Recently in Rhode Island Alimony Category

As a Rhode Island Lawyer focusing my practice exclusively in the area of Rhode Island Divorce and Family Law, I have learned that when people come in for a consultation they want to tell me their story and they want to be told exactly what they want to hear. 

Yes, despite the fact that every divorce lawyer may not portray a realistic scenario to the potential client, clients need to realize that a lawyer may tell them exactly what they want to hear.

If you skimmed that last paragraph which was only one sentence long and you have already forgotten it, then . . . my dear reader . . .WAKE UP!

I'll repeat it because it is so crucial and I'll even be more blunt.  Some lawyers . . . to get your business . . . will tell you exactly what you want to hear!  They may give you results that are not realistic not just for your divorce case but for ANY divorce case.

Lawyers are businesspeople and they get hit by economic times too.  Without clients they don't have income.  Without income, many of them can't afford that cushy little porshe or mercedes they drive.  Without income,  they may have to consider making a late payment on their house or their summer home.  Without clients, the lifestyle a lawyer may have developed for him or herself doesn't last long.  So the lawyer needs to bring in clients. 

That may be you!  Wouldn't it be nice to go into a divorce lawyer and give him or her a quick snapshot of your life with your spouse and kids and then he or she tells you how everything is going to be fine, that they've dealt with this scenario a million times before and that if you hire them, then they will deal with all that anxiety for you and it will be over before you know it.  Imagine a lawyer telling you that all this stress you are feeling right now is needless because the lawyer is going to get you a great divorce settlement and that you should let him or her deal with it and your troubles will be over.

Now, here you are all comfortable and feeling that this lawyer is going to take care of all your divorce troubles when he tells you the cost.  If you are especially stressed out, are you likely to agree to provide him or her with a $3,500 retainer at an hourly rate of $250 per hour?  Most people will find a way to do so because the lawyer is offering a solution to divorce stress and anxiety in your personal life.  What is more painful to you?  The stress and anxiety at home or parting with a few thousand dollars.  In many instances the stress outweighs the money. 

Some, but not all lawyers will do this.  Let me give you an example that came up recently but I'll change the players and the issue itself to protect the privacy of the individual involved.

Clyde met with me for a consultation.  Clyde wanted to divorce his wife Cassie.  Clyde and Cassie had a fight and Cassie told Clyde that he could go ahead and divorce her because she'd be set for life.  Clyde didn't know what Cassie was talking about so he asked her.  "Well", Cassie snapped, "I've already been to a lawyer and he already explained to me that you're going to have to pay me alimony and I'll be doing just great and you'll be broke."  Clyde looked at her in disbelief. 

"Really?" Clyde stated in disbelief.  "Yes.", Cassie answered.  The lawyer told me that you'll have to pay me alimony "indefinitely".  Clyde answered, "I don't think that's true Cassie.  You may want to check with another lawyer."

Cassie got angrier.  "I don't need you telling me what to do.  I've already seen a lawyer and I know what is going on and my lawyer said you're going to be paying me alimony FOREVER!"

"I don't think that's how it works Cassie. So you may want to check with another Rhode Island divorce lawyer."  Clyde was urging her now.

"Nope.  I like this guy and he's told me exactly how it's going to go for you and I like that just fine.  So go ahead and serve me with the papers because I don't like the way you're handling the money as it is."

In this situation it isn't hard to see what has happened.  Cassie went to a lawyer for what was probably a free consultation and she told the lawyer what was probably only her side of the story.  The economy is hurting and the attorney figured out what Cassie wanted to hear in order to hire him as her attorney.  So the attorney painted Cassie a very rosy picture and told her exactly what she wanted to hear in order to get her as his divorce client.

Only too often this is the rule rather than the exception.

It is best to remember the old adage.  If something sounds too good to be true. . . it probably is!  The easiest way to get a divorce client is to tell him or her what they want to hear instead of being honest about the process and what may or may not occur.

If a lawyer is pressing you to engage him or her as your divorce lawyer, usually this is a warning sign.  If you don't hear a few things that put you on edge during a consultation because they cause you to worry a little, this is another warning sign.  If you hear everything you want to hear AND you are pressured into retaining the lawyer's services quickly this is a warning sign as well.

On rare occasions when there is an uncontested divorce or when the parties have good respect and communication with each other, then it is reasonable to hear everything you want to hear from the lawyer.  Otherwise, if the lawyer doesn't raise some possible issues that give you cause for concern, then you should consider whether the lawyer is just telling you what you want to hear just to get your business, especially if the lawyer stands to gain a substantial hourly rate off the arrangement.

