Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

Do you have Proof of your Spouse's Affair for the RI Family Court in your Rhode Island Divorce?

I meet with prospective Rhode Island divorce clients almost monthly who tell me they have positive proof that their spouse has had an affair.  Naturally, I listen to what the client and/or prospective client has to say about the alleged affair and consider what the person has to say and present as their proof.  

Honestly, most people don't have the "proof" they believe they have.  This is not because they don't have "something" which gives them the indication that an affair has taken place.  It is simply that what the person has as their "proof" either isn't "evidence" that the court would consider or it is something that it would be very circumstantial if it were accepted as evidence by the Rhode Island Family Court at all.

The hot topic that comes up nationwide these days has to do with using electronic documents as evidence.  What I'm referring to is emails, texts, phone bill records, or internet page printouts such as those you might find from Facebook account pages.

Consider this example:

Bill:  Hello, May I speak with Attorney Pearsall?

Attorney Pearsall:  Speaking.  How may I help you?

Bill:  My name is William but I go by "Bill"

Attorney Pearsall:  Okay Bill it is!  What can I do for you Bill?

Bill:  I already hired a lawyer for a divorce in Kent County Family Court but I don't agree with what she's telling me.

Attorney Pearsall:  Okay...?

Bill:  Well, I need a second opinion on several things that she is telling me.

Attorney Pearsall:  Okay Bill, I will be happy to do that but I only provide legal advice in the context of a Divorce Coaching and Advice Session.  Remember, divorce and family law is what I do for my living. 

Bill:  I can understand that.  Okay, I've read your articles and I'd like to do that right now if you have time . . 

[ Bill and I talk and Bill makes arrangements for an immediate Divorce Coaching and Advice Session with an affordable payment via phone.]

Attorney Pearsall:  Okay Bill, now let's get to the important part.  Tell me what has you concerned.

Bill:  Well, I want to file for divorce based upon adultery.  I have all the proof that my wife cheated on me.  But my lawyer wants me to file based on irreconcilable differences.  She says that it's not a good idea to file based on adultery and I don't have the right proof.  She just keeps saying the same thing to me but she doesn't explain it.  Can I tell you what I have and you can tell me why it's not a good idea or why I don't have the "right proof?"

Attorney Pearsall:  Sure Bill.  Tell me what happened and what proof you have.

Bill:  Well we've been married four (4) years.  After two years our marriage really wasn't working.  All of a sudden she wanted to have kids but we had discusssed before we got married that neither of us really wanted kids.  It wasn't until after she started babysitting my sister's kid that all of a sudden she wanted kids.  

To make a long story short, we started arguing alot about having kids.  She told me about a year ago that she wanted a divorce but she never did anything to file for divorce.

Anyway, about two months ago I went to the computer and it was still logged into her email.  I saw the email that was on the screen and it talked about meeting some guy again and how their first night together was magical.  So whether it was right or not, I looked through her email and found out that she had been meeting some guy she met on Facebook and that they planned to meet twice at the local Holiday Inn.  

So, I printed out all her emails.  Chris, they show a pattern of how she planned to meet with this guy at Holiday Inn.  I remember that my wife didn't come home on those nights.  She had told me that she was going to spend the night at her mom's house because her brother was going to be back in town and she wanted to see him but he might not get there until very late.  Later I found out that her brother wasn't anywhere around here.  Her brother was actually on vacation in Arizona.

To make a long story short, I confronted Brenda about it.

Attorney Pearsall:  Is that your wife's name?

Bill:  Oh, Sorry. Yes, Brenda is my wife.

[ Pause ]

Bill:  Brenda just yelled and yelled about how I invaded her privacy.  The next day while I was at work she moved out of our apartment and she left me a note on the counter saying she wants a divorce.

So I hired a divorce lawyer and I wanted to file for divorce based on adultery.  I told my attorney everything I just told you and gave her copies of the emails I printed out as well as the note Brenda left on the counter.

