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A recent call from one of my Rhode Island clients sparked an interesting issue regarding the client's divorce.  It is not a question that arises as frequently as many others but it does raise its head on occasion because in today's litigious society there are frequent personal injury claims that arise.

ISSUE:

Assume that a wife has a personal injury claim that occurred during the marriage but may be worth a substantial amount of money.  The husband and wife get divorced but neither party discloses the claim as a potential asset that may be part of the marital estate because it was merely a claim at the time they settle their divorce.  Before the Final Judgment of Divorce is entered, a Rhode Island Insurance carrier pays the wife $120,000 to settle the wife's claim.  The husband has his lawyer file a motion in Rhode Island Family Court seeking half of the $120,000. 

What, if anything, might the Husband be entitled to since his Rhode Island Divorce is not yet final?

GENERAL ANSWER:

The answer revolves substantially around the way in which the Rhode Island personal injury claim was settled.  Monies received for medical bills are typically subject to a lien by the medical insurance carrier that must be repaid to that carrier.  Monies paid on a claim that are paid for pain and suffering are intended to make the individual who was injured "whole" and therefore the payment is distinct compensation to something wholly individual to that person and not part of the marital estate.

The only portion of a personal injury settlement that is normally considered part of the marital estate and therefore is subject to distribution by the Rhode Island Family Court judge is that part of a settlement that compensates the wife for her lost wages.  This is because the wages of either party are considered "marital" regardless of which party earns them by the very nature of the marriage covenant.

Thus, the only portion the husband might receive is a possible award of any lost wages the wife was compensated for by the settlement.

I commend those people who are "do-it-yourselfers".  I happen to be one of those people myself.  People such as these always seem to be willing to undertake a challenge even if it means trying to save money by representing themselves without a Rhode Island Divorce Lawyer.  Yet in the same breath, I have to caution almost 99% of the population against it.

I had yet another consultation recently where a person asked the question at the end of the consultation, "Why do I need a Rhode Island divorce lawyer?"

This is perhaps the biggest "loaded question" I get because the answer is not as simple as saying something like "because as a Rhode Island divorce lawyer I've gained the skills to anticipate things that you may not anticipate as a layperson."  Frankly, though I wouldn't want it to sound condescending, it sounds that way almost invariably to everyone and as a result some people get offended.  Certainly that wasn't my intention.  Yet no matter how I vary my tone or the flow of conversation, it comes out that way.

The fact is, that I learned (personally) the hard way that you need a Rhode Island Divorce Lawyer in almost every instance.  The law, including Rhode Island law, is never as simple as people would like to think it is.  Though many people might think that we as lawyers are "overcomplicating things" in order to get more clients, the law is complicated.  There are subtleties and caselaw associated with statutes in the Rhode Island General Laws that most laypeople will never read, let alone pull together the significance that several cases may have upon the significance of the interpretation of a law by the courts that may severely impact their case or the position they are taking.

Therefore, invariably I have changed the manner in which I answer this "loaded question" of "Why do I need a Rhode Island Divorce Lawyer?"  I now answer the question with examples.

The question usually comes up with people who want to save money and have very little in the way of assets or have no children at all.  Yet many couple's have something in their divorce that is problematic and they aren't even aware of its significance.

An example of a couple who did not retain Rhode Island Divorce Lawyers to protect their interests is   helpful here.

EXAMPLE

John has a consultation.  He has been married to Linda for only one year.  They were best friends and took what they thought to be the next logical step in their relationship.  Unfortunately they found they were great as friends but terrible as a married couple.  Each of them had different expectations of what marriage was all about and what they expected of the other.

John and Linda each had their own apartments and their own possessions prior to their marriage and all of those items of personal property had been retained by each of them.  They did not have any real estate.  They did not have any children.  They did not have any retirement plans.  At the beginning of their marriage they agreed that John would carry the health and dental insurance for both of them and pay for that out of his income.  John and Linda each worked a job and made roughly the same amount of money.  Linda, did, however get an annual payment of $2,000 for not electing to be on her company's health insurance plan.

