doors of the courtroom if you do not have an agreement worked out with your spouse then I can tell you four (4) things with a reasonable degree of certainty.

1)  You have lost.
2)  Your spouse has lost.
3)  Your child has lost.
4)  Any paid attorneys in the case have won.

Sadly, people have this idea that they will go into court and blow their spouse or their spouse's attorney out of the water.  If it's not their spouse or ex-spouse then it's some poor child's parent.

Let me emphasize this.  When you walk into family court without an agreement written in stone then you have all lost.  The only one who has won is the attorney who has been paid for his or her services.

Citizens of Rhode Island and those who go before the Rhode Island Family Courts need to realize this fundamental precept and they need to stop grinding the axe with the opposing party and think about the practical consequences of what they are doing.  Drop the emotional baggage!  Leave your anger at the door, focus on the true issue and resolve it before you even enter the courthouse doors.

Stop grinding the axe with your former significant other and if you can't reach an agreement go to a good mediator who will take you through the practicalities of the family court system and help you reach an amicable agreement that each of you can live with.

As Rhode Island Family Court Justice Howard I. Lipsey has wisely told many Rhode Island divorce lawyers and their families in the past.

"I can sit up here and decide this matter for you.  I don't mind doing it.   If you can't put aside your differences and do it yourselves I'll decide what happens to your house, your cars, your family possessions, your assets, your debts, where your children are going to live, and go to school and so on . . . because that's what I'm here to do."

"But let me tell you . . . any decision you two can come to an agreement on is going to be better than anything I come up with.  If this matter has to go to a full hearing on the merits and I have to decide this then you are both going to walk away unhappy.  Trust me when I tell you, any agreement you come up with  is going to be better than any ruling I make about your lives."

A word to the wise . . . stop grinding the axe and mediate your issues.  Do whatever is needed to reach compromise without being clouded by emotion.  Your life, Your Rhode Island Divorce and your family will be the better for it no matter what the matter you have before the court is.

It has been said that a Court "speaks" through its Orders.  Though it may be a phrase that gets tossed around here and there both by lawyers and lay people, there is perhaps no truer statement than when it comes to a Rhode Island Divorce proceeding.

When a lawyer files a Motion in a Divorce proceeding, the lawyer is defining the relief that is sought for the party.  Depending upon the lawyer (or party), the motion will also state the allegations that are being made in support of that motion.

When the Court makes a decision regarding a motion and that decision is formalized in an Order, the Court is speaking to the lawyer, the parties and to the public (to the extent that a divorce case is a matter of public record) as to what the Court has Ordered regarding the relief that has been sought in the motion.

Whether you are drafting a motion in a Rhode Island divorce or an Order memorializing what the court has ordered, it is the wording of each document that is fundamental.

Consider this example.

A Rhode Island Divorce Lawyer's wording in a Final Judgment that has a provision for shared payments for a minor child's medical needs reads as follows:

12.  Both the plaintiff and defendant shall each pay one-half of all uncovered medical provider expenses for the minor child, Casey, until she is emancipated.

It seems rather simple and straight-forward, right?  Okay, let's take a jump into the future to see what problems may occur.

A)  Casey turns 13 and her dentist suggests that her mother consider braces because Casey's teeth are crowding and they will look better and work more effectively if they are properly straightened.  Casey's mother speaks to Casey's father about paying for half of the braces.  Casey's father refuses because he has been downsized from his company and paragraph 12 does not say anything about paying for orthodontia.

B)  Casey chips a tooth during gym at her high school.  Casey's tooth requires repair and a crown so that the remaining part of the healthy tooth is not lost and is protected.  Casey's father wants to save the tooth as recommended by the dentist and he is willing to pay of half of the cost, but Casey's mother doesn't have the money to pay for her half and argues that since paragraph 12 doesn't mention dental expenses that she is not required to pay 1/2 of the repair and crown.  However, Casey's mother could however pay for half of an extraction of the tooth which she offers to do but the dentist does not recommend simply extracting the remainder of a healthy tooth that has a significant function in Casey's chewing process.  Since paragraph 12 doesn't specifically state "dental costs" and the parents don't agree on how the tooth should be handled, they must go back to court to have the court decide.

C)  Casey develops severe asthma in her later years as a teenager.  Casey requires breathing apparatus (i.e. an oxygen machine) at night on a long term basis because medications do not give her the relief she needs at night in order to sleep.  The breathing device and refillable oxygen tanks are devices and are not covered by insurance at all and are costly.  Each parent wants the other to pay for the device because of the tremendous expense of the machine.  Both parents argue that Paragraph 12 relates to "medical provider" expenses and argue that the company that provides the medical device is not a medical provider, it merely sells or rents expensive medical devices.

