Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

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
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

Rhode Island Divorce and Family Law: Your Lawyer's Discretion

Many people hire a Rhode Island Divorce and Family Law Lawyer to help them through the divorce process because it's not as straightforward as many people would like to believe.

However, what many clients forget is that they are in charge of their case.  If they request that their lawyer do or not do something in their case, then the lawyer must follow that request, perhaps explain the consequences of the client's choice if the lawyer does not agree, and then do as the client requests.

Some client's might make requests that save them money.  Others might make requests that prevent the divorce matter from becoming more adversarial than it already is.

As lawyers, client's hire us for our expertise, our discretion and our independent judgment.  Therefore, unless the client designates specifics in the case and makes sure that he or she understands what is being done on his or her behalf, the lawyer will make his or her best judgment regarding what must be done to reasonably protect the client's interests.  That may include discovery documents, motions, letters to opposing counsel and even depositions. 

Your divorce or family lawyer's discretion only extends as far as you allow it to, provided you allow your lawyer the opportunity to explain to you the consequences of your decision and even confirm in writing that you are asking him or her to proceed for you against the advice of counsel.

If you see your legal bill and believe it substantially deviates from the actual work your attorney has done, keep in mind that not everything you see is what the attorney has done.  You do not see the phone calls that are made by the attorney and on occasion you may not see the discovery documents sent to the opposing counsel (simply to save you money) but you should be aware that the attorney was going to draft them. 

Keep in touch with your case.  Know the steps and make sure your lawyer is clear on the work that is going to be performed for you.  Find out what your lawyer thinks are mandatory actions in your case and what are not.  Remember, your lawyer only truly has as much discretion as you give to him or her.  If you are silent regarding various aspects of your case, it is always assumed (and properly so) that an attorney must take the steps he or she sees are reasonably necessary to protect your interests.

 

Authored By:

  Christopher A. Pearsall, Esquire
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

Copyright 2008.  Christopher A. Pearsall, 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 |
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 Attorney Ethics by Divorce Attorney Christopher Pearsall

Whether you are talking about a divorce attorney or a bankruptcy lawyer or even any Rhode Island lawyer you choose to address, it matters little when you come to ethics.

Why do I say this?

It is an observation I've made over the years working with clients and one that still confounds people today.  It is the difference between an attorney being ethical and an attorney practicing within his ethics.

The two are not the same. 

For instance, if something is ethical then it can be said that it is something most men and women of a reasonable disposition are likely to agree upon as being exceptible treatment as between people.  This, of course is just a general standard and does relate just to divorce attorneys and whether they take actions that are ethical or not but rather, it is an internal standard of each person. 

Simply put, each of us might see the same behavior while one person would find that behavior to be ethical and another person might find that behavior to be unethical.  So, as you can see, something ethical is based on an internal standard that we have established within ourselves or that has been ingrained in us as a result of laws, history, family or even social conformities.

Whether an attorney is acting within his ethics is, however, an objective standard.  When we refer to an attorney in this manner we are referring to whether the attorney has followed the Professional Rules of Conduct.  These are a specific code of conduct.  They set down standards under which the attorney must function if he or she is to avoid discipline or disbarment.

Though this all sounds rather philosophical, it is nevertheless important.  An attorney can be ethical yet not be within his or her ethics. 

Why should this matter?

People generally believe that because attorneys are bound by a code of ethics that they must also be ethical.  This is not true and it is something that especially litigants who are working with attorneys need to know.

One example is all that is needed to illustrate this point.

An attorney has been hired by your former spouse on a Motion to Modify Child Support.  You reach an agreement with the attorney by handing him your tax return to show your gross income.  Your former spouse does the same.  You explain to the attorney that your tax return includes substantial overtime from last year but that you don't get overtime anymore.  The attorney states that it's okay because the Child Support Guidelines account for it. 

The child support is calculated and you end up paying $60 per week more in child support than you should simply because you entered into an agreement and weren't informed.  The attorney has not violated our ethical code because he has not lied to you about the guideline adjustments.  However, by my standards the attorney has acted unethically by entering into an agreement with someone, knowing that child support should only be calculated on your existing income and not your previous income.

As you can tell, personal ethics is much broader than the Professional Code of Conduct which dictates our professional ethics.

When referring to an attorney as unethical, it may help to clarify whether you are talking about a violation of your own personal ethics or the attorney's violation of his code of conduct.

Authored by:

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

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

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

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

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

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