Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

What is a Nominal Rhode Island Divorce Hearing?

The word "nominal" is generally defined as meaning something "small, brief or of little consequence or value."  In its root form its literal translation was akin to "in name only".   In Rhode Island Divorce proceedings you can understand a Rhode Island Nominal Hearing by thinking of it as a combination of its linguistic roots and its modern day definition.

A Nominal Hearing is a divorce hearing in which there are no "disputes" presented before the court for determination and the court is only required to make determinations regarding those issues required to be addressed as required by law in order for the judge to grant a divorce.  Since the hearing presents no disputes, it is typically very brief and usually lasts less than twenty (20 to 30) minutes.  It may be considered a hearing "in name only" because you are merely presenting to the court matters that are not in dispute and the proceeding becomes something akin to a formalization of what relief is requested by the court.

This can happen in one of two ways in which "no disputes" are presented to the court for decision so that a Nominal Divorce Hearing can be had.

1)  Both the husband and wife in the divorce agree upon every aspect of their divorce.

2)  The party filing the Rhode Island Divorce action (i.e. the Plaintiff) establishes the court's jurisdiction over the parties and the requirements of those elements required to be on the record for the court to grant the divorce; AND the non-filing party (i.e. the Defendant) does not show up for the hearing and is defaulted. Naturally since the Defendant is not present and has been defaulted, there aren't any "disputes" because a dispute requires two parties that disagree on an issue.

Note:  In a Nominal Divorce Proceeding the party filing the divorce merely asks the court for the relief he or she is seeking from the court.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)

Rhode Island Family Lawyers and Medical Provisions

There is a great concern about medical coverage today.  This is not surprising with the skyrocketing premiums  of medical insurances and increasing deductibles and co-pays.

For these reasons and many others, medical insurances and healthcare expenses should be given serious consideration when settling your Rhode Island Divorce or if you are involved in a Rhode Island Family Court matter involving the establishment of healthcare related provisions.

The Todd & Liz Story - An Illustrative Example of What Could Happen:

Todd and Liz have been living in Cumberland, Rhode Island for six (6) years.  They have been growing apart steadily since the day they got married and have three (3) minor children.  They mutually decide to get a divorce.  They are amicable and civil about it and come to an agreement that addresses splitting their assets, and debts, and also provides for their children's needs. 

In their Rhode Island Divorce both Todd and Liz each had their own attorneys and were pleased with the representation they received. When the divorce was finalized, Todd was awarded placement of the minor children by agreement because he has a good, longstanding income to support himself and the children and Liz felt it was best for Todd to buy out her share of the house to allow their children to remain stable by staying in their existing home.  They both felt the divorce would be hard enough for the children.

Several years later two of the children visit with their mother and they have braces.  Liz wasn't consulted by Todd about the braces, who would provide them, why they needed them or what it might cost.  Todd tells Liz she has to pay him $4,000 for 1/2 the cost of the braces. Liz isn't given a bill and is surprised that she has to pay for braces and wasn't even consulted about them.  Liz looks at her Final Judgment of Divorce. 

Paragraph 6 reads,

Husband and wife shall each be responsible for one-half of all costs for the medical and dental expenses of the minor children.

Liz does not find anything else in her Final Judgment stating that she has to pay for one-half of any orthodontic expenses. 

Liz calls a local dentist and asks him if orthodontic is the same as dental.  The dentist assures her that they require different degrees and are two separate areas of medicine dealing with teeth so they shouldn't be considered the same.  Liz has a boyfriend Tom who is concerned because Liz is so upset.  Tom has dental insurance and calls Blue Cross Dental to see if it covered braces.  Blue Cross confirms for Tom that dental coverage does not cover orthodontia because it is not considered a dental expense.  Tom decides to call Delta Dental of Rhode Island and asks them if their plan would cover children's braces. Delta Dental tells Tom that dental plans do not cover braces because orthodontia is not dental because it could not be performed by a dentist and only work performed by a dentist or dental hygenist is considered dental.

When Liz divorced Todd she said she had no problem with Paragraph 6 because she believed "dental" meant the "services performed by dentists".  Liz and Todd were divorced during a nominal proceeding in which all the terms were reached by agreement to by the parties.  Yet Liz never believed that dental included braces otherwise she would not have agreed to it.

Liz does not pay for the braces and Todd takes her to court by filing a Motion to Adjudge in Willful Contempt asking that she pay the entire bill in full plus other medical expenses that Liz is unaware of. 

The matter goes to a hearing before the court.  The court does not find Liz in Willful Contempt but orders Todd to produce the bills for the braces and the medical expenses as well as the payments he made on them.  The judge also orders Liz to pay 1/2 of the braces and medical expenses that Todd can produce the bills and proof that he paid the bills for the minor children.

