Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

The Rhode Island Divorce Attorney Asks: Is it better to hire a Rhode Island Divorce Attorney who is emotionally disassociated from his or her clients?

Would it be better as a Rhode Island Divorce attorney to remain impersonal? Over the years, the vast majority of divorce colleagues that I know who practice in Rhode Island who have shared their thoughts with me generally adhere to the principle that as attorneys we should be... or are even "required" to be . . disassociated . . . to separate our feelings from our clients in order to represent them properly. The idea, as I understand it is to make sure we keep our legal minds sharp and not to allow them to be cluttered with the emotional quandries that often cause clients to want to take action without legal reason or basis but simply because they are driven by anger, fear, jealousy, hurt or revenge.

In this respect I must diverge from my fellow divorce colleagues. The answer for the Rhode Island attorney as I see it is much more challenging. It would seem to me that the practice of a good Rhode Island attorney is to empathize with the client, appreciate and understand your emotions as the client, and to temper the corresponding response to those things with skilled reason.

Below are a few questions for you to ponder and decide for yourself. Just as marriage is personal to you so too the answers to these questions affecting your divorce are matters personal to you.

As a Rhode Island Divorce attorney, I would appreciate it if you would kindly humor me as I dig a little deeper and draw a picture here.

Imagine you are involved in or contemplating your own divorce. Can you see it?

Do you see your divorce as an ending or a new beginning?

Do you see your divorce as merely the Rhode Island law imposing itself on your life?

Is it a mental, emotional and financial drain on your life and your family?

Frankly, divorce can cause all of these things to occur in your life.

Finding the right Rhode Island Divorce attorney is not an easy task for anyone who doesn't already know a good divorce attorney.

Are you searching for a good Rhode Island Divorce attorney?

A good approach may be to consider your own situation and your own answers to these questions. Afterall, isn't your divorce all about your life? It certainly isn't about the attorney's life, right! It's about you and your life!

So what are your answers to these questions and how might they help you?

1. Do you have minor children whose care and support might need to be addressed by the Rhode Island Family Court?

2. Do you have a business that may be subject to division as a marital asset in you divorce proceeding?

3. Is this your first or second marriage?

4. Do you have children from you first marriage? Did you or your current spouse adopt any children during your current marriage?

5. When you consider your own divorce, what are the most important concerns in your mind?

Can a Rhode Island divorce attorney properly address your mental and emotional needs as a client and a married person if the attorney has never been married before? Wouldn't it stand to reason that a attorney who has been married before might better appreciate your feelings and your needs? Or better yet, wouldn't it make sense that a attorney who is currently married could understand you even better?

Now, if you consider your answers to all of these questions . . . wouldn't you want your divorce attorney to be sympathetic or experienced regarding YOUR concerns? It makes sense, right!

So let us say you are interviewing a divorce attorney to represent you. Would it matter to you that your divorce attorney is not married or has never been married?

Here's my thought on this. As a client, you decide if you agree. Isn't it at least a little bit more likely that a divorce attorney who has not dealt with marriage in his or her own life more likely to understand you and your concerns as opposed to a divorce attorney who isn't married? It makes sense that the married attorney is more likely to be better able to sympathize or empathize with your feelings and emotions about your marriage and therefore your divorce, doesn't it?

If your divorce involves your child or children, should it make any difference to you that when you are interviewing divorce attorneys that the doesn't have any children?

Let's look at this once again from the practical side of hiring a divorce attorney. Doesn't common sense tell us that if your divorce attorney had children then he or she could truly appreciate the importance of your children than the attorney who doesn't have any children?

What makes a good Rhode Island divorce attorney? Naturally what I have to offer is solely my own opinion on this subject. Certainly part of it is education. Neither I nor any of my colleagues would be practicing attorneys and trying to help you through your divorce if it weren't for a law school degree. However, I think that in reading this article it may be more helpful to provide some direction regarding what you might want to consider when engaging a Rhode Island attorney as either your "in-court" divorce attorney or your divorce coach.

