Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

A Rhode Island Family Lawyer's Perception on Protection from Abuse Orders.

Rhode Island law provides for persons subject to physical violence or threats that create a reasonable fear of imminent physical harm to obtain from the court an Order of Protection for that physical violence or threat of imminent physical harm.

This Order is most often sought by women who represent to the court that they are in fear of their husband or significant other based upon some recent conduct he has done.  The Order typically restrains and enjoins the man from harassing, molesting, stalking, cyber-stalking or in any way contacting the complainant at home, at work or on the street.  The  Order may also require the threating party to leave the marital home or the residence where both parties may reside until the matter may be heard within three (3) weeks after the judge grants the initial Order based solely upon the claimant's affidavit.

Perhaps the biggest mistake serious complainants who have been threatened or harmed make is to appear at the hearing three (3) weeks later without a Rhode Island family law lawyer and dismiss the complaint.  This could be for any number of reasons, including a change of heart, a continued hope that the abuser will change, guilt associated with excluding the father from his home or children, or pressure from other family members.

I mention this because most often what occurs is this.  The abuser is allowed to continue the course of conduct he or she has caused or is not taught that this conduct is unacceptable.  Abusers typically will continue to contact the complainant even after they have been served with the Protection from Abuse Order.  Regrettably, the complainant who has obtained the Protection from Abuse Order allows this conduct and does not call the police to have the Order enforced.  Unfortunately, it is often because the "contact" is often apologetic, endearing and pleading by the abuser in an effort to get the complainant to do exactly what I have mentioned here, namely to go to the court hearing in three (3) weeks and drop the Protection from Abuse Order.

What the complainant should be considering are questions such as the ones listed below in order to avoid making a big mistake.

1)  How long have you had a relationship with the abuser?

2)  How extreme was the conduct of the abuser when compared to the length of the relationship

3)  Is this a one time instance of abuse or has the abusive conduct been gradually increasing?

4)  If you have children, will this choice be the best for the child or children or will you be subjecting them to further abuse?

5)  Are you being guilted into this decision?  Or are family members pressuring you to drop this?

6)  Do you honestly believe that the abuser has changed in just a few short weeks

Complainants should seriously question their decision to drop a Protection from Abuse Order.  The law is there to protect you.  If your complaint is genuine, the use of the law is appropriate and you could return to court in the future to ask the court to remove the Protection from Abuse Order.  However, it is unwise to disillusion yourself into thinking that the abusing party has changed in such a short period of time.

To the contrary, if you have used the system simply to teach the "alleged abuser" a lesson, then do the court and everyone else a favor and drop the restraining order.  You are wasting your time, the court's time and resources and misusing the law for your own purposes which the law wasn't intended to address.

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, 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.
Pearsall.net | AttorneyPearsall.com | Rhode Island Divorce Tips | ChristopherPearsall.com | GuaranteedWealth.com | Rhode Island Divorce Attorney | Rhode Island Divorce Lawyer | Chris Pearsall
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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.
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RI Divorce Lawyers | My Take on Bank Accounts

Once a Rhode Island Divorce is filed by your attorney (or by yourself) then it would be wise to consider what you do each day or you might end up in handcuffs.

The Automatic Orders of the Court are not simply a peice of paper.  They are embodied in the Rhode Island General Laws and they prescribe what you can and cannot do.  I ran into a siutation similar to this.  You can look at the Automatic Orders of the court to see what you thing but here's my take on it.

Bob is married to Judy.  For the final year of their marriage Judy is not working outside the home but she is taking care of someone dear to her who is very ill.  She had a good job for the first two years of their four year marriage and contributed to everything.  Judy was unhappy with her job and presumably wanted his wife to be happy so he told her to go ahead and quit because he made enough income to sustain them for a while.  Judy does so with Bob's approval.  They decide to get divorced.  Bob gives Judy $4,000 as a sign of good faith to help settle the case more quickly after it's filed.  Bob files for divorce and gets a lawyer.  Bob is upset when Judy gets a lawyer and uses funds from their joint checking account to do so.  Bob has Judy served and immediately with draws all the money for their joint bank accounts.

As a family law attorney there's no argument, the Automatic Orders that were filed when  he signed his Complaint for Divorce are in full force and effect and they prevent him from essentially "monkeying with the finances".  Bob has shut Judy off from the financial resources that she has relied upon with his agreement for the past year.

Judy had planned to move to Indiana because she has relatives there but she has no job prospects yet.  She has her own credit card but since she has no job it would be difficult to pay it if the kept charging on it.