D)  Casey has difficulty dealing with her parent's divorce, she starts becoming reclusive, won't talk to friends and her grades plummet to bare minimums for passing in school.  Casey's pediatrician refers them to a good divorce counselor for children.  The counselor does not accept any insurances but is known for her great work with children in divorce issues.  The father makes more money than the mother and so the mother asks the father to pay for the entire counseling.  The father agrees to pay half but he will not pay for the entire counseling.  Casey's mother insists that he pay the whole amount.  The father gets angry and reminds her that Paragraph 12 does not say anything about "mental health services" and that he is really no obligated to pay anything and that she should pay the whole thing because that is why he pays her child support, namely to take care of Casey.

These are just a few ways in which poor or inadequate language can affect a child or the parents of a child in future situations. 

Often, people think that divorce lawyers over-complicate things and that things should be kept simple.  A layperson's perspective is understandable but may be misplaced.  The law itself is not simple, it is a complex and ever-changing set of rules that govern our every day life and it is a lawyer's job to reasonably anticipate future events and try to protect his or her client in the best way possible.

A good divorce lawyer in any state is not lazy in his or her use of language.  Words and knowledge are the function of a good lawyer.  Whether you are going to hire a lawyer or act for yourself (in latin "Pro Se Ipso") then you must exercise the knowledge needed of the divorce and/or domestic relations laws in your state and you should exercise the skill necessary to use words that reasonably anticipate future events and protect your client or yourself from future court battles. 

Laws are created by words.  Arguments of attorneys are created by words.  Orders of the court are set forth in words.  Language is the skill of the lawyer and good lawyers are not lazy in language.  A litigant who represents himself or herself in a divorce or other proceeding needs to realize that the words used will govern that family and compliance with the way things are to be done.  If you are lazy in language or if you have retained an attorney who is lazy in the language used (and not simply innocent typos) in Orders, Stipulations, Decrees and Judgments then your future may be filled with headaches you never anticipated because you didn't use the right language.

A Rhode Island divorce can be traumatic even if you have a lawyer to help you through it.  There is no doubt that some people are more fragile than others.  Some women who have been "jilted" or "scorned" may be angry, experience denial or otherwise need counseling.  Some men who have been good providers and faithful for years may find that they need some mental health services to get through a difficult divorce when they just don't understand what went wrong in their marriage.

Though it is often difficult for most people to deal with divorce, some people seem to get through it just fine even if they are not the party who filed the divorce action.  Experiences are not only varied but they are interesting to note.

Yet what is not so interesting, nor enjoyable is when Rhode Island family law lawyers represent a client and help them to achieve what may be self-centered goals by helping them create a situation where none existed before.

An example is perhaps the best way to illustrate this.

Peter and Claudia have been married for 18 years.  They have no minor children and own a home together.  Peter files for divorce which Claudia claims is "out of the blue" and a "complete shock to her" even though Peter has approached her numerous times over the last year about how unhappy he was with their relationship.  Apparently Claudia attributed it to a mid-life crisis or something Peter would pass through.  Peter files for divorce.  Claudia had been working for the past ten (10) years and she is upset and depressed about the divorce filing.  Claudia takes time out of work and begins thinking and re-thinking why Peter would do this to her.  Claudia considers that there must be another woman.  Claudia also considers that Peter should have done more in the marriage to make it work or that he should have suggested counseling.  Claudia gets angry and then more upset as thoughts of the last 18 years run through her mind. 

This is not an uncommon thought process for a woman to go through. 

Claudia returns to work but her mind isn't on her work as it should be and her work just isn't up to par.  Claudia's boss mentions it and Claudia is now fearful for her job security.  Claudia consults and hires a divorce attorney who suggests that she go to a psychologist or a mental health counselor about her feelings.  Claudia takes the attorney's advice and goes to an individual and marriage counseling specialist.  The counselor confirms that Claudia is understandably depressed by the divorce situation.  Claudia feels better after going to the counselor and continues to see the counselor on a weekly basis.

Claudia is advised to take an extended leave from work to deal with her divorce and the emotions she is going through.  Claudia continues to go to counseling.  After a month or so Claudia's attorney starts arguing to the court that Claudia should receive alimony from Peter for at least two years.

Peter's attorney asks for the reason why Claudia should be awarded alimony.  Claudia's attorney is adamant that Claudia is now in a deep depression, has lost time out of work and is unable to do her work effectively as a result of Peter's filing for divorce.  Claudia's attorney argues to the judge that if he can prove Claudia's depression and that it resulted from the divorce filing then Claudia needs a recovery period and needs to rehabilitate her mental state to be able to function in the working world again.

Situational depression is a common side effect of most divorces.  However, to argue that alimony should be awarded because one party has an adverse reaction to a divorce filing is essentially punishing the payer spouse merely for filing for divorce because the relationship has failed.