Another facet of what makes a good Rhode Island divorce attorney is experience, but it is not merely experience in the practice of law but also life's experience.

As I mentioned I have my own thoughts on the subject. It makes sense that a married attorney might better understand a client's difficulties during a divorce. It also makes sense that a attorney with children might better understand the nature of a client's feelings and issues if there are children involved in a divorce.

Personally I it's my opinion that experience should certainly be a big consideration in your choice of divorce attorney. However, that should be qualified to some extent because experience simply as a attorney isn't what I'm referring to here. If you are looking for a divorce attorney to protect your interests then you should be interested in a attorney's experience in the Rhode Island Family Court arena.

It goes without saying that experience as a personal injury attorney for twenty or so years really doesn't have anything to do with a attorney's ability to protect your interests in a Rhode Island divorce proceeding. Therefore, experience representing clients in divorce matters should probably be a focus in your search for a divorce attorney. If you have a choice between a attorney who represents ten or so divorce clients in a year as opposed to a attorney who represents fifty divorce clients a year, then that should give you an inclination as to which attorney is likely to be more skilled in the area of divorce and probably better suited to protect your legal interests in the divorce.

So what might you look for in the way of experience and how should you get the real answer as to whether the attorney is experienced in divorce or not? You'd think this would be a particularly difficult question to answer but I don't believe it needs to be so complicated. It certainly isn't about listings in the Yellow Pages. That is merely about having the money to pay for the advertisement and selecting "divorce" as the category where the attorney wants the advertisement posted. The same is true for the Yellow Book and for just about every other advertising medium out there, including sponsored advertising that you see on MSN, Yahoo and Google or where you see "ads by Google", etc..

Do you really want to know if a attorney is experienced in the Rhode Island Family Courts in the area of divorce? Here's a suggestion. Call the Clerk's office of the Family Court for the two counties that are closest to the attorney's primary location. When you call, ask the person who answers the phone "Do you know attorney X?" Thank the person and say, "by the way how long have you been working in the clerk's office?" If they do not hesitate and they know the person and they have been in the clerk's office for several years, then you have a good indicator of the attorney's experience in the family court. In otherwords, an experienced divorce attorney will usually be known by the people in the clerk's office who have been there for a while. If the person who answers the telephone does not know the attorney, then ask the person if he or she would be so kind as to ask a co-worker or two around them if they have heard of attorney X. If you make a couple such calls then you will have a reasonable indicator as to how much time attorney X spends for clients at the Rhode Island Family Courts.

Some people have suggested to me that a Rhode Island divorce attorney's hourly billable rate, the better he or she is as a divorce attorney and the more experienced the attorney must be. This is a theory you may want to weigh with a grain of salt. While it may seem to make sense that only a "good" and "experienced" Rhode Island Divorce attorney would have the audacity to tell you without batting an eye that his or her hourly rate is $300 per hour. This is far from the truth.

Personally, I know several Rhode Island Divorce attorneys who charge an hourly rate of $300 to $350 per hour, yet when push comes to shove I know several other attorneys who charge $200 per hour whose skills are substantially greater than the higher priced attorneys. Additionally, I know some attorneys who charge $200 per hour and have been practicing for several decades but I wouldn't hire them, nor would I recommend them because they are poorly skilled and/or simply don't care about their clients. Once the check is in the door from the client it would seem that they act as though they have done their job, to obtain an income.

Another faulty proposition I have heard is that you can tell if a attorney is good at what he or she does by his or her lifestyle. This proposition suggests that it is important to look at the car he or she drives, how fancy their office is, how many support staff they have, how many diplomas and awards they have on their office walls, etc... This proposition to put not too fine a point on it simply borders on the absurd. All these things really tell you is that somehow the attorney you are considering has done well financially prior to the moment you walked in the door.