In the end, be careful.  If you hear exactly what you want to hear when there could be issues of alimony, child support, visitation, placement, retirement plans and real estate division, then you should shop around by selecting lawyers who are known to routinely practice divorce law before the Rhode Island Family Courts.

This Rhode Island divorce tip article is a follow-up to my first tip article which may be found at http://www.rhodeislanddivorcetips.com/2008/11/rhode-island-divorce-lawyers-tip-on-alimony-language.html

This first tip article is helpful, if not essential, to helping you understand rehabilitative alimony in Rhode Island.  Therefore I recommend that you read my first alimony tip article if you do not already know how Rhode Island law treats alimony in general.

Lanuguage is crucial in both Rhode Island Settlement Agreements and especially in the Rhode Island divorce proceedings when it comes to alimony awards and alimony waivers.

Whether you are representing yourself or you have a Rhode Island lawyer to represent you in your divorce proceeding, it is best to be vigilant when it comes to the language used by you, your lawyer and even the judge.  In this divorce tip article the crucial word you should focus on is "non-modifiable."

Leaving out the word "non-modifiable" in your Marital Settlement Agreement or failing to clarify to the judge a request for the court's order to include the word "non-modifiable" could lead to hazardous consequences.

Consider this Rhode Island Divorce example about Mr. and Mrs. Lawyers:

Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of $400 per week for a period of three (3) years in their Marital Settlement Agreement and he has testified to that on the record of the court.  Mrs. Lawyers agrees that Mr. Lawyers' testimony is accurate and that $400 per week for three (3) year is precisely what they agreed to in their Marital Settlement Agreement.

Mrs. Lawyers testifies that she wants to waive alimony after that three (3) years has been paid, that she knows that this waiver would be permanent, and that she believes she will be able to sustain herself at the end of the three year period and therefore she would like the court to grant her permanent waiver.

At the end of the hearing, the Court orders the following:

Mrs. Lawyers is awarded weekly alimony of $400 per week for a period of three (3) years from Mr. Lawyers and that upon completion of the three (3) years Mrs. Lawyers' request for waiver of alimony is granted and she waives alimony permanently.

Do you notice that the word "non-modifiable" does not appear anywhere in the excerpt of the testimony above?  Do you notice that Mrs. Lawyers confirmed that it is "precisely what they agreed to" in their Marital Settlement Agreement? 

Let's assume this is correct and that the Marital Settlement Agreement doesn't contain any reference to alimony being "non-modifiable". 

Now, imagine that Mr. Lawyers secures a job that pays considerably more than his last job, that he becomes a partner in a very profitable business, that he creates a very successful invention, that Mrs. Lawyers gets into a tragic accident in the first year after their divorce which leaves her with brain damage which prevents her from proceeding with her attempts to rehabilitate herself and become self sustaining.

Choose any one of these events or any other event that you might think of that drastically affects the earnings or abilities of Mr. and Mrs. Lawyers within the three (3) years alimony is to be paid.

What is important here is what Mrs. Lawyers DID NOT agree to!

Even though Mrs. Lawyers waived alimony permanently after the three (3) years of payments, she DID NOT agree at any time that the alimony during those three (3) years would be non-modifiable.

If Mrs. Lawyers wanted to, she could retain a Rhode Island lawyer and once again return to court and request that the alimony she is receiving in those first three years be increased based upon either Mr. Lawyers' increase in his ability to pay more alimony and/or her own decrease in her ability to provide for herself over the long term as planned.

Though the agreement provided for $400 per week of alimony for a period of three years, this merely indicates to the court that this is an amount and timeframe that was either agreeable to the parties or ordered by the Rhode Island family court judge at the time of the divorce.  However, without the word "non-modifiable" before the word "alimony" this DOES NOT prevent Mrs. Lawyers from arguing that neither the parties or the court intended that it could not be modified during that three (3) year period if circumstances changed which warranted a modification of the amount of alimony.

What could this mean for Mr. Lawyers?

If either Mr. Lawyers or his Rhode Island attorney did not add that one word "non-modifiable" then Mr. Lawyers could end up paying $600, $900 or even $1,200 per week to Mrs. Lawyers for the remainder of the three (3) year period, if the Rhode Island family court judge found that Mrs. Lawyers had that need for such alimony and Mr. Lawyers was capable of paying that amount of alimony.

What monetary difference could this make to Mr. Lawyers?