Yet it has been argued by some Rhode Island divorce lawyers that rehabilitative alimony is justified for a spouse who gets situational depression as a result of the divorce filing itself.  Regrettably, some Rhode Island family court judges have bought into the argument if it is adamantly argued with the right tenor and the right documentation. 

An important tip is to note when the onset of the depression symptoms occurred.  Even if the depression relates directly to the breakdown of the marriage, the lack of a diagnosis of chronic depression by a psychologist, depression is not and should not reasonably a basis for rehabilitative alimony, especially for those spouses who were previously capable of earning an income and only incur difficulty as a result of the divorce filing or the breakdown of the relationship. 

A person's inability to cope with the actual legal proceeding that precipitates the alleged depression is not a reasonable basis for alimony.  No rehabilitation is needed to acquire more education or new skills or for entry into the workforce.  These are the fundamentals for rehabilitative alimony in Rhode Island and as such alimony based upon anything other than a longstanding chronic depression should be opposed strenuously.  Most judges will see this for what it is if you give evidence of the timing of the depression but be wary.  A difficult battle may be on the horizon if Alimony is a primary goal of your spouse.

It's no secret to Rhode Island divorce lawyers that after practicing for many years they tend to see it all.  What may be most perplexing is how a divorce can change a once timid and/or loving spouse into your worst nightmare.

It doesn't happen to everyone in a divorce but if someone were to measure the number of times it does happen, you might just be shocked.

What you see on televisions is sometimes not far from the truth.  One spouse feels scorned and threatens to destroy the other one.  A man who has been cheated on after providing for his wife for 20 years suddenly threatens to kill her.  Children are sometimes manipulated as one parent tries to get the children in the hope of not having to pay child support and bleeding the other parent dry.  It isn't uncommon.

The best tip is to be aware that it does occur.  The worst thing that could happen is for you to think that you're one of those people who it would never happen to you in a million years and suddenly you are caught off guard, thrown into shock and have no clue how to address the situation leaving you just floundering in a sea of emotion and circumstances that have spun completely out of your control.

People are capable of anything.  Divorce can be a trigger.  Anticipate the worst.  If you don't, you may find yourself reeling from the consequences.  Anticipate . . . anticipate . . . anticipate. . . . consider that your spouse may fly off the deep end even if it is totally out of character for your spouse.

In the end, be prepared.  Know this exists and be prepared for it.

Today's Question:

    For the sake of this question I'll call myself William.  I have a 401k that I began 10 years before I got married.  It had about $75,000 in it before Tammy and I got married.  We've been married for the past 13 years and my 401k is up to about $285,000.  I'm concerned about being able to pay my attorney's fees.  I'm also concerned because I want to keep the house my wife and I live in.  The house has been in our family for generations.  I don't think I can get a loan to buy out my wife's interest in the house because my credit isn't so good.  We have about $140,000 in equity in the house.  What can I do to save my house?  One attorney has told me that Tammy will get 1/2 of my 401k and that I can't touch my 401k monies while the divorce is pending.  This doesn't seem fair.  It looks like I'm going to lose 1/2 of everything I built.  I know Tammy is entitled to part of everything but it seems like I'm being left with no options but to lose the house and 1/2 of my 401k.  Is there anything I can do here?

    - William  (Coventry, RI)

Today's Answer:

    William, I can tell you that you have more options than you may think.  Ultimately, your 401k plan is the key to resolving your difficulties.  A 401k if much more versatile than a pension, annuity, IRA or any other investment vehicle. 

    First, Check with your 401k Plan Administrator.  Ask whether you are allowed to take a loan up to a certain percentage of your vested 401k balance.  Then confirm the amount of your vested balance and the allowable loan that you could take from your vested balance.  Loans on 401k plans are typical and are usually limited to 50% of your vested balance.

    For the sake of example let's assume this is a typical 401k plan and you can take a loan of up to 50% of your vested balance.  Based upon the numbers you have provided, I would be willing to venture a guess that you may be told that the entire $285,000 is vested and that your maximum allowed loan at 50% would be limited to $142,500.  You should also find out how much interest will be charged on whatever loan you take out and the maximum repayment period.  Of course you will be repaying yourself the interest so this is a considerable benefit to you.  Plus, you can check with your accountant to see if any of the 401k interest is potentially deductible because it is used as a buyout of your wife's interest in the real estate and adds to your adjusted basis in the property.

    Now William, there are a few things to take into consideration but careful planning will eliminate difficulty.  If you are already in the midst of a divorce then your are bound by the Automatic Orders of the Court.  These Orders prevent you from spending, hiding or doing anything out of the ordinary with any assets without the written consent of your spouse.  You may not unreasonably incur any debt that is not in the normal course of your home or running your business except for paying your attorney's fees.

At the outset this looks like it poses a massive hurdle but your case is a bit different.