Think about these questions. Did the attorney inherit from a rich relative? Did the attorney marry a rich spouse? Did the attorney win the lottery? Is the attorney a great divorce attorney? Is the attorney great at bilking clients out of their hard earned money?

Looking at the divorce attorney's lifestyle tells you absolutely nothing whatsoever about the attorney's skill or experience.

This article started with the idea that perhaps an divorce attorney should disassociate from the client and his or her feelings. Essentially it has been proposed by several of my colleagues that you should not allow your personal feelings (i.e. your caring) to come into play at all. You should see each situation and simply address it with whatever procedural steps are appropriate.

In my mind it makes all the sense in the world that a person will do more for to protect and fight for someone they care about. Not only does this make sense but it is no less true for divorce attorneys. If so, then why should we as Rhode Island Divorce attorneys disassociate our caring for the client. Apply this maxim to the divorce attorney and what do you get? A divorce attorney will do more to protect and fight for a client he or she cares about! It's beyond logical, it's common sense! This is tantamount to a passage I read long ago from a historical text that contained a statement as follows:

"If I were a betting man, I would bet all I have on a single farmer defending his home and his family against an entire battalion of Redcoats."

It makes perfect sense that eliminating "caring" by disassociating from the client seemingly removes a substantial and powerful edge that a client should be entitled to from the attorney when paying a reasonably substantial fee.

Lastly, it certainly makes sense that a divorce attorney who has been through a divorce himself or herself is likely to be a substantial benefit. I admit this is a bold I am making here. However, I must admit that as a Rhode Island attorney who has limited my law practice exclusively to Rhode Island Divorce and Post Divorce Issues it has been perhaps the greatest benefit to my practice in Rhode Island divorce law that I went through my own divorce before I became an attorney in the State of Rhode Island. That experience alone has given me a perspective that I would not otherwise have and which has enabled me to connect with my clients in ways that I do not believe that other attorneys are capable of doing effectively. It has been one of the most challenging trials in my life that has created a positive effect on my practice and my ability to relate to and help my clients.

Since this article has turned into more of an exercise addressing ideas surrounding various aspects relating to the hiring or an experienced Rhode Island Divorce attorney it may be appropriate in closing that I summarize the suggested conclusions of this article.

When seeking to engage a Rhode Island Divorce attorney it is probably best to consider hiring a divorce attorney that

1. Is married;

2. Has children, if you have Minor Children;

3. Has personally gone through their own Rhode Island divorce, if possible.

4. Has Rhode Island Divorce experience such that he or she regularly represents clients in the Rhode Island Family Court and may be known to people at the Rhode Island Family Court;

5. Charges a reasonable fee for his or her services based upon his or her divorce practice experience;

6. Exhibits caring for his or her clients in their divorce proceedings (i.e. does not disassociate from his or her clients);

7. Is not based simply upon paid advertising medium; and

8. Is not based on a attorney's success merely by the appearance of the attorney's lifestyle (i.e. car, suit, office space, support staff, house, etc.)

Let me be very clear that this article is meant to help you find a good attorney and determine whether or not you think your divorce attorney should be "disassociated" or not.  I have my opinions, my thoughts and my theories. I have presented them to you based upon what I have heard from others and I have tried to show you the logic or lack of common sense behind each. The idea in any event is NOT in any sense to judge my fellow attorneys. Even I must admit that no matter what set of criteria you put together to identify a good Rhode Island Divorce attorney, there will be exceptions.

I'm not perfect. I'm not the right Rhode Island Divorce attorney or coach for everyone. I don't charge you $350 per hour. I don't drive a BMW, my 1998 Chevy Cavalier gets me where I want to go faithfully and looks reputable. You won't find me wearing expensive suits because I don't want my clients paying for such extravagances. You'll find me in a respectable suit coat, dress pants, dress shirt and tie. You won't find a fancy office with plaques and degrees lining the walls because my Rhode Island divorce practice isn't about me and what I've achieved . . . it's about YOU and YOUR LIFE! Lastly you won't find me paying support staff unless its absolutely needed for your case because I don't want you to pay for someone who is a convenience for me more than you.