[ Bill was quiet. ]

Attorney Pearsall:  So your present attorney has essentially told you that filing for adultery doesn't make sense and that you don't have the proof you need for the adultery in your case, is that about right?

Bill:  Yeah, that's about right.  It doesn't make sense.  It's an open and shut case with these emails I have.  Am I right?  Or is my attorney just afraid to file for divorce based on adultery or what?

Attorney Pearsall:  Bill, since I'm not in the mind of your attorney I can't tell you exactly what she's thinking but as a Rhode Island lawyer I would probably come to the same conclusion.  Let me explain why so you don't seem so frustrated.

First, many people don't understand what it means to choose the grounds for their divorce.  Why did you want to file based specifically upon "adultery" Bill?

Bill:  Well, it just makes sense.  She cheated on me.  That's adultery, isn't it?  So that's the right one to choose.  I just chose the right one because that's what happened to me.

Attorney Pearsall:  And Bill, I'm sure that makes perfect sense to you.  Now, did your present attorney explain to you why it was not a good idea to use that one?

Bill:  No.  She just said it was not the right one to use and that I didn't have the proof.

Attorney Pearsall:  Okay, now just bear with me here a minute Bill.  I think the difficulty here is that your divorce attorney didn't explain things to you.

Now, answer this question for me.  Do you want a divorce from your wife?  I mean, is there any hope here.

Bill:  No Chris.  I'm done.  I made a mistake and our marriage just isn't ever going to work out.

Attorney Pearsall:  Okay Bill.  Now when you go to court do you want your divorce to be easier or harder for you?

Bill:  [Pausing..a bit confused.]  I want it to go easier of course.  I mean I don't want this long and drawn out or anything.

Attorney Pearsall:  That makes perfect sense.  Do you think it would be an easier and shorter case if when you and your attorney present your case to the judge it was an open and shut case or if the judge had a harder time deciding the case.

Bill:  That's common sense Chris.  If the judge can see everything clearly and it's a no-brainer then I'm going to have an easier case.

Attorney Pearsall:  Then you probably know that the judge has to have evidence that is pretty clear for it to be a no-brainer and make it easy on you, right?

Bill:  I agree with you but I don't get your point.

Attorney Pearsall:  That's okay Bill.  I'll explain that right now.

When you file a divorce based upon "adultery", you are making your case harder for the judge, for your attorney and for you because it is based on the fault of one party in the divorce.  In order to get your divorce granted based on the adultery that you want to use, you and your attorney have to prove that your spouse committed adultery for the judge.  

That proof has to be pretty solid Bill.  Sometimes circumstantial evidence like those emails just doesn't do it.  In fact, sometimes your wife's attorney can get them thrown out because you can't prove they are authentic to the court.  Remember, you believe they are authentic but your attorney has to prove it under the Rhode Island Rules of Evidence before the judge can accept those emails.

Bill:  But it's clear Chris.  It's a no-brainer.

Attorney Pearsall:  I'm not going to sugar coat this for you Bill.  You paid me for good legal advice and I need to give it to you even if it's not what you want to hear.  You didn't call me so I could lie to you, did you?

Bill:  [Sighing . . .] No Chris.  Go ahead and tell me.  I want to know the truth.

Attorney Pearsall:  Great.  Bill, the truth is that the Rhode Island Family Court Judges know that today it's easy for a person to print up fake emails.  Let me ask you, do you have your wife's password to her email account?

Bill:  Yes, but what does that have to do with anything?  I found my wife's emails by accident, not because I invaded her privacy.  If her email account hadn't been open and left on the screen I never would have gone found them or printed them.

Attorney Pearsall:  Let's not get off track Bill.  Just follow me.  So you're telling me you have your wife's email password, right?  

Bill:  Yes.

Attorney Pearsall:  So do you know how to create a free email account anywhere on the internet?

Bill:  Sure.  I have one myself at Yahoo.com

Attorney Pearsall:  Now this guy you think your wife had an affair with, what did his email address end in.

