Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

Rhode Island Divorce Lawyer's Tip on Gifts

Gifts from third parties to either of the parties in a Rhode Island Marriage during a divorce are normally not considered marital assets unless they are given to both the husband and the wife equally.

However, gifts between spouses are marital assets and are subject to the court's power of equitable division between the parties.

Therefore, if a husband gives his wife diamond earrings valued at $10,000 at Christmas time then at the time of the divorce the wife should expect that the earrings will be considered a marital asset subject to division by the court.  Thus the court will determine who should get the earrings or what should be done with them (i.e. such as sale of the earrings and a division of the proceeds).

Rule of Thumb: 

Gifts from third parties are usually outside the scope of the court's power of equitable distribution.  Gifts between spouses are usually marital assets and subject to the court's power of equitable distribution.

Authored by:

Christopher A. Pearsall, Attorney-at-Law
PEARSALL LAW ASSOCIATES
70 Dogwood Drive, Suite 304
West Warwick, RI  02893

Rhode Island's Most Affordable Divorce and Family Law Lawyer

Call Chris at (401) 632-6976 for Your Low-Cost Consultation

© 2008 Attorney Christopher A. Pearsall, Rhode Island's Most Affordable Divorce Lawyer

Rhode Island Divorce Lawyers - Young Children and Evidence!

Imagine that you have a divorce that is pending before the Rhode Island family courts.  Your children are visiting with their father and you find out from the children that your children have been in the presence of a third-party female that you aren't familiar with.  You don't know anything else other than what your children have told you that a woman has been around with their father from time to time.  There is no indication that this woman is over frequently but the children seem to like her and you are concerned that the children are being exposed to an improper influence.

You contact your lawyer and want to go before the family court to stop the exposure of your children to this woman because you think that it is a new girlfriend that your husband has.  Your lawyer is hesitant but files a motion to restrain and enjoin your husband from having the children in the presence of any woman who is not related to either of the parties.

Your attorney goes into court and the judge asks your attorney what evidence, if any, that has been obtained in support of the motion to restrain this father from having the children around ANY third-party female.  Your attorney mentions that he minor children have been telling their mother that this woman is around them when they have visitation with their father.  The judge asks if their is anything else.  The attorney answers "No".   The judge denies the motion.  The mother of the children is furious that the judge denied the motion when he or she was given the information.

The mother's attorney tries to explain the technicalities regarding the rules of evidence but she doesn't want to hear it.  The mother believes her children are telling her the truth and they have no reason to lie.  The attorney explains that minor children are not allowed to testify before the court due to their age and because they may be counseled by one or the other parent to provide an altered representation of the events.  The attorney also explains that children are not considered a reasonably reliable source of information before the court, especially when it comes to restraining an adult from his right to be around other people.  The mother is not happy and doesn't understand.

Evidence must be relevant to the subject matter of the case.  Evidence also must be presented under oath by a person capable of understanding the court's oath and the consequences of disobedience of that oath.  Evidence also must be reliable and cannot be hearsay or must be an exception to the hearsay rules of evidence.  Children do not fall within the standard of reliability necessary to satisfy a court proceeding in order to make a valid decision.  Children also do not have sufficient appreciation of what it means to take an oath and what the consequences may be if they do not tell the truth.

At best, the information from a child is very often only information that a parent can used to follow up on in order to verify or disprove what the child has said.

Young children and their statements are not normally considered evidence before the court, though the court has discretion to consider whether the child may be considered reliable and whether the child is old enough to appreciate the significance of the oath he or she must take.

In the end, it is best not to rely upon statements of minor children to win any hearing in family court.  Develop the information and be able to testify to it personally yourself and your are in a better position to prove your case.

Authored By:

  Christopher A. Pearsall
Money Making Entrepreneur and Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, Internet Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys |
Rhode Island Divorce Lawyers 

Can my RI Divorce Lawyer Save My House?

RI Divorce Lawyer 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)

RI Divorce Lawyers 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.

Authored By:

  Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, A New Rhode Island Divorce Lawyer for a New Millenium

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers |  

Rhode Island Divorce Lawyers Tip: Divorce History a Help!

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 its 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!

Authored By:

  Christopher A. Pearsall
RI Divorce and Family Lawyer
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, A New Rhode Island Divorce Lawyer for a New Millenium

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers |  

Uncontested RI Divorces - Does One Size Fit All?

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!

Authored By:

  Christopher A. Pearsall
Attorney-at-Law
70 Dogwood Drive, Suite 304
West Warwick, RI 02893

Call (401) 632-6976 Now for your low-cost consultation.
from
Rhode Island's Most Affordable Divorce & Family Law* Attorney
now
100% Digital and Virtual!

Copyright 2008.  Christopher A. Pearsall, Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers | TheModernMom.com| WholesaleQuiltBatting.com | Mesothelioma-Cancer-Articles.com