What you will find is an honest, caring man who has personally been through a divorce with children, assets and debts who is now happily married and has wonderful grandchildren. You will find me equipped with today's technology to do everything I need to do for you as economically and professionally as possible to save you money.

Most of all, You will find me caring about your case and charging rates that some colleagues and judges have found absurdly low for my experience. And . . . should you ever want to know I will be happy to explain to you why the last decade of my life has been dedicated exclusively to practicing Rhode Island Divorce and Post-Divorce issues in the Rhode Island Family Courts throughout our state.

The economics aren't complicated. If there is less overhead in my law practice and, I maintain a lower personal standard of living, then I can pass on the savings to you and do more for you. Ultimately I have a different philosophy than many attorneys. My law practice is not about divorce, nor is it about how much money I make from you. My practice is about how many good people like you that I can guide successfully to a better tomorrow.

I invite you to consider what I have to offer. You just may be pleasantly surprised .... if not shocked.

My best to everyone going through a divorce or post-divorce family law situation in Rhode Island or contemplating it. Whether you call me or not, I know how hard it can be.

Remember . . .  I've already been there!

Authored By:

Christopher A. Pearsall, Attorney-at-Law

(C) Copyright 2010 (All Rights Reserved.)

Rhode Island's Full-Time Divorce* attorney is Now Rhode Island's Only Divorce and Family Law Coach!!

*The RI Supreme Court licenses all attorneys in the general practice of law and has no programs for recognition of specialization of attorneys in any area of law. Please note: This is not legal advice but is a public service to those in need.  

Disclaimer:  Information provided on this website is in no way a substitute for legal advice provided by a competent Rhode Island Divorce and Family Law Practitioner who has had the opportunity to meet with you and question you regarding ALL aspects of your case.  Contact with Christopher A. Pearsall, Esquire through this website does not establish an attorney/client relationship.

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.

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Christopher A. Pearsall, Attorney-at-Law

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RI Divorce Lawyers - Painting a Rosy Picture May Net You a Divorce Fantasy and Nothing More!

As a Rhode Island Lawyer focusing my practice exclusively in the area of Rhode Island Divorce and Family Law, I have learned that when people come in for a consultation they want to tell me their story and they want to be told exactly what they want to hear. 

Yes, despite the fact that every divorce lawyer may not portray a realistic scenario to the potential client, clients need to realize that a lawyer may tell them exactly what they want to hear.

If you skimmed that last paragraph which was only one sentence long and you have already forgotten it, then . . . my dear reader . . .WAKE UP!

I'll repeat it because it is so crucial and I'll even be more blunt.  Some lawyers . . . to get your business . . . will tell you exactly what you want to hear!  They may give you results that are not realistic not just for your divorce case but for ANY divorce case.

Lawyers are businesspeople and they get hit by economic times too.  Without clients they don't have income.  Without income, many of them can't afford that cushy little porshe or mercedes they drive.  Without income,  they may have to consider making a late payment on their house or their summer home.  Without clients, the lifestyle a lawyer may have developed for him or herself doesn't last long.  So the lawyer needs to bring in clients. 

That may be you!  Wouldn't it be nice to go into a divorce lawyer and give him or her a quick snapshot of your life with your spouse and kids and then he or she tells you how everything is going to be fine, that they've dealt with this scenario a million times before and that if you hire them, then they will deal with all that anxiety for you and it will be over before you know it.  Imagine a lawyer telling you that all this stress you are feeling right now is needless because the lawyer is going to get you a great divorce settlement and that you should let him or her deal with it and your troubles will be over.

Now, here you are all comfortable and feeling that this lawyer is going to take care of all your divorce troubles when he tells you the cost.  If you are especially stressed out, are you likely to agree to provide him or her with a $3,500 retainer at an hourly rate of $250 per hour?  Most people will find a way to do so because the lawyer is offering a solution to divorce stress and anxiety in your personal life.  What is more painful to you?  The stress and anxiety at home or parting with a few thousand dollars.  In many instances the stress outweighs the money. 