Bill:  It was one at Gmail.  You know, @gmail.com.

Attorney Pearsall:  Now you can get a free gmail address can't you?

Bill:  Yes?  So what.  [. . a bit of frustration in his voice . . ]

Attorney Pearsall:  So if you really wanted to you could create a free gmail address and then get into your wife's account and send emails back and forth to yourself and make it sound in those emails like an affair was going on, couldn't you!

Bill:  I suppose so.

Attorney Pearsall:  Are you any good with computers Bill?

Bill:  Pretty good, yes.

Attorney Pearsall:  Do you think you could create some phony emails on paper that look like the ones you printed out if you really wanted to?

Bill:  Yeah, if I took some time I'm sure I could do it.

Attorney Pearsall:  Okay.  Now have you ever heard of anyone hacking into an email account and sending emails to someone as if they were someone else?

Bill:  I've received a few.  Then my friends would call me and tell me "I didn't send that Bill.  Someone got into my damn email account."

Attorney Pearsall:  Okay, good enough.

Bill:  Chris where are you going with all this?  I didn't do any of those things and I'm not the kind of person who would do that.

Attorney Pearsall:  That's what you're telling me Bill.  Just like you might tell a judge, right?

Bill:  I suppose so.

Attorney Pearsall:  But the fact is the judge has to be convinced under the RI Rules of Evidence that what you are presenting is not hearsay or gives the judge some reason to let the judge consider it.  One of the biggest factors is whether or not it is believable or not based upon whether you can authenticate the email.  Well, what can you really assure the court of here?

Let's see, you can tell the court that you printed a document that was on your computer screen.  But for the rest of them you went into an open account that you think was your wife's account.  So you didn't send the emails, you didn't receive the emails, you didn't type any of those emails, you didn't see those emails being typed by the sender or the recipient, you didn't see any particular person send or receive those emails or read them, and your wife didn't admit she sent or received them, did she?

Bill:  Yes, that's all correct.

Attorney Pearsall:  You know your wife's password and you know how to create a free account. You've heard that email accounts can be hacked into and that phony emails have been sent.  In fact you even said you could probably create phony emails that would look pretty close to the ones you printed out.  

Now imagine the judge sitting on the bench thinking about all this.  How is the court supposed to believe that the emails are genuine or know who sent them or who received them?  You see the court isn't supposed to jump to conclusions on these things.  They need these kinds of proof so they are at least reasonably sure the emails are genuine, who they came from, who they were sent to, where and when.

Bill:  Okay, I get it.  So how is the court supposed to believe that these emails are real, right?

Attorney Pearsall:  Exactly.  So that may be why your attorney is saying that what you have really isn't proof of the affair.  You'd have to have more than that.  It's not absolutely necessary to see the two people in the middle of intercourse.   Strong circumstancial evidence may be enough.  For instance, if you waited outside a motel and first saw your wife check into a room.  You kept watching that room's door and you see a man go in a little bit later.  Then you stay up all night without falling asleep and you watched the door and no one came out until early morning when you see your wife come out in the morning buttoning her blouse. Now THAT you can testify about as evidence.  If you are able to subpoena the motel owner and his or her log book showing that your wife signed into the log book at the time and on the date you testify she was there, then that would be stronger circumstancial evidence.

Bill:  So that's it.  I just need to have more evidence like that.  That's all there is to it?

Attorney Pearsall:  That's only one peice of the puzzle Bill.  You and your attorney have to be able to prove that your wife's affair with this guy was the actual cause of the breakdown of your marriage because you selected "adultery" as your grounds for divorce.

Bill:  Oh.

Attorney Pearsall:  Do you see the problem Bill?  You said yourself that the marriage wasn't working after two years and that you two had a huge problem fighting in your marriage because she changed her mind about wanting to have children.  It was only about a year ago that she told you that she wanted a divorce.  That's what you told me.

Bill:  Yes.

Attorney Pearsall:  And did you tell these same things to the attorney you have now?

Bill:  Yeah, I did.

