Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

Two Benefits to Having a Marital Settlement Agreement by RI Divorce Attorney Christopher Pearsall

If you had the choice of having an easy uncontested Rhode Island divorce and a difficult mess of a divorce, which would you choose?

I would like to think that you would choose an easy uncontested Rhode Island Divorce because I prefer to think that as a reader of this blog you have a lot of common sense and you would rather see things go smoothly instead of roughly.

There are two benefits that divorcing spouses should be aware of on a practical level.

If you don't understand what a Rhode Island Marital Settlement Agreement is, then here it is in a nutshell.

Rhode Island Marital Settlement Agreement (MSA) 

A Marital Settlement Agreement (MSA) is a written contract which is entered into and signed by both parties and contains all the items you and your spouse agree upon regarding the manner in which you are going to dispose of your marital estate (your marital assets and debts) and usually includes all the specific agreements you and your spouse have made to provide for your Minor Children.

A successfully drafted Marital Settlement Agreement that is signed and executed by both spouses to a divorce creates two specific benefits for the spouses.

First, a well-drafted Marital Settlement Agreement allows the attorneys to quickly authenticate the MSA by the testimony of the spouses and ask that the court accept it and approve it as a full exhibit.  

Assuming this is successful, the MSA eliminates the need for the judge to hear countless pages of details and conditions about all the assets, debts and considerations for the children, except those provisions in the Marital Settlement Agreement that are required to be placed on the record of the family court because they relate directly to the well-being of the Minor Children, Healthcare directives of the parties, and provisions regarding Alimony.  This, of course, saves the spouses considerable time on the witness stand and makes the proceeding flow much more quickly.

Second, many experienced Rhode Island Divorce Attorneys charge different rates for time spent preparing for a case and time spent "in court."  Time spent "in court" is usually more expensive.  Therefore, the shorter your uncontested hearing, the less money you will spend on the actual proceeding simply because you used a Marital Settlement Agreement.

Other benefits will be discussed in subsequent articles, including problematic issues and how they might best be addressed.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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RI Child Support Modification - A Benefit to Representing Yourself!

Many Rhode Island Family Court Judges have repeated the old maxim that "a person who represents himself in a legal proceeding has a fool for a client."

In fact, I've heard it myself in the Rhode Island Superior Courts as well.

Yet I've also heard several Rhode Island family court judges state something to the contrary when someone does, in fact, come into court with an attorney during a child support hearing.

Consider this brief example:

Myron had very specialized skills relating to the operation of a rare wrapping machine used in the packaging industry.  Myron worked for the same company for many years and therefore he earned a decent wage because there were very few people who could operate this particular machine.
Myron had two children that he paid his Rhode Island child support for religiously when he was suddenly laid off and his company filed for bankruptcy and dissolution. 

Myron looked for work in a downed economy while he continued to pay his child support.  When it finally became necessary Myron cashed in his 401k and paid huge penalties and interest on the distribution.  He set aside monies to survive on for a few months and pay his child support and to pay his rent.  He kept a small amount to see a lawyer and determine what he should do.  Ultimately he had just enough money to pay the lawyer to file a Motion to Modify his Child Support and to attend one hearing to argue on his behalf.

During all the time Myron kept his ex-wife apprised of what was going on.  His ex-wife was not happy.  She was used to receiving several hundred dollars in child support for their children and she had based their standard of living upon the continuance of that support.  She did not want those monies to stop coming in.

Myron continued to seriously look for work in Rhode Island's downed economy and branched out his search to Massachusetts and Connecticut when his search proved fruitless just in Rhode Island.  Myron applied at countless Temporary Agencies, construction companies, production facilities, etc . . . but had no luck.  The fact was was Myron's skill was so specialized to that one machine and area of the industry that he had no other skills to fall back on to generate the kind of income that had been used to pay his child support in the past.

Myron was still on unemployment when he went to the hearing to modify his child support.  Myron testified to his circumstances and his countless attempts to obtain employment.  Myron's ex-wife hired an an attorney who opposed the reduction and testified to the court that it didn't make sense that Myron could go from making a five figure income each year to remaining on unemployment for three whole months.  Myron's Rhode Island attorney did an excellent job explaining why this was the case.

Finally it came time for the decision on the Motion to Modify.  The motion was denied by the judge who agreed with the ex-wife's argument even though Myron had explained the circumstances and had proof of all his applications for employment on a daily basis. 

In the end on thing stood out.  The court ordered Myron to quickly find a job making approximately what he had been making before.  The court had unilaterally assigned this as Myron's "earning capacity" though no motion for such an assignment had been pending.

Myron finally stood up in frustration and spoke at this point, "Your Honor, but this isn't fair. It just can't be done.  I've been trying for 3 months every day.  I want to work, but I just won't be hired at my former wage by any company around here.  My work was just too specialized."

The Rhode Island family court judge responded:

"Sir, you had better find that job or the next time you will be before me on a contempt hearing for not paying your child support.  And frankly, if you can find some way to afford to come in here to argue your motion with a lawyer, then you can find someone who will hire you at your former wage.  It's that simple."

The hearing ended and Myron was understandably more discouraged than before.  Myron's ex-wife gleefully passed him in the hallway as if she had won a huge triumph and headed out the courtroom doors.

