Rhode Island Divorce and Family Law Attorney | Attorney Christopher Pearsall

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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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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Rhode Island Marriages and Engagement Rings

Engagement rings in Rhode Island Divorce proceedings are not typically a source of contention between the spouses.   Typically an engagement ring is not considered a marital asset. Therefore it is not subject to the Rhode Island family court's power of equitable distribution (i.e. power to divide the marital portion of assets between the divorcing parties).  In fact, the vast majority of cases where the wife's engagement ring is seriously debated occurs usually when the engagement ring has a substantial value and something changed about to the ring after the marriage.

The theory is understandable.  A marriage is a contract though it is seldom seen in that light by the parties.  For instance, when a man asks a woman to marry him and offers an engagement ring, the ring is the consideration for one contract.  In that case, the man is asks the woman to marry him and offers the ring to essentially "seal the deal" so to speak.  However, it then falls to the woman to decide if she will say "yes" and accept the offered ring.  If the woman says "yes" and accepts the offered ring, then a contract has been formed.  The man has made and offer and in return for that offer has asked for a promise that she will marry him and an acceptance of the ring.

Let's assume that the man no longer wants to marry the woman and changes his mind.  The man has now broken the engagement contract.  If he demands the ring back, the woman has no obligation to return the ring so long as she has still been prepared to marry the man and hold up her end of the "bargain."

However, if the woman no longer wants to marry the man and changes her mind, she is obligated to return the ring because she has broken their engagement contract and she is generally not allowed to profit from her own breach of the engagement contract which is exactly what would occur if she were to break the engagement contract AND keep the man's offered ring as well.  If it were otherwise, this would lead to women accepting men's proposals just to get the ring and not because they even intended to marry the man and simply tell the man she has changed her mind shortly thereafter and keep the ring.

When a marriage occurs, it is a separate and distinct contract made at the time of the ceremony where both parties perform as they promised rather than simply exchanging an offer