The Rhode Island Family Court has the power of equitable distribution over the marital estate.  This means the marital assets and debts of the parties.  This does not include pre-marital assets.  You have already disclosed that your 401k had a value of $75,000 before you got married.  This $75,000 is a premarital asset.  These funds are yours.  Additionally, any appreciation relating solely to those $75,000 is also a non-marital asset because they are funds generated purely by virtue of a the pre-marital asset without further contribution from the parties.  Thus if over the 13 years if your 401k averaged 7% per annum return then your $75,000 has roughly appreciated to $180,738.38 making the marital portion of your 401k $285,000 minus $180,738.38 which equals $104,261.62.    The $104,261.62 should roughly be the true marital portion for distribution by the Rhode Island Family court.  It is certainly viable for you and your attorney take the position that this should be undisputed and that $180,738.38 is truly a premarital asset to which your wife is not entitled. 

If you are allowed a 50% loan to vested monies then you have in excess of $90,000 that you can take as a loan for both your attorneys' fees and to buy out your wife's interest in the house.  If your wife's share of the house equity is agreed to be $70,000 then even with poor credit you should be able to secure an equity line of credit or a refinance of the house even if you take out a loan of $40,000 and put $35,000 toward the house and rely upon $35,000 of the house equity to balance out the loan.  This also leaves you with an additional $5,000 for attorneys' fees.

If you take out a loan of $35,000 as suggested, then you still have $145,738.38 that should remain a pre-marital asset that you are entitled to claim as a pre-marital asset.

Keep in mind that this is an arguable position.  Technically, it is a judge's role to determine whether an asset is marital, non-marital, premarital or otherwise exempt from the court's equitable distribution power.  However, when the issue is as clear cut as this in accordance with the statutes, most judges will not penalize an individual for following the advice of his attorney in order to settle a matter on the judge's calendar.

If the judge disapproves of the manner in which you proceed and finds the circumstances to require the court's authority, the most likely conclusion is that the Judge will consider any disproportionate amount as an offset to your spouse against the marital estate.  However, pursuant to the Rhode Island General Laws this is an arguable position that you should be able to take and use without the written permission of the other party or an order of the court, especially if it is used in an effort to settle the case. 

However, if the funds are used for purposes other than settling the case, be prepared for the court to take more appropriate actions to punish you as an abusing party even if you are within your legal rights.

Originally the Rhode Island Family Court and divorce proceedings were part of the Rhode Island Superior Court.  Though they remained a court of superior jurisdiction, the Family Court was created to address family related matters which in and of themselves comprised a substantial number of cases focused on the specific subject of legal matters dealing with relationships, the well-being of the family unit and contracts such as marriage.

Seeing the need for a separate court to address divorces and relationships which resulted in contract-like situations, the RI General Assembly established the Rhode Island Family Court system and it's underlying structure.

It is helpful and important to know that Rhode Island Divorce lawyers often deal with very emotional issues for their clients because with marriage often comes divorce - the severing of the living situation, financial dependencies the parties have with each other, the children borne of the marriage, and the assets and debts accumulated during the courts of the marriage.

It is extremely help however to understand that the RI Family Court system arose out of the Superior Courts due, in large part, to the contractual nature of marriage.

A marriage, though not viewed by many people as such, is in fact a contract.  During that contract children may be born, assets may be acquired, debts may be accumulated and one of the parties may need financial assistance to survive the dissolution of the marriage contract.

Do you want to get through your divorce and move on with your life as quickly as possible?  Then as difficult it is, put aside your emotions and think about where the judge is sitting and what he or she must do.

Imagine your case the way the judge does.  The judge sits there day in and day out hearing all kinds of saga, including emotions, hard luck stories, bitter retorts, vindictive statements, heartfelt pleas to punish the other spouse and more.  Yet the judge isn't there to be your counselor or to take the court's time so that you can say your piece just to get it off your chest and feel somewhat better just for having said it.

The judge sits on the bench in a divorce case to help the parties reach an equitable result to the dissolution to your marriage contract.   

Think about the judge's role and take the most direct result to the resolution of your divorce that is fair and reasonable or that is acceptable to you.

While the judge sits on the bench he or she has a specific role, namely to identify and deal with the important aspects of what your marriage produced.  Usually it is fairly straightforward.

1)  Minor Children
2)  Marital Assets
3)  Marital Debt
4)  A Spouse's ability to financially survive after the divorce.

While it is true that each of these items has each of its own characteristics, a divorce can reasonably be converted down into these four (4) basic elements for the purposes of understanding how you can help yourself through it.

This is simply a practical tip that will help any party to a divorce, IF, you can do it. 

1)  Put your emotions of rejection, anger, feelings of fault, depression, and all other emotions about your relationship away as much as possible when dealing with your Rhode Island Divorce Lawyer.  Why?  Because lawyers address the legal issues the court will rule on and unless they have counseling training for mental health issues, they are not the best ones to voice those concerns too.