The court makes a finding that in Paragraph 6 Liz was ordered to pay one-half of dental expenses for the minor children and that braces and orthodontia fall are "dental" and though she is not in contempt because she did not realize it, she is being ordered to pay it because it falls within the court's order in Paragraph 6.

The Lesson

It is important to realize the significance of medical provisions. This entire example revolved around one word, namely "dental."    Be specific on your medical provisions.  It could cost you thousands of dollars in  payments, costs, interest, attorneys' fees and an award of fees to opposing counsel if the court believes your defense to the payments was unreasonable.

Questions

1)  How important would it be for Liz to know that she might not be ordered to pay these amounts (over $4,000) if Paragraph 6 of her Final Judgment Divorce ended with ", except orthodontia"?

2)  How important would it be to you if you were in the same situation?

3)  Would it make any difference to you if you knew that the Rhode Island Family court judge in the courtroom across the hall had addressed the same issue and ruled that "dental" and "orthodontia" are separate from one another and that braces didn't have to be paid where the word "dental" was used in the Final Judgment of Divorce?

4)  Would you be upset at your attorney for not making the agreement clearer?

5)  Would you be upset at your attorney if you knew that what happened in Question #3 was true? 

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)

The Rhode Island Divorce Attorney - On Hidden Income!

As most people know, Rhode Island Child Support is based on the gross income of the parents of the child(ren) who are entitled to the support.  What is often not clear about child support is that there are any number of parents who would rather avoid paying their allotted share of child support. 

A parent can attempt to do this in any number of ways by hiding their income.  One way a parent may attempt to do this is to hide income in a corporation or some other such entity like a Limited Liability Company.

Naturally, if the parent is able to conceal their true income or a sufficient amount of their income, then the Rhode Island Child Support Guidelines calculation will be tainted and that parent will not be ordered to pay their appropriate amount of child support because the total child support the child(ren) are entitled to will not be correctly calculated and of course this means the parent will not be paying the appropriate percentage the children are entitled to receive.

There are several things you might want to look into to get at the parent's income.

1. Obtain the personal and, if applicable, the business tax returns.
2. Obtain the personal and, if applicable, the business banking records.
3. Obtain any supporting documentation, receipts, invoices and bills that backup the personal and/or business tax returns of the parent trying to hide the income, especially documents relating to any deductions taken by the parent since deductions are the most likely location where income will be hidden by the parent.

There are several ways you could get at these records.  Some may be more effective than others.
To obtain the records you might try the following:

1. Send a Request for Production of Documents to the parent attempting to hide the income which specifically requests the documents noted above.
2. Send Interrogatories (Questions to be Answered Under Oath) to that same parent.
3. Send a Request for Admissions to the parent, attach any documents that you have that you want the parent to admit the genuineness of, and include any facts that you want the parents to admit to.
4. Have a Subpoena Duces Tecum (Attendance with Requested Documents) issued by a Notary Public directed to the parent and requesting that the parent produce the requested records in court.  In this instance you would want to request everything from the parent listed above for a reasonable period of time.
5. Have a Subpoena Duces Tecum (Attendance with Requested Documents) issued by a Notary Public directed to the parents tax preparer requesting that the tax preparer produce his or her entire file including receipts and backup relating to personal and the business tax returns.

Keep in mind that getting business records will be more difficult than obtaining personal records, especially if the records relate to a corporation since the court will have a propensity to protect the records of a business entity and consider it as a separate issue entirely and therefore irrelevant to the individual parent's income.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)

How to Draft a Rhode Island Family Court Motion.

Preparing a Motion in a Rhode Island Divorce is simply a matter of following a general formula of elements that the court and the judge will be looking for so that it can be recognized as a motion, identified with the correct case, notify everyone as to what you are seeking and why and let the court judge know that the opposing party has had property notice.

1.  The first element is a basic header.  It includes the name of the  state, the county, and the court in which the matter is pending.  In the family court for Providence Family Court the typical header would appear at the top of your motion and would look like the following:

STATE OF RHODE ISLAND                                                                                   FAMILY COURT
PROVIDENCE, S.C.

Note that the header is in all CAPITAL letters with the state and county flush with the left margin and the name of the court flush with the right hand column.  The S.C. after the county name stands for Sheriff's County.  In some instances you may see S.S. or SS. used which is the older colloquialism for Sheriff's Shire.

2.  The second element that appears under the basic header is the case caption.  The case caption contains the names of the plaintiff above the name of the defendant as well as the case number assigned by the court.  The case caption would appear as follows:

JOHNATHAN SMITH

VS.                                                                             CASE NO. P08-0086                                                                

MARY SMITH

Note that typically the case number is placed from the center typing toward the right margin.