Some, but not all lawyers will do this.  Let me give you an example that came up recently but I'll change the players and the issue itself to protect the privacy of the individual involved.

Clyde met with me for a consultation.  Clyde wanted to divorce his wife Cassie.  Clyde and Cassie had a fight and Cassie told Clyde that he could go ahead and divorce her because she'd be set for life.  Clyde didn't know what Cassie was talking about so he asked her.  "Well", Cassie snapped, "I've already been to a lawyer and he already explained to me that you're going to have to pay me alimony and I'll be doing just great and you'll be broke."  Clyde looked at her in disbelief. 

"Really?" Clyde stated in disbelief.  "Yes.", Cassie answered.  The lawyer told me that you'll have to pay me alimony "indefinitely".  Clyde answered, "I don't think that's true Cassie.  You may want to check with another lawyer."

Cassie got angrier.  "I don't need you telling me what to do.  I've already seen a lawyer and I know what is going on and my lawyer said you're going to be paying me alimony FOREVER!"

"I don't think that's how it works Cassie. So you may want to check with another Rhode Island divorce lawyer."  Clyde was urging her now.

"Nope.  I like this guy and he's told me exactly how it's going to go for you and I like that just fine.  So go ahead and serve me with the papers because I don't like the way you're handling the money as it is."

In this situation it isn't hard to see what has happened.  Cassie went to a lawyer for what was probably a free consultation and she told the lawyer what was probably only her side of the story.  The economy is hurting and the attorney figured out what Cassie wanted to hear in order to hire him as her attorney.  So the attorney painted Cassie a very rosy picture and told her exactly what she wanted to hear in order to get her as his divorce client.

Only too often this is the rule rather than the exception.

It is best to remember the old adage.  If something sounds too good to be true. . . it probably is!  The easiest way to get a divorce client is to tell him or her what they want to hear instead of being honest about the process and what may or may not occur.

If a lawyer is pressing you to engage him or her as your divorce lawyer, usually this is a warning sign.  If you don't hear a few things that put you on edge during a consultation because they cause you to worry a little, this is another warning sign.  If you hear everything you want to hear AND you are pressured into retaining the lawyer's services quickly this is a warning sign as well.

On rare occasions when there is an uncontested divorce or when the parties have good respect and communication with each other, then it is reasonable to hear everything you want to hear from the lawyer.  Otherwise, if the lawyer doesn't raise some possible issues that give you cause for concern, then you should consider whether the lawyer is just telling you what you want to hear just to get your business, especially if the lawyer stands to gain a substantial hourly rate off the arrangement.

In the end, be careful.  If you hear exactly what you want to hear when there could be issues of alimony, child support, visitation, placement, retirement plans and real estate division, then you should shop around by selecting lawyers who are known to routinely practice divorce law before the Rhode Island Family Courts.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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RI Alimony Language - Wording is Everything! Part 1

In a Rhode Island Divorce proceeding alimony must be awarded or denied by the Family Court Justice.

Since alimony under Rhode Island law is rehabilitative in nature, more often then not it is waived by one or both parties during the course for most Rhode Island divorce proceedings.  

Alimony that is rehabilitative is awarded by the court based upon the recipients need for financial support while he or she (1) re-establishes himself or herself in the working world with existing skills, (2) re-trains himself or herself with skills sufficient to sustain himself or herself with more modern skills, (3) is unable to care for himself or herself due to injuries, illnesses, handicaps or other circumstances that reasonably warrant the award of alimony for an extended period of time because one spouse is unable to care for himself or herself.

Alimony may be agreed to by the parties in circumstances when an award of rehabilitative alimony may be considered inevitable by the parties and/or their lawyers.  In other instances, a spouse may agree to pay rehabilitative alimony to the other spouse because their is an ability to make such a payment, even if the court would not normally award it, and one spouse wants to help the other spouse for a reasonable period of time until he or she regains a financial foothold on his or her own.