Attorney Pearsall:  So you see, it's not really a no-brainer.  In fact, unless you were to lie to the court then even if your wife did have an affair, that wasn't the cause of the breakdown of your marriage.  If the court heard these things as they should, the court would likely to conclude just like I have that your marriage had already broken down a year or so before, it was just a matter of who was going to file for divorce and when.  Add that to all the problems with the emails and it isn't the right grounds to use for your divorce and you really don't have the proof you need.

Bill:  Okay, I understand now but why couldn't my divorce attorney just tell me that.

Attorney Pearsall:  Well, you just paid me to explain it to you, right?  So if your divorce lawyer had to explain this to you she would most likely have had to bill you for it.  Since she's the lawyer maybe she just expected that since you hired her that it was better if you just trusted her professional expertise and saved some money.

Bill:  But she must have seen how frustrated I was by this.  If she had to bill me then at least I would have understood and I wouldn't have had to come to you to understand these things and question whether she knew what the heck she was doing.

Attorney Pearsall:  I understand Bill.  But let me ask you this, did you save money by coming to me to get your questions answered?

Bill:  Well, yeah.  I saved about $125.00.  

Attorney Pearsall:  There you go Bill.  No harm, no foul.  You've got your answers and I agree with your attorney and you still saved $125.00 in legal fees.  I'm certainly not going to find any fault with your attorney at all over what we've discussed.  Is there anything more I can answer for you.  I could give you a few more minutes if you like.

Bill:  No, I actually have to get going Chris but thanks for helping me to understand these things.  This was great.  I feel much better now.  I have to run.  Thanks Chris.

Attorney Pearsall:  My pleasure Bill.  I still get paid even for phone advice but I try to make it affordable.

Bill:  What you charged me was more than reasonable. Don't be surprised if I have to call you again.  

Attorney Pearsall:  I'm here when you need me Bill.

 

Today's Rhode Island Divorce Coach Quick Tip

Most things that people usually consider "proof" are often not considered "evidence" that is acceptable before the court.  It's good to remember this when addressing the court or when speaking with your Rhode Island Divorce lawyer.  Remember that what you consider "proof" may not be allowed as "evidence."

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
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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.
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RI Divorce - Is Rhode Island a NO FAULT divorce state?

How does a Rhode Island divorce lawyer who is seemingly competent make the mistake of advising clients and people in general, through writings, articles, press releases or other literature or publications that Rhode Island is a NO FAULT state when it comes to divorce? 

I've seen this on several lawyer's websites and I've seen this on generic legal sites that try to entice you to come to their sites so they can help hook you up with a legal referral service from which I can only presume they receive some kind of kickback or monetary remuneration. 

Yet for heaven's sake, should a lawyer at least get the fundamentals right!  It's no wonder lawyers have a bad name when lawyers go out of their chosen field of expertise and give answers that are incorrect simply because they don't want to lose a client or appear inept.  This becomes a stereotype that is then applied to all lawyers.

Well, let me set the record straight.  Any lawyer, whether they are licensed to practice law in Rhode Island or not, who tells you that Rhode Island is a NO FAULT state when it comes to divorce, simply does not know what they are talking about.  Frankly, if after reading this article you go ahead and hire such a lawyer then you deserve exactly what you get.

This is and should be an easy question for any Rhode Island lawyer who professes to practice before the Rhode Island family courts.  Even if it isn't know off the top of the lawyer's head, he or she should be able to look up the answer in a matter of 60 seconds.

Here's a quick lesson.  A state that is considered a NO FAULT divorce state is one in which divorces are not granted based upon the fault of either party.  In other words all grounds for divorce in that "NO FAULT" state are not based on the fault of either party.

I've heard it stated by Rhode Island lawyers and I've even seen it published by Rhode Island lawyers that Rhode Island is a NO FAULT divorce state.   WRONG!  WRONG!  WRONG!

Frankly, I don't have to tell you it's wrong at all.  The Rhode Island General Assembly that makes the laws of our state has already said it.