What is a judge likely to rule in this instance based on Tom's violation of the automatic orders?

Should it matter that Judy has a credit card in her own name that she can make charges on?

If the credit card is her only means of survivial and she needs $2,000 to travel to Indiana and give her a 2 month cushion to find a job should this be considered an "Emergency Situation"?

Should  it be considered an emergency by the court if Judy had already booked a trailer with the monies Bob had given her paid her rent in advance in Indiana and was scheduled to leave in only four days?

What if Judy discovered through her attorney that she was entitled to ask for 10 times more than Bob was willing to offer her?  Does that change whether this puts Judy in an emergency situation.

My take on it is that Bob violated the Court Order, plain and simple and he should have to put half the money back or give half the money to Judy regardless of the $4,000 he gave her hoping that she'd go away with less than she was entitled to.

What's your take on this?  I'd really appreciate hearing from laypeople, professors, legal professionals, etc...

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.)

RI Divorce Orders: What You and Your Rhode Island Divorce Lawyer should examine carefully?

The importance of Rhode Island Family Court Orders can't be emphasized enough.  It has often been said, "a court speaks through its Orders."  Though Orders in a divorce or family law matter often summarize the majority of information contained "on the record" of the court (i.e. transcribed in real-time by the family court stenographer) this quotation carries substantial truth.

Each time a divorce or family court matter is brought before a Rhode Island Judge designated to address that matter, the Judge almost universally checks the file, reviews the docket sheet and looks at the Orders entered in the matter to tell the story or the history of what has taken place before the particular matter is heard.

Thus, the importance of the wording of the Orders becomes even more significant because once an Order is entered, its language will tell the Judge not only the history of the case but it will tell the Judge the posture of the parties.

Here's where you or your attorney need to be on your guard when reviewing a proposed order or proposing an order in your case.  You should review a proposed order carefully for wording and/or distortions that may look your position look less positive.  You should also look for language that is slipped into an Order because it may have been discussed but not agreed upon or the Judge was less than definitive on in his or her ruling.

Typical Examples you may run across might be as follows:

The attorneys have a chamber's conference with the Judge to try to narrow and resolve some issues and agree to bring various offers to their clients to consider.  The clients then approve the agreed upon terms and the attorneys confirm for the other attorneys and the judge that the terms are agreeable.

Then comes the scrutiny of the Order.  A proposed Order comes in from an opposing party and it states that "after hearing thereon, and by agreement of the parties, the following is Ordered, Adjudged and Decreed."

In this instance your eyes should gravitate to the words "after hearing thereon".  Why?  Because there was NO HEARING.  A hearing presumes either oral argument on the record of the court or a full hearing with live testimony on the witness stand.  This did not occur here and a judge who is reviewing the file will assume that arguments were made by the parties or that testimony was taken, either of which justified the entry of the Order by the judge.  This gives the judge a substantially different picture of the circumstances surrounding the entry of the Order than if the Order simply stated "by agreement of the parties."  Strive for accuracy and as much positive language you can include that supports your position as possible.

In another instance let's say there is a hearing on placement with live testimony before a judge and the judge Orders on the record that placement is temporarily ordered to be with the Plaintiff for a period of 90 days.  However, the proposed Order arrives from the opposing counsel and it states in Paragraphs 1 and 2:

1) Plaintiff is awarded placement of the minor child, Constance.

2) The court will review placement of the minor child on May 14, 2008.

Assume you represent the defendant or that you are the defendant.  What's the problem here?

First, there is no mention that the Plaintiff is temporarily awarded placement of the minor child.  The difference is that temporary placement implies that the Defendant previously had placement of the minor child.  Without including the word "temporary" the Judge does not know or may not look to see how long the Defendant had placement of the the child or why.  In fact, without that word, a judge might be inclined to see that as a non-issue in the case and not allow you to address it before the court, placing you at a disadvantage to your case.

Second, a careful reading of the the proposed order to be entered in the Rhode Island Placement file may cite May 14, 2008 which may, in fact, be the 90th day for review, but again, this is NOT what the judge ordered.  The judge did not specify May 14th.  Therefore, if you don't catch it, an order may enter either by agreement or after hearing that does not reflect the 90 day limitation on the temporary placement, just as an order after hearing is much different than a Consent Order where the parties agree to a 90 day period to test the situation.

The language of Orders can make or break your case simply because you or your attorney did not pay close enough attention to the details.

The Devil is in the Details!  Ask your attorney to send you each proposed Order before it's entered if you are at all concerned because the issue is crucial to your case.