 
Whether alimony is by an award of the court or by an agreement of the parties, it is important that the language used by the court for any award of alimony is accurate pursuant to the agreement of the parties or as intended by the court.

The typical example is when an award of alimony is made for a specific amount of money for a specific period of time.  In this instance, clarity of language is essential!

Assume that Mr. Lawyers has agreed to pay Mrs. Lawyers alimony of exactly $400 per week for a period of three (3) years.    Now let's assume that the alimony award is phrased as follows in both the Marital Settlement agreement of the parties as well as the Decision of the Court.  Nothing else is mentioned about alimony.

    "Defendant Mrs. Lawyers shall pay Mrs. Lawyers rehabilitative alimony of $400 per week for a period of three years."

Here is where accuracy in the language regarding the rehabilitative alimony provisions is crucial when it comes to clarifying the Marital Settlement Agreement and/or the Decision of the Court.  If this is the ONLY alimony that Mrs. Lawyers is to receive per their Marital Settlement Agreement, then Mrs. Lawyers MUST request to waive alimony permanently on the record of the court and Mr. Lawyers or his attorney must make sure that the decision of the court is clarified to state that Mrs. Lawyers waives alimony permanently after that three year period.  Either Mr. Lawyers or his attorney should do so even if it means clarifying to the judge BEFORE the hearing or trial is concluded that the award of alimony should involve a waiver of alimony permanently with the exception of that three year period.

Why is this so crucial in a Rhode Island divorce proceeding?

Well, in the first instance it is significant to Mr. Lawyers.  If there is no permanent waiver of alimony by Mrs. Lawyers other than that three year period, then Mrs. Lawyers has a viable legal argument that alimony WAS NOT expressly limited to that three year period of payments because she DID NOT waive alimony permanently.  Therefore, if things aren't going well for Mrs. Lawyers at that time and Mr. Lawyers still has the ability to pay continued alimony, then Mrs. Lawyers might decide to return to court for another 1, 3 or more years of alimony.

In the second instance, if Mr. Lawyers has hired a Rhode Island attorney to protect his interests in the divorce, then the attorney may have made a crucial mistake because he or she didn't make sure a permanent waiver of alimony was made by Mrs. Lawyers.  Unless there was a miscommunication or some other circumstance which explains why the Rhode Island attorney didn't insure the permanent waiver of alimony was made, then the Rhode Island attorney may find himself or herself on the receiving end of a legal malpractice claim.

Authored By:

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

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Rhode Island Divorce Lawyers - Young Children and Evidence!

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

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

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

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

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

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

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

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

Authored By:

  Christopher A. Pearsall
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70 Dogwood Drive, Suite 304
West Warwick, RI 02893

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Rhode Island Divorce Lawyers 

Can my RI Divorce Lawyer Save My House?

RI Divorce Lawyer Question:

    For the sake of this question I'll call myself William.  I have a 401k that I began 10 years before I got married.  It had about $75,000 in it before Tammy and I got married.  We've been married for the past 13 years and my 401k is up to about $285,000.  I'm concerned about being able to pay my attorney's fees.  I'm also concerned because I want to keep the house my wife and I live in.  The house has been in our family for generations.  I don't think I can get a loan to buy out my wife's interest in the house because my credit isn't so good.  We have about $140,000 in equity in the house.  What can I do to save my house?  One attorney has told me that Tammy will get 1/2 of my 401k and that I can't touch my 401k monies while the divorce is pending.  This doesn't seem fair.  It looks like I'm going to lose 1/2 of everything I built.  I know Tammy is entitled to part of everything but it seems like I'm being left with no options but to lose the house and 1/2 of my 401k.  Is there anything I can do here?