The question of this example is simple. 

Would Myron have done better if he hadn't hired a Rhode Island family lawyer to help him?  Or would Myron have been told he had a fool for a client and lost the hearing just the same?

I've seen a scenario similar to this on more than one occasion.  Ultimately it seems as though having a lawyer in most cases was used by the Rhode Island Family Court Judge as a basis for denying the parent's Motion to Modify.  In the vast majority of cases, that parent was a man.

In one case, a man's mother, who was in her 80's was able to get enough money together to pay for an attorney to go to one hearing for her son.  Remarkably, the result was almost identical to Myron's case.  The man was faulted for having an attorney but not having a job.

When Rhode Island child support is an issue and a spouse has lost a job that has very specialized knowledge and despite substantial effort the income the spouse was making has not been able to be replaced by a new job making the same or a similar amount of money, it may be best to go into family court on your Motion to Modify without an attorney.  It is indeed sad that the court might use the presence of an attorney as a stated reason to deny such a motion when at other times the court will turn around and fault a parent for not having an attorney and tell him (or her) that they have a fool for a client.

Rhode Island Child Support modification is the one area where it may sometimes be better to represent yourself rather than to hire a lawyer or even get a lawyer to help you "pro bono" (without a fee).

Remember, the court has no idea if you, or your mother paid for the lawyer or if the lawyer is representing you out of the kindness of his or her heart.  Yet the Rhode Island Family Court Judge may use it as a basis to put you in a no win situation.

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

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Rhode Island Child Support Modification Issues

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

EXAMPLE

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 who 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.

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

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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No College Responsibilities Except When . . .

Under Rhode Island law, parents are not responsible for paying for college or expenses related to college.  There are a few exceptions that as a Rhode Island Divorce Lawyer I've seen Rhode Island Family court judges address.

Generally speaking the statement above is true.  Parents are not held responsible for paying for college expenses.  This is true, provided that normally accepted situations exist. 

For instance, most "children" do not take college courses before their 18th birthday and many, even before their 19th birthday. 

Under Rhode Island Law, child support obligations may be required by parents until a child is 18 and has graduated from high school or until the child has reached the age of 19 at the latest, provided the child is not a special needs child.  Child Support provides for child care expenses which may or may not, in the discretion of the judge include educational expenses.  Consider this example which is not that unusual.

EXAMPLE #1  - Your Child is Advanced

Terri and John have a daughter, Samantha and are divorced.  Samantha is exceptionally bright and finished high school at age 17 and was accepted to college early.  Terri takes John back to court to have him pay for part of Samantha's college expenses.  John hires a Rhode Island general law practitioner who advises him that he is not required to pay for his daughter's college expenses.  In the Final Judgment of Divorce John was ordered to pay for half of Samantha's tuition, books and extra-curricular activities until she was no longer eligible for child support.

At the time of the hearing John expects that he will not be ordered to pay anything toward Samantha's college expenses especially since Samantha's private high school tuition was about 1/5th the cost of Samantha's college tuition and he never anticipated Samantha would go to college early. 

However, after the hearing the judge sees things otherwise.   Since Samantha is still a minor
she is still entitled to child support and the support of her father.  Since the court's order didn't specifically exclude college expenses, then the judge finds that they are still included until Samantha is no longer eligible for child support.

EXAMPLE #2 - You Agreed to It

Claire and Tim get divorced and have a Marital Settlement Agreement.  Both parties had an attorney and both parties wanted to get the divorce done as quickly as possible so the Marital Settlement Agreement was a little rushed though each party had the opportunity to read all the provisions and discuss it with his or her lawyer.

Claire and Tim have a son, James.  James enters college and Claire contributes as much as she can to his college education and approaches Tim about his contribution.  Tim is surprised and tells Claire that he can't afford to contribute to college for James because he is just about to close on a new house.  Claire consults a lawyer who tells Claire that Tim has to contribute whether he likes it or not because he agreed to it in the Marital Settlement Agreement.

Tim consults an attorney who informs him that it doesn't matter what is in the Marital Settlement Agreement because the family court lacks the legal authority to make a father pay for college costs.

At the hearing Claire's attorney argues that Tim agreed to it in a provision of their Marital Settlement Agreement and Tim's attorney argues that the family court lacks the power to force Tim to pay for college costs and therefore the provision of the Marital Settlement Agreement is not binding.

The judge takes a straightforward and common sense position to the argument.  The judge agrees that the family court does not have the power to force a parent to pay for college costs for a child who is not a special needs child and is emancipated.  However, the judge finds that according to the Rhode Island Statutes the family court is empowered to enforce agreements made between the parties as a results of divorce and that the terms of such agreements may reach beyond what the family court may order because parties are free to contract to whatever terms they see fit as long as the court does not find them to be inequitable.

Therefore, the judge finds that the Marital Settlement Agreement is enforceable as a separate and binding contract and Orders Tim to pay half of the expenses as he agreed to do in the Marital Settlement Agreement.

   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, Internet Entrepreneur and Attorney-at-Law

*The Rhode Island Supreme Court licenses all attorneys in the general practice of law.
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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.

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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.)