Though Rhode Island Family Court judges and most parties prefer divorces that are based on irreconcilable differences (which WOULD be a NO FAULT divorce) that is not the only grounds for divorce.   The following section of the Rhode Island General laws spells out the additional grounds for divorce as follows:

§ 15-5-2  Additional grounds for divorce. – Divorces from the bond of marriage shall also be decreed for the following causes:

   (1) Impotency;

   (2) Adultery;

   (3) Extreme cruelty;

   (4) Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;

   (5) Continued drunkenness;

   (6) The habitual, excessive, and intemperate use of opium, morphine, or chloral;

   (7) Neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and

   (8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.

Now, if any Rhode Island lawyer who professes to you that Rhode Island is a NO FAULT state.  Please have him or her explain to you how each of these items lacks a condition or action by either one or both parties that is not fault based.  Then, please give me a call and explain it to me.

My point is simply this.  Rhode Island is NOT a NO FAULT divorce state.  This is an easy way to determine if the lawyer you are considering engaging for your divorce matter knows what he or she is talking about or not.  If you ask the lawyer if Rhode Island is a NO FAULT divorce state and he or she says "yes" . . . then I highly recommend finding a new lawyer to interview.

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.
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Alleged "Home Wreckers" and Subpoenas - What Can They Do?

In a Rhode Island Divorce a common practice of family lawyers is to subpoena the person their client alleges is "the other woman" or "the other man" who has broken up the marriage.

EXAMPLE

Todd and Marlene have been married for ten (10) years.  Marlene didn't see the signs that Todd was extremely unhappy in their relationship.  Todd files for the divorce.  Marlene is in shock when Todd files for divorce and instantly forms the belief that there must be "another woman" because she sees no reason why Todd would file for divorce otherwise.  Marlene starts putting together a list in her mind of females that his husband knows from work, little league practice for their son, and friends of hers that have been around her husband.

Marlene hires an attorney and files a counter-claim for divorce.  Eventually Marlene narrows down her list to the one or two people she suspects had an affair with her husband.  She starts following Todd around and finds that Todd is having lunch occasionally with one of those people.  Marlene forms in her mind the belief that this woman must be "the other woman" who broke up her marriage.  Marlene is now angry at both her husband Todd and this woman.  Marlene's attorney subpoena's the woman Todd was having lunch with into court, usually around the time of the trial.

ATTORNEY TACTICS

Unfortunately this is an all too common tactic that attorneys take in a divorce matter that causes divorces, in my humble opinion, to escalate beyond control or to immediately settle a case in an inequitable manner.

Let me explain.  The "other woman" as in the example may have no basis what so ever.  The fact is, people grow apart.  The parties in a marriage are often blind to the signs of the breakdown especially if both parties do not have good communication skills with one another. 

Denial is often an initial reaction to the recognition that divorce is taking place or is on the immediate horizon.  The person being divorced does not wish to believe that he or she is unattractive, boring, unyeilding or unworthy or being loved as a spouse in the marital relationship.  That denial, if not tempered with reason, often leads to the conclusion that there must be another person in their spouse's life that caused the marriage to break down.  This is because the spouse cannot, or will not, come to terms with the fact that the marriage simply wasn't a good match or that their spouse was looking for something in his or her life and thought it was present in the other spouse only to find that it wasn't.  Some spouses marry with blinders on.  They see the good qualities of the prospective spouse and then simply hope (or even expect) that over time if they marry the person that the remaining characteristics and qualities they do not see in that person will develop  . . . or they believe that the person will change because of their influence.

Whatever the circumstances, divorce lawyers will not hesitate to subpoena one or more persons that the spouse believes is (or could be) the person that caused the breakdown of their marriage.  This person is seen as the alleged "homewrecker". 

The purpose of subpoenaing the alleged homewrecker is two-fold.  First, when an attorney does this at the wishes of the client (especially without any proof that anything has occurred) it seemingly validates the beliefs of the client that there was in fact a "homewrecker" who ruined the marriage.   Regrettably I have found this to be true mostly in the case of women who feel scorned or rejected when the man files for divorce.