Let's say the court found Mr. Lawyers had the ability to pay Mrs. Lawyers Rhode Island alimony in the amount of $900 per week for the last 28 weeks of the three (3) year alimony period that was agreed upon.  Let's also assume that the court held Mrs. Lawyers to the three (3) year period of alimony because she had validly waived alimony permanently after that three (3) year period of time.

Mr. Lawyers had agreed to pay $400 per week.  Mr. Lawyers is now ordered to pay an extra $500 per week for the last twenty-eight (28) weeks.  This now requires Mr. Lawyers to pay Mrs. Lawyers an extra $14,000 that he hadn't planned on.

To Mr. Lawyers and/or Mr. Lawyers' Rhode Island attorney, the omission of that single word . . . "non-modifiable" . . . just cost Mr. Lawyers $14,000. 

The words you use in your agreement and the words used in the order by the court are crucial.  Care should be taken in drafting any alimony provision in a Rhode Island Marital Settlement Agreement.  Care should also be taken to make sure that the word "non-modifiable" is used by the court in its order, if that is what is intended or expected by the parties.

In this example it was worth $14,000 to Mr. Lawyers.  That's one very costly word, don't you think?

In a Rhode Island Divorce proceeding alimony must be awarded or denied by the Family Court Justice.

Since alimony under Rhode Island law is rehabilitative in nature, more often then not it is waived by one or both parties during the course for most Rhode Island divorce proceedings.  

Alimony that is rehabilitative is awarded by the court based upon the recipients need for financial support while he or she (1) re-establishes himself or herself in the working world with existing skills, (2) re-trains himself or herself with skills sufficient to sustain himself or herself with more modern skills, (3) is unable to care for himself or herself due to injuries, illnesses, handicaps or other circumstances that reasonably warrant the award of alimony for an extended period of time because one spouse is unable to care for himself or herself.

Alimony may be agreed to by the parties in circumstances when an award of rehabilitative alimony may be considered inevitable by the parties and/or their lawyers.  In other instances, a spouse may agree to pay rehabilitative alimony to the other spouse because their is an ability to make such a payment, even if the court would not normally award it, and one spouse wants to help the other spouse for a reasonable period of time until he or she regains a financial foothold on his or her own.

 
Whether alimony is by an award of the court or by an agreement of the parties, it is important that the language used by the court for any award of alimony is accurate pursuant to the agreement of the parties or as intended by the court.

The typical example is when an award of alimony is made for a specific amount of money for a specific period of time.  In this instance, clarity of language is essential!

Assume that Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of exactly $400 per week for a period of three (3) years.    Now let's assume that the alimony award is phrased as follows in both the Marital Settlement agreement of the parties as well as the Decision of the Court.  Nothing else is mentioned about alimony.

    "Defendant Mrs. Lawyers shall pay Mrs. Lawyers rehabilitative alimony of $400 per week for a period of three years."

Here is where accuracy in the language regarding the rehabilitative alimony provisions is crucial when it comes to clarifying the Marital Settlement Agreement and/or the Decision of the Court.  If this is the ONLY alimony that Mrs. Lawyers is to receive per their Marital Settlement Agreement, then Mrs. Lawyers MUST request to waive alimony permanently on the record of the court and Mr. Lawyers or his attorney must make sure that the decision of the court is clarified to state that Mrs. Lawyers waives alimony permanently after that three year period.  Either Mr. Lawyers or his attorney should do so even if it means clarifying to the judge BEFORE the hearing or trial is concluded that the award of alimony should involve a waiver of alimony permanently with the exception of that three year period.

Why is this so crucial in a Rhode Island divorce proceeding?

Well, in the first instance it is significant to Mr. Lawyers.  If there is no permanent waiver of alimony by Mrs. Lawyers other than that three year period, then Mrs. Lawyers has a viable legal argument that alimony WAS NOT expressly limited to that three year period of payments because she DID NOT waive alimony permanently.  Therefore, if things aren't going well for Mrs. Lawyers at that time and Mr. Lawyers still has the ability to pay continued alimony, then Mrs. Lawyers might decide to return to court for another 1, 3 or more years of alimony.

In the second instance, if Mr. Lawyers has hired a Rhode Island attorney to protect his interests in the divorce, then the attorney may have made a crucial mistake because he or she didn't make sure a permanent waiver of alimony was made by Mrs. Lawyers.  Unless there was a miscommunication or some other circumstance which explains why the Rhode Island attorney didn't insure the permanent waiver of alimony was made, then the Rhode Island attorney may find himself or herself on the receiving end of a legal malpractice claim.