I am not recommending that you bury your feelings or that you don't deal with them at all.  I am suggesting that you find a good psychologist, psychotherapist, individual counselor, family counselor and/or marriage counselor and talk them out, whether they be feelings about your spouse's infidelity or your own insecurity or fears.  Your emotions should be dealt with by a professional skilled in mental health and emotional issues.

2)  Focus on what the judge must deal with in your marriage.  Those are the four points I have listed above.  These are at the center of your Rhode Island divorce.   If you can remove the emotion from these points and focus on them in the order they are listed and decide upon them in the order in which they are listed then you will have the best opportunity to resolve your divorce as quickly and and effectively as possible to move on with your life.

The Rhode Island family courts are not a forum for waging vendettas and punishing your spouse for the wrongdoing you believe he or she has committed that have caused you to feel hurt or embarrassment.  Move on with your life sensibly and maintain your self-respect and dignity.  In this way, your life will grow and be enhanced much more quickly.

Life is all about change but not all change is bad.  Divorce is a big change for spouses and for children but it need not be a bad change.  Divorce is not only an ending of something you are familiar with, it is the beginning of something new, a great adventure that may bring you untold happiness without measure.

Embrace it and Live for You!

My practice is focused almost entirely on Rhode Island family law.  Every week I hear the same sentence by people trying to find the most affordable Rhode Island Divorce lawyer.

"I have a simple divorce.  We agree on everything.  What's your price for an Uncontested Divorce"

No doubt I'm going to burst a few bubbles here and perhaps even anger a few people, but I'm a lawyer who tells it like it is.

First, when you call an attorney and you say these three little sentences, here is what the translation ends up being. 

I'm shopping for an attorney because I don't think I can do this divorce myself.

I'm calling you because I'm looking for someone who is cheap. 

If you are a lawyer and you are cheap then I might hire you because any lawyer should be able to do something as simple as my divorce.

Even without any tone or inflection, this comes across as an insult, especially to a family law attorney who knows that every case is different.

It is no understatement on my part to you that these are the calls I get all week because I offer my services as Rhode Island's Most Affordable Full-Time Divorce and Family Law Lawyer.  More than 90% of the calls I get are asking, What's your price for a completely uncontested divorce?

People are lawyer shopping.  Not only do I understand that, but I encourage it.  Yet this is far from the best way to go about it.  Certainly, it is not an easy thing to find a good Rhode Island Divorce Lawyer and there is no magic book to tell you how to find a good one that offers reasonable rates. 

However, calling a bunch of Rhode Island lawyers who advertise that he or she does divorces and then asking how much he or she charges for an uncontested divorce and choosing the lowest price one because you have limited financial resources is far from the best way to get good results.

I can say with sincerity the following just as if I were saying it to one of my brothers, "It is worse to have a lawyer who doesn't know what he or she is doing in divorce and family law than it is to have no lawyer at all."

Certainly you want to price shop for an attorney, but if you engage the services of a lawyer who does not know what he or she is doing when it comes to divorce or family law then you  might as well fold your money into a paper airplane and sail it out the window.  A lawyer who is not skilled in Rhode Island divorce and family law may quickly and easily give you a telephone quote for an uncontested divorce because he or she does not handle them frequently and simply wants to get some money "in the door".  Most attorneys have overhead expenses to pay after all.

Yet I digress.  This article is not about how to select a Rhode Island Divorce and Family Law Lawyer.  Rather, this article is about understanding that a good Rhode Island Divorce and Family Law Lawyer will not simply quote a a price to you over the phone. 

Why? 

Because good Rhode Island divorce lawyers know that 9+ out of 10 people who call will say that they have an uncontested divorce when the divorce lawyer who practices enough before the family court knows that only about 1 in 20 cases is truly uncontested from the outset and that this can only be determined with any degree of certainty after a detailed consultation and question and answer session with the prospective client.

If you get anything out of this article, I hope that it is this sentence. 

Every divorce case is different.

Those of us who choose to practice as Rhode Island Divorce lawyers know the intricacies that plague each of the cases.  We have honed our skills and our minds to identify the present issues, tax consequences, future medical issues and much more so that you can rely upon our advice and give you solid legal representation.   A good Rhode Island divorce lawyer knows that family law is always changing and that as much as we may try we are not always "up to the moment" on every case that has been ruled upon.  A true professional when it comes to divorce and family law will state with confidence that  he or she would prefer not to give you advice on a particular issue until he or she has checked into the latest cases on the issue. 

No lawyer is expected to know everything on any subject.  However, a good lawyer working within his or her primary practice focus will take prudent steps to insure that the correct advice is given to anyone he or she is speaking to.

So, what's my price of an uncontested divorce?  I have none.  I make it a rule not to quote prices over the phone because as I have said, I know that every divorce is different.  All lawyers are not the same.  Some have chosen to focus their practice in an area of law.  If you are going to hire a Rhode Island lawyer for your divorce or other family law matter, then take the time to meet with and screen each lawyer.