Second, whether the person subpoenaed is a love interest or simply a friend and confidant that the husband has chosen to confide in and is part of his support system to get through the divorce, it puts pressure on the man to keep the love interest, friend or even girlfriend out of the "divorce battlefield" to prevent her from experiencing anxiety, humiliation or any other fallout from the scorned wife.  This in turn has a third effect of leveraging the husband (at least in this example) to succumb to the demands of the wife's attorney even if they are unreasonable and inequitable purely to protect a person who may in truth simply be a friend who is supporting the man through the divorce process by being a listener or sounding board.

WHAT CAN THE "ALLEGED HOMEWRECKER" DO?

He or she can make a Motion to Quash before the court.  A Motion to Quash is a motion asking the court to invalidate the subpoena either permanently or temporarily based upon the circumstances.

The Rhode Island Family Court Judges generally have a good grasp on the reasonableness of a subpoena used in these situations.  A judge will not typically allow the unfettered intrusion into the life of person who is only alleged to be a person who has caused the breakdown of the marriage, especially if the subpoena to the third party (ie the alleged homewrecker) demands the production of documents (called a "Subpoena Duces Tecum") that invade the life and personal finances, etc . . . of the third party.  Without corroboration from the spouse who is alleged to have had the affair, or some other corroboration, there is a very good chance that the court will quash or invalidate the subpoena.

Typically the "alleged homewrecker" can orally or in writing, move to quash the subpoena.  It is best that if the person served with the subpoena is going to do this that he or she have more than one basis for doing so. 

REASONS FOR QUASHING A SUBPOENA in these circumstances include:

1)  It is intended merely to harass the person served and/or cause him or her anxiety;

2)  It is believed that it was issued merely to force a party to agree to inequitable terms in order to prevent one parties' friend from being embarrassed and humiliated by even the accusation the he or she was involved in an extramarital affair, thus it is being used to cause undue duress on the party alleged to have been involved in an affair;

3)  That the subpoena demands documents that are invasive of a reasonable person's right to privacy;

4)  That the subpoena was untimely served (requests for documents should provide at least 2 to 3 days for the person served to obtain the documents);

5)  That the subpoena was improperly served (A Rhode Island Subpoena must be served (a) personally, (b) by a person authorized to serve process in Rhode Island, (c) with the State of Rhode Island, (d) with a check for witness fees of  approximately $12 to $14).

6)  That the subpoena should, in the very least be invalidated, subject to the serving party's establishing a foundation for the subpoena and/or the alleged relationship between that party accused before the third party's privacy is violated.  Attorneys call this "quashing the subpoena subject to establishing foundation.";

7)  The subpoena cannot be complied with without undue risk of loss of employment of the subpoenaed individual with explanation as to why there is undue risk (i.e. brand new job and can't take time off);

8)  The subpoena cannot be complied with due to illness with a physician's note, preplanned vacation with proof of same, employment obligations out of state on the time and dates compliance with the subpoena is required.

THE POINT

Persons alleged to be the "other man" or the "other woman" who have been served with a subpoena in a divorce matter do have options of recourse to prevent this attorney's tactic.  Persons served may oppose the subpoena for these reasons and other basis of good cause if they do so timely and do not sit on their rights (i.e. wait til the last minute).  The longer a subpoenaed person waits to oppose a subpoena, the less likely it is that the court may grant the requested relief (i.e. that the subpoena be quashed in whole, in part, or subject to establishment of foundation).

Authored By:

  Christopher A. Pearsall
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West Warwick, RI 02893

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Divorce, Affairs, Cheating and Rhode Island Law

Question:  I had an affair before I filed for divorce.  If the judge finds out about the divorce what might happen?

Answer:  Divorce may be based upon irreconcilable differences or may be fault-based under Rhode Island Law.  A divorce case may be filed based upon adultery.  Thus, an affair may play a part in your divorce proceeding.  However, the role the affair may play in your divorce will be directly related to the circumstances and the timing of the affair. 