My Point?  Consider every order carefully!  The Judge will!  Shouldn't you be twice as careful?

Authored by:

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

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

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

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

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

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

Rhode Island Divorce Attorney Christopher Pearsall on "Orders by Agreement"

In Rhode Island Divorce and Family Court matters it is often said that a court speaks through its "Orders".  This is truer than most laypeople might like to believe.  However, with the ever growing caseload in the Rhode Island Family Court system, judges cannot reasonably be expected to remember every case that is handed to him or her on the bench.  Typically a judge may look at his or her notes and review the Orders in the case to see what was previously Ordered and refresh his or her recollection of events that may have already come before him or her previously.

For a better understanding of how a court proceeding may operate, an "Order" is typically signed by the judge presiding over the case or controversy at hand and is usually related to one or more issues in the case but does not necessarily finalize a case unless the case was a single issue such as a Motion to Modify Child Support.  In that type of case an Order typically ends the issues and closes the case.

A "Decision", "Final Decree" or "Final Judgment" symbolizes the end of a case and the Judge's final decision usually in a case that has been heard on its merits.  These documents are essentially, elevated Orders but they have sufficient finality such that they carry a greater status and are, generally speaking, subject to review or appeal to a higher court if a party disagrees with them.

With that said, let's look at Orders once again.  An Order instructs one or more of the parties involved in the case, or the parties' attorneys, to take a particular action or actions or the Order otherwise prohibits them from doing certain things related to the case.

Orders may arise in several ways.   An Order may be made by a Judge after oral argument in open court by the parties or their attorneys.  An Order may likewise be made after a hearing on the merits in which testimony is taken, arguments are made and the court is called upon to render an Order based upon the evidence presented.  Finally, an Order may be made by the "agreement of the parties" in which the parties agree to the terms or an Order that may enter either with or without the assistance of the court.

An Order by Agreement of the Parties is, and should be, of particular interest to litigants either in a Rhode Island Divorce Proceeding or in any other family court matter.  This Order typically originates by one of three processes. 

First, it may result from an "in chambers conference' or a "bench conference" with the judge and with counsel for both sides agreeing to particular provisions or terms of an Order after discussion with the judge thereby binding their client to the result.

Second, an order may result from a hearing after oral argument and/or testimony upon the record of the court (that is... taken down by the court stenographer) with the Judge issuing an order relative to the matter presented to the court.

Third, an order may result from both parties and/or their attorneys reaching an agreement as to what terms are acceptable to both of them and the agreement of the parties is presented in the form of an Order for the Judge to sign and occasionally for the parties to sign.

If you look back at the orders that are entered by the "agreement of the parties" either through the parties themselves or after being bound by their attorneys, those Orders have been referred to in case law as "Consent Orders."

Now you may be wondering what this means to you, right?  While judge's, and many attorneys might wish to simply treat these orders as Orders of the Court, meaning . . . . the Judge signed it . . . so you do it, yet that is not supposed to be true in many cases. 

In the case of Waters vs. McGee, 877 A.2d 658 (2003), the Rhode Island Supreme Court indicated that although the court gives its "imprimatur" or "seal of approval" to the agreement between the parties, an Order that is by agreement of the parties and is simply approved by the court is to be treated as a contract between the parties and it should be treated as such by the courts.

This is significantly different from much of the court practice today and both attorneys and laypeople who are faced with issues in Consent Orders (those Orders by agreement of the parties) should be aware of the Waters case.  It is a case that specifies how Consent Orders are to be treated and judges, attorneys and laypeople need to know about it.

One brief example will show you the significance.  Mom, Katrina, enters into an order by agreement with her ex-husband, Glenn that their oldest child Liza may go and live with Glenn for a period of 3 months because the daughter, Liza would like to try living with her father.  During the 3 month period however, the relationship between Liza and her mother degrades to an almost irreparable level and the child is out of control without any discipline because of Glenn's manipulation of Liza and his girlfriend twisting things against the mother.

The Mother, Katrina, files a Motion for Return of the Minor Child to her care as a result of the circumstances and pursuant to the ruling in Waters vs. Magee.  The judge however has ordered counseling and for reasons unknown to Katrina the judge unilaterally orders the child to remain with the father without making any findings of fact.

Though in this instance the argument did not prevail, it is likely that it should have prevailed.  The more this argument is used, the more likely it will be respected in the future by judges based upon the Rhode Island Supreme Court ruling in Waters v. Magee.

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.)