3.  The third and simplest element is the title of the motion which is typed in all CAPITAL letters, centered and often underlined.  For instance, a motion for modification of child support would appear as follows:

                                             

MOTION TO MODIFY CHILD SUPPORT

4.   The fourth element of a Rhode Island Divorce or Family Court motion is the body of the motion which includes your request for relief and the basic reason(s) why the relief should be granted.  The typical body of this motion may be in standard type and paragraph form as follows:

        Now Comes the Plaintiff, Johnathan Smith and moves this Court for an Order modifying his child support obligation in this matter.

        In support of this motion the Plaintiff states that there has been a substantial change in circumstances and/or incomes of the parties since the last time the child support obligation was set.

5.  The fifth element is the closing of the motion which contains the parties name and either the name, address and telephone number of the party or the party's attorney.  It also contains the hearing date for the motion which would be obtained from the clerk of the judge who would be hearing the motion.  It would appear as follows if Johnathan represented himself (Pro Se)

                            JOHNATHAN SMITH
                            PRO SE

                                  ________________________

Johnathan Smith         
15 Mantel Avenue
Coventry, RI 02819
(401) 467-2392

6.  The last element is the certification.  If this is an initial motion and the case has been either closed or inactive (without a pending court date scheduled) then you will have to create summonses and have your spouse served as required by law.   This is a topic beyond this short article posting.   However, what I am referring to here is when a case is active and there is a pending court date in the case that you are filing the motion in, then you must provide a certification that tells the court that you served the opposing party by mail (or more appropriately their attorney if they are represented by one).  It appears below the closing and looks like the following and must be signed by the person doing the mailing (i.e. making the service):

CERTIFICATION

     I certify that on April 15, 2008 I served a copy of this motion by first-class mail upon Mary Smith at 88 Dupont Lane, Providence, RI  02903

                                        _______________________________

For those who must represent themselves in family court it is my hope that this tutorial on motion drafting has been helpful and that the formatting tools used to create this article have not made it appear too disjointed.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)

Divorce Attorney Christopher Pearsall on Family Court Subpoenas

Presumably a subpoena holds just as much power in the Rhode Island Family Court as it does in the Rhode Island Superior Court.  However after eight (8) years in practice I have learned that there are differences in the power of a subpoena in the Family Court system.

First, however, let me be clear that the difference in the amount of power a subpoena has or may appear to have in any given legal proceeding has nothing to do with the Rhode Island General Laws or the Rhode Island Procedural rules for Superior Court or Domestic Relations matters.

That being said, the power of the subpoena is diminished because of the weight it is given in each of these forums. 

In the Rhode Island Superior Court the superior court judges appear to give more weight and seriousness to subpoenas than those judges in the Rhode Island Family Court System.  By and large the vast majority of subpoenas that I have seen issued in the Rhode Island Superior Court were taken seriously and enforced by the judge presiding over the case.

In Rhode Island Family Court cases, however, subpoenas and subpoenas duces tecum are treated lightly and have readily become the targets of Motions to Quash, despite the fact that the information requested is reasonable, relevant and even necessary to the case of the issuer.

What litigants should perhaps be most aware of is that the Family Court Justice may take little or no action against a party who has been subpoenaed to court to bring documents, particularly banks, financial establishments, and professionals who may be considered experts.

The moral of this article is that the subpoena is often seen by clients as a "sure thing" to get the information they need to prove their case.  In Family Court it most certainly is NOT a sure thing. Keep this in mind if your own attorney is stonewalled either by the court or the opposing counsel.  Even though there are procedural and statutory provisions governing subpoenas and their consequences, your attorney is limited to being your advocate.  Once your attorney advocates for your position regarding the subpoena issued on your behalf, he or she thereafter may remain powerless.

In the end, a subpoena's enforcement falls upon the justice who sits upon the bench.  If the Justice fails or refuses to enforce the subpoena, your attorney is powerless to do anything further other than to protect your interests for appeal.

Authored by:

Christopher A. Pearsall, Esquire
PEARSALL LAW ASSOCIATES
571 Pontiac Avenue
Cranston, RI  02910
Phone:  (401) 354-2369

Attorney Pearsall's practice is focused almost exclusively in the areas of Divorce and Family law.

CALL (401) 354-2369 now to schedule for your low-cost, no obligation legal consultation!

NOTE:  The postings on this website are NOT legal advice, DO NOT create an attorney/client relationship and are NOT a substitute for a detailed consultation with an attorney experienced in the state where you have your legal issue.  This site is based on Rhode Island and is presented for the convenience of the internet public.

* The Rhode Island Supreme Court licenses all lawyers in the general practice of law and has no procedure for recognition of specialty in any area of law.

Copyright 2008 - Christopher A. Pearsall and Pearsall Law Associates (All Rights Reserved.)