If you just want to hire the cheapest attorney possible, then just call a lawyers who just finished law school, has passed the Rhode Island Bar Examination and was just sworn in before the Rhode Island Supreme Court.  Why do that if you want CHEAP?  That lawyer is hungry for income and clients to start his or her new career.  Then, chances are better than not that you can just waive goodbye as your money goes out the door as you pay for a lawyer who probably doesn't have the slightest idea what they are doing in family court or perhaps where it is located.

I'll say it again and I can't stress this enough.

Every divorce is different.

More than 9+ people out of 10 who call me will say they have a completely uncontested divorce.  Yet only 1 out of 20 of those callers actually do have an uncontested divorce.

When trying to get a price for your divorce, the attorney will know if your divorce is likely to be considered uncontested or not, BUT only after a detailed consultation and explanation of your rights to you.  Without that, most people only state they have an uncontested divorce because they think that they do or they want it to be uncontested OR because they believe that by asking for the uncontested rate they can just hire the attorney at the cheapest possible cost and then deal with any additional cost later.

Consider this analogy and perhaps you won't be so offended or you will understand when a professional Rhode Island divorce lawyer tells you that he or she is unable to quote you a rate for your divorce over the telephone.

ANALOGY

Let's say that you call up up a department store to get a price on spark plugs for your car, the call center must switch you to the department that focuses on that specialty product right?  So you have to get to the department that carries that product.  This is just like finding a true divorce lawyer in the midst of all the thousands of lawyers in Rhode Island.  Fortunately, it's much easier because the call center person knows that there is a specific department for that and just shunts your call to the Automotive Department.

When the Automotive Assistant picks up the telephone, you ask how much it costs for the cheapest spark plugs for a basic Chevrolet.

Can the Automotive assistant tell you the correct price without asking you more questions when the store carries (4) 4 brands of spark plugs for all different makes and models of cars and trucks? 

No.  The automotive assistant can't help you at all without asking you more detailed questions.  In fact, without more information the automotive assistant may not even carry the spark plugs you need. 

Fairly similar, right? 

What's your price for an uncontested divorce? 

and

What's your price for the cheapest spark plugs for a Chevrolet?

In fact, the automotive assistant may have to take quite some time with you on the telephone asking you about the Model, YEAR, Number of Doors, Engine Size and other information in order to figure out which spark plugs would even fit your car for ONE BRAND!  Then he or she may have to do the same for all four (4) brands to see what fits, what is available and what its cost is.  Then, finally the automotive assistant might be able to tell you what the cheapest one that fits your car is that they have in stock.  This is pretty similar to a full consultation with a divorce lawyer don't you think.  He or she has to ask you the questions that he or she knows to ask to find out what is needed for your case just as the automotive assistant needs the information to find out what spark plugs fit your needs.

Now, what happens.   You are dealing with an inexperienced lawyer who thinks he or she knows the questions to ask.  Yet isn't he or she really just like an inexperienced automotive assistant who is some poor kid just out of college trying to figure out what to do with his life and is working in the automotive department for minimum wage?  What if the automotive assistant is wrong andgives you the wrong spark plugs and you try to use them into your car.  After all, you relied on the automotive assistant's knowledge, right?   And a spark plug is just a spark plug, isn't it?

Well, you can guess what could happen.  You could blow the engine and make it unusable.  You couldstrip the spark plug threads requiring retapping of the treads at substantial cost.  You could ruin the ignition timing so the timing needs to be redone, perhaps the replacement of the timing belt, engine damage, etc . . .   

So you paid the cheapest price on spark plugs from someone who you expected to know what they were doing and you have a ton of headaches. 

Do you think the automotive assistant or the department store is going to be responsible for those headaches or your costs?  Do you think they will be able to reverse the damage that was done?  Nope.  Too late.  You should have gone to a specialist who might have told you which spark plugs were correct or you might have been told that the cheapest ones will only cause you costly headaches down the road and that the middle priced spark plugs are much better for your needs.

Ultimately, some attorneys may have a fixed price for an uncontested divorce.  They may, in fact, be cheaper than everyone else, including me, but that doesn't mean that they are the best for your situation, nor does it mean that they even care about your situation, or what happens to you if you follow their advice and it happens to be a bit off. 

Unfortunately, though readers may not wish to hear this, getting a price on what you state as an uncontested divorce is not the same as buying a small, black coffee at the Dunkin Donuts drive through.  This is divorce law.  It is complicated and it changes frequently.  Without knowing all the details a good family law attorney can't properly give you a price. 

If you call an attorney and simply get a set price on the telephone for a retainer and hourly fees and you haven't discussed with the attorney any aspects of your situation or your case or your life then I have only one word for you . . .

NEXT!