Consider these two diverse examples:

Example No. 1 - John & Tina

John and Tina have been married for 20 years and have two children. The second child turns 19 and goes off to college.  Unbeknownst to Tina, John has been unhappy for hears and has considered divorcing her for years because they have had virtually no relationship.  However, before John files for divorce he gets a promotion at his job and meets a woman who makes him feel alive again.  He begins to see this woman for two months and then files for divorce and immediately moves out of the house.

In this instance, what role does the affair play?  If Tina discovers that the infidelity began two months before John filed for divorce she might assume that this "other woman" and this "affair" are the cause of the marital breakdown and file a counterclaim for divorce alleging infidelity.  If Tina insists on going forward with the counterclaim for divorce based on adultery, it is possible that her counterclaim will be denied if the family court judge hears John testify that he was unhappy for years and merely stayed together for the sake of their children and it was only by fate that he ran into a woman who made him feel alive again.  If the judge believes John and believes that divorce was inevitable, then Tina should not prevail on her claim of adultery because Tina has not shown the affair was the actual cause of the breakdown of the marriage.

Example No. 2 - Bill & Sheila

Bill and Sheila have been married for five (5) years.  Sheila has been relatively happy with Bill.  He is a good provider, he takes care of her, he talks with her and listens when she needs his ear.  Bill is very supportive of Sheila and encourages her to participate in whatever activities she might like.  Sheila decides to take exercise classes and Bill pays for them.  Sheila ends up with a rather muscular and attractive trainer for her classes.  After working with her personally in the first class Sheila is all excited for her next class.  After her next class Sheila asks her trainer to go out with her for coffee and over the next few hours Sheila entices her trainer to a nearby hotel where they have intercourse.  Sheila begins to become distant to Bill. Bill notices it and continually tries to respond to Sheila's needs. Bill showers Sheila with gifts, takes her on a romantic 10 day cruise, takes her out to dinner more frequently and sends her flowers each month.  Sheila explains that her favorite activity is her exercise class  so Bill continues to pay for it.  Bill After each class Sheila meets her trainer at a different local hotel or motel and continues her affair.  Bill eventually discovers the affair about 14 months into the relationship.  Bill is crushed and files for divorce based on adultery.

In this case Bill's claim based on adultery may be granted because the marital breakdown can be directly related to Sheila's affair with her trainer.

In either case, the family court judge is allowed to consider the conduct of the parties in the equitable distribution of the marital estate, both the debts and the assets. 

In Example No. 1, unless John spent a considerable amount of money or gave his new girlfriend substantial assets or signed a loan for her and incurred more debt in his name, a family court judge is likely to conclude that John's conduct was not the cause of the marital breakdown and that it had little or no effect on the marital estate and therefore John's conduct will make little or no difference in the way the court will distribute the marital estate.

In Example No. 2, Sheila's deception may be shown to be the cause of the marital breakdown and as a result of the deception and Sheila's change in attitude toward Bill, Bill was deceived into believing that he was the cause of the problem or that he could rectify whatever the problem was between him and his wife.  A judge might well find that Sheila's deception caused Bill to spend thousands of dollars in marital assets and incur thousands of dollars in marital debt in order to please Sheila.  In the very least Sheila deceived Bill into paying for her classes and facilitating her affair.

If you assume in Example No. 2 that Bill spent $18,000 in that 14 month period for the classes, trip, flowers, etc... believing that he could repair the unknown rift in his marriage with his wife, the court may hold Sheila responsible for $18,000 more of the marital debt or divest Sheila of $18,000 in marital assets to make up for the damage her deception caused to the marital estate.

As you can see, in either example the idea is not to punish a party for their infidelity, but rather to determine if the infidelity was the cause of the marital breakdown and whether the infidelity caused any financial impact to the marital estate (ie. the debts and assets of the parties).

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.

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