    - William  (Coventry, RI)

RI Divorce Lawyers Answer:

    William, I can tell you that you have more options than you may think.  Ultimately, your 401k plan is the key to resolving your difficulties.  A 401k if much more versatile than a pension, annuity, IRA or any other investment vehicle. 

    First, Check with your 401k Plan Administrator.  Ask whether you are allowed to take a loan up to a certain percentage of your vested 401k balance.  Then confirm the amount of your vested balance and the allowable loan that you could take from your vested balance.  Loans on 401k plans are typical and are usually limited to 50% of your vested balance.

    For the sake of example let's assume this is a typical 401k plan and you can take a loan of up to 50% of your vested balance.  Based upon the numbers you have provided, I would be willing to venture a guess that you may be told that the entire $285,000 is vested and that your maximum allowed loan at 50% would be limited to $142,500.  You should also find out how much interest will be charged on whatever loan you take out and the maximum repayment period.  Of course you will be repaying yourself the interest so this is a considerable benefit to you.  Plus, you can check with your accountant to see if any of the 401k interest is potentially deductible because it is used as a buyout of your wife's interest in the real estate and adds to your adjusted basis in the property.

    Now William, there are a few things to take into consideration but careful planning will eliminate difficulty.  If you are already in the midst of a divorce then your are bound by the Automatic Orders of the Court.  These Orders prevent you from spending, hiding or doing anything out of the ordinary with any assets without the written consent of your spouse.  You may not unreasonably incur any debt that is not in the normal course of your home or running your business except for paying your attorney's fees.

At the outset this looks like it poses a massive hurdle but your case is a bit different.

The Rhode Island Family Court has the power of equitable distribution over the marital estate.  This means the marital assets and debts of the parties.  This does not include pre-marital assets.  You have already disclosed that your 401k had a value of $75,000 before you got married.  This $75,000 is a premarital asset.  These funds are yours.  Additionally, any appreciation relating solely to those $75,000 is also a non-marital asset because they are funds generated purely by virtue of a the pre-marital asset without further contribution from the parties.  Thus if over the 13 years if your 401k averaged 7% per annum return then your $75,000 has roughly appreciated to $180,738.38 making the marital portion of your 401k $285,000 minus $180,738.38 which equals $104,261.62.    The $104,261.62 should roughly be the true marital portion for distribution by the Rhode Island Family court.  It is certainly viable for you and your attorney take the position that this should be undisputed and that $180,738.38 is truly a premarital asset to which your wife is not entitled. 

If you are allowed a 50% loan to vested monies then you have in excess of $90,000 that you can take as a loan for both your attorneys' fees and to buy out your wife's interest in the house.  If your wife's share of the house equity is agreed to be $70,000 then even with poor credit you should be able to secure an equity line of credit or a refinance of the house even if you take out a loan of $40,000 and put $35,000 toward the house and rely upon $35,000 of the house equity to balance out the loan.  This also leaves you with an additional $5,000 for attorneys' fees.

If you take out a loan of $35,000 as suggested, then you still have $145,738.38 that should remain a pre-marital asset that you are entitled to claim as a pre-marital asset.

Keep in mind that this is an arguable position.  Technically, it is a judge's role to determine whether an asset is marital, non-marital, premarital or otherwise exempt from the court's equitable distribution power.  However, when the issue is as clear cut as this in accordance with the statutes, most judges will not penalize an individual for following the advice of his attorney in order to settle a matter on the judge's calendar.

If the judge disapproves of the manner in which you proceed and finds the circumstances to require the court's authority, the most likely conclusion is that the Judge will consider any disproportionate amount as an offset to your spouse against the marital estate.  However, pursuant to the Rhode Island General Laws this is an arguable position that you should be able to take and use without the written permission of the other party or an order of the court, especially if it is used in an effort to settle the case. 

However, if the funds are used for purposes other than settling the case, be prepared for the court to take more appropriate actions to punish you as an abusing party even if you are within your legal rights.

Authored By:

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

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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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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.
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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
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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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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.
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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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