John doesn't believe they need a lawyer in order to do their divorce even after his consultation and a reasonable and even affordable quote for representation.  It's understandable because people simply don't like paying Rhode Island lawyers, especially Rhode Island divorce lawyers.

John and Linda reach an agreement, John files for divorce and muddles his way through the process and he and Linda finally make it to their Nominal Hearing date in the Providence County Family Court.  John and Linda miss only one important question and the particular Judge hearing their case is kind enough to ask the question to finalize the requirements of Rhode Island Law to be able to grant the divorce.

Both parties sit at plaintiff's counsel table and defendant's counsel table as they listen to the Judge's decision.

John and Linda agreed that they would each own and be awarded the items they each brought into the marriage free and clear of any claim of the other.

Each of them is awarded all right, title and interest in and to the items currently in their respective possession, free and clear of any claim of the other.

They both testified that they also agree that they will each be responsible for the credit cards they each have in their own name.

John has agreed that he will continue to take care of the health and dental insurance for Linda pursuant to the Rhode Island Health Insurance Continuation Act.

The court grants them each an absolute divorce based upon irreconcilable differences that have caused the irremediable breakdown of the marriage.

John and Linda are able to get through the remainder of the divorce by preparing the Interlocutory Decision Pending Entry of Final Judgment, presenting it to the Domestic Relations Clerk for verification, presenting it to a family court Judge for signature, then filing it in the Domestic Relations Office for Entry by the Clerk or Associate Clerk to make the Interlocutory Order Official and insure that it corresponds with the record of the court. 

John and Linda pass the 90 day waiting period and then present the Final Judgment of Divorce to the Domestic Relations Clerk to be checked for consistency with the court record, presentment to a Domestic Relations Judge for signature, and then filing with the Domestic Relations Clerk's Office for Entry and issuance of certified copies of the Final Judgment of Divorce for both parties.

As far as John and Linda are concerned, they are done and they are divorced.  The court closes its files and sends it off to the State Archives in Pawtucket, Rhode Island.

Then an issue arises.  John's company only offers single insurance for John which the company will pay the premium for, OR family coverage for John and Linda which John must pay the difference in premium for out of his pay check.

John doesn't want to pay the extra $447 per month that it costs for the family plan and he demands that Linda pay it if she wants to remain on his coverage.  Now, Linda brings their Final Judgment of Divorce to a Rhode Island Divorce and Family Law Lawyer.  Linda is advised that she is not obligated to pay the difference between the coverages and tells John that she will not pay it.

John takes the Final Judgment of Divorce to a Rhode Island Divorce Lawyer and asks about his rights.  John is dumbfounded to be told that he cannot remove Linda from the insurance plans and that it is implicit in the court's final judgment that he will continue to insure Linda at his cost, indefinitely, under the Rhode Island Health Insurance Continuation Act or until one of the provisions under the Act occurrs that no longer makes Linda eligible for coverage.

John takes Linda to court because he believes that Linda should pay her own insurance costs and because that is what he and Linda agreed upon. 

Upon their return to court, the judge reads the Final Judgment of Divorce, the Interlocutory Decision Pending Entry of Final Judgment and the transcript of the proceeding.  These documents are silent as to the agreement that John mentions.  John is ordered to continue to pay for Linda's medical and dental insurance out of his paycheck indefinitely until a disqualifying event occurs that allows the health insurers to remove Linda from the medical and dental insurance plans.  The judge also awards Linda attorney's fees of $1,000 for the needless defense of John's motion.

In the end, Linda has benefited.  However it was John who went to the consultation and John's desire to save about $1,500 for representation during his divorce has cost him $1,000 for Linda's lawyer and a payment of $447 per month indefinitely until Linda is disqualified from coverage under the Rhode Island Health Insurance Continuation Act by John's Health and Dental Insurer.  In one year along John will have paid $6,364 for attorney's fees and insurance costs.

If Linda isn't disqualified for five (5) years then John will have to pay $33,184 in insurance costs and attorney's fees.

Why do you need a Rhode Island Divorce Lawyer, John?

Assuming you paid the divorce lawyer even $1,800 . . . . he or she is likely to have saved you $31,384!

Need I say more?