How does a Rhode Island divorce lawyer who is seemingly competent make the mistake of advising clients and people in general, through writings, articles, press releases or other literature or publications that Rhode Island is a NO FAULT state when it comes to divorce? 

I've seen this on several lawyer's websites and I've seen this on generic legal sites that try to entice you to come to their sites so they can help hook you up with a legal referral service from which I can only presume they receive some kind of kickback or monetary remuneration. 

Yet for heaven's sake, should a lawyer at least get the fundamentals right!  It's no wonder lawyers have a bad name when lawyers go out of their chosen field of expertise and give answers that are incorrect simply because they don't want to lose a client or appear inept.  This becomes a stereotype that is then applied to all lawyers.

Well, let me set the record straight.  Any lawyer, whether they are licensed to practice law in Rhode Island or not, who tells you that Rhode Island is a NO FAULT state when it comes to divorce, simply does not know what they are talking about.  Frankly, if after reading this article you go ahead and hire such a lawyer then you deserve exactly what you get.

This is and should be an easy question for any Rhode Island lawyer who professes to practice before the Rhode Island family courts.  Even if it isn't know off the top of the lawyer's head, he or she should be able to look up the answer in a matter of 60 seconds.

Here's a quick lesson.  A state that is considered a NO FAULT divorce state is one in which divorces are not granted based upon the fault of either party.  In other words all grounds for divorce in that "NO FAULT" state are not based on the fault of either party.

I've heard it stated by Rhode Island lawyers and I've even seen it published by Rhode Island lawyers that Rhode Island is a NO FAULT divorce state.   WRONG!  WRONG!  WRONG!

Frankly, I don't have to tell you it's wrong at all.  The Rhode Island General Assembly that makes the laws of our state has already said it.

Though Rhode Island Family Court judges and most parties prefer divorces that are based on irreconcilable differences (which WOULD be a NO FAULT divorce) that is not the only grounds for divorce.   The following section of the Rhode Island General laws spells out the additional grounds for divorce as follows:

§ 15-5-2  Additional grounds for divorce. – Divorces from the bond of marriage shall also be decreed for the following causes:

   (1) Impotency;

   (2) Adultery;

   (3) Extreme cruelty;

   (4) Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;

   (5) Continued drunkenness;

   (6) The habitual, excessive, and intemperate use of opium, morphine, or chloral;

   (7) Neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and

   (8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.

Now, if any Rhode Island lawyer who professes to you that Rhode Island is a NO FAULT state.  Please have him or her explain to you how each of these items lacks a condition or action by either one or both parties that is not fault based.  Then, please give me a call and explain it to me.

My point is simply this.  Rhode Island is NOT a NO FAULT divorce state.  This is an easy way to determine if the lawyer you are considering engaging for your divorce matter knows what he or she is talking about or not.  If you ask the lawyer if Rhode Island is a NO FAULT divorce state and he or she says "yes" . . . then I highly recommend finding a new lawyer to interview.

Often Rhode Island child support becomes a frustrating situation not only for clients but also for lawyers.

Imagine that you are a client who has placement of three children.  Your ex-spouse is making considerably more money than when you divorced and the cost of living has risen.  First, you contact a lawyer about your child support rights and whether modification is appropriate.  Second, after finding out that modification is appropriate you speak with your ex-spouse and he is unwilling to agree to give you a dime more than you are already receiving in court ordered child support.  So you resort to having your attorney send a letter to your ex-spouse asking for agreement of a small increase and that if you cannot agree that a Motion to Modify will have to be filed with the court.

Sounds simple enough doesn't it?  If the ex-spouse doesn't agree then you file a Motion to Modify and the court will modify your child support if you meet your burden of proof, namely that there has been a substantial change in circumstances since the last order was set.

Enter the ex-spouse who gets an attorney friend to serve the placement parent with 6 motions on the day a response is requested.  The placement parent's attorney files a Motion for Contempt and a Motion to Modify Child Support.

The ex-spouse concocts even more and more motions as the initial filing party and the Motion for Child Support which is truly the issue is placed on the back burner by the court.  Despite the efforts of the placement parent's counsel, more and more motions are filed by the ex-spouse to further cloud the issues and take the court on so many tangents that no judge could see the forest for the trees even if he or she wants to.

Here's the clincher for the attorney representing the placement parent.  How do you explain to your client after 3 years of fighting and after the ex-spouse's attorney has filed 35+ motions that there is no end in sight and the family court judge has literally refused to hear the placement parent's Motion to Modify Child Support despite countless direct requests that a hearing be held on the subject?

It is not only a child support issue but a legal frustration both for the client seeking the modification and for the lawyer representing the client.  This is not simply because it makes the lawyer appear inept when he or she may have done everything within his or her power necessary to obtain a hearing, but also because the client is entitled for child support relief for the benefit of the children.

I have had the displeasure of seeing several unfortunate circumstances similar to the one described.  In truth the problem is caused not only by the system but by lawyers who may be questioned as to whether they are acting within the boundaries of their ethical obligations and are abusing the system.

Unfortunately one lawyer usually has no control over another lawyer who is trying to bury a valid Motion for Child Support Modification under a mound of motions so deep   that the court will never see it and never address it.

The question then becomes, does the placement parent who is moving for the modification of the child support have an entitlement or right to a hearing on the subject. 

Rhode Island law regarding child support gives family court judges discretion as to whether to award the moving party child support retroactive to the date the motion was filed.  Assuming for a moment that the motion is heard 3+ years later by the court, what do you think the chances are that the non-placement party will be ordered to pay 3+ years of retroactive child support? 

As a Rhode Island lawyer, I can tell you quite frankly that it is slim to none that the placement parent will be given the rightful award retroactive to the date of filing because the amount of retroactive support is likely to be seen as so large as to appear punitive.  Since the court does not award child support as a punitive measure and judges are afforded this retroactive discretion the award of retroactive child support is unlikely at best.

As a lawyer, it is not an enjoyable task to explain to your client that a retroactive award of child support for the children is unlikely without even having had a hearing.  Perhaps the more difficult part for an attorney is realizing that when a family court judge fails to hear a Motion to Modify Child Support in a timely fashion and otherwise may fail to exercise his or her discretion to grant support retroactive to the date of the Motion to Modify, that judge is more than hurting the placement parent, that judge is depriving the minor children of support that they are entitled to from the non-moving parent.

It should always be remembered, both by lawyers and by the courts that child support, and thus Motions to Modify Child Support, relate to the parent's exercise of rights on behalf of the children.  Thus, if a Motion to Modify Child Support is granted, shouldn't it also be correct and proper to grant the child support retroactive to the filing date.  It causes one to question why a retroactive ruling is not always the case and why the family court judiciary are afforded discretion in this regard which deprives minor children of child support to which they are entitled.

What then can a lawyer or pro se individual do when faced with a Motion to Modify Child Support that he or she seemingly can't get before the court? 

Stay the course!  Do not diverge from the purpose of your motion to modify.  Continuously bring the court's focus back to this Motion over and over again.  Make every effort not to let the court get side-tracked by opposing counsel, opposing motions and other obstacles that are not as crucial to the well-being of the minor children.  Emphasize to the court that the longer the motion goes unheard the longer the children go without necessary child support in an ever worsening economy. 

This is a situation where you must have laser-like focus and purpose to insure to the best of your ability that the Motion to Modify Child Support is heard.   The court has often focused on the fact that one of it's foundational tenets is the best interests of the minor children.  Most assuredly the financial best interests of the minor children are among the most important.  Food, clothing, education, shelter and medical care are all part of the financial aspects of child support.  Without increases when warranted by the court and awarded by the court, the minor children suffer. 

Though there are no guarantees, this is the best avenue of focus, for your client seeking modification and for the children who NEED the modification.

As a Rhode Island Divorce Lawyer perhaps one of the more controversial issues I've dealt with is the case of the alcoholic spouse or parent. 

Officially, the policy statement of the Rhode Island family court is stated on their Family Counseling Unit Services form which is filed with every divorce.  The Family Court's policy statement reads as follows:

Policy Statement:  The Family Court recognizes alcoholism as an illness and that such drinking problem is treatable and that entering treatment or counseling will not be prejudicial to legal issues in the court.  The court is sensitive to the family problems raised by problem drinking and wishes not to be considered an obstacle to help in these matters.

The question for Rhode Island divorce and family law lawyers is whether to simply explain to clients that they should simply accept this as the court's policy, or whether to advocate that they take whatever position serves their ends in family court.

The issue is more problematic when personal beliefs conflict with family court policies.  This is true both for the individual who chooses to represent himself or herself as well as Rhode Island divorce lawyers who may disagree with policy.

Neither those who represent themselves in court nor divorce lawyers in Rhode Island are required to conform their own personal or professional beliefs to the family court's policy statements.  These policy  statements merely set forth the family court's view as a governmental body to the treatment of . . in this case. . . alcoholism in matters before the family court.

It would not surprise me if there are perhaps many individuals and even many Rhode Island divorce lawyers and family law practitioners who disagree with the treatment of alcoholism as an "illness."   This may be perhaps because the use of other drugs, whether by prescription or otherwise are thought of more along the lines of a voluntary addiction than is alcoholism.  It is as yet an unanswered question to many as to why only "alcoholism" is the subject of a policy statement on an official court form.  Is alcoholism deserving of special treatment when there are addictions and illnesses that are just as prominent and just as devastating to families in divorce and other situations.

In the end, the best bet for Rhode Island family lawyers and individuals who seek to represent themselves is to take the position that best furthers their case in family court whether it is contrary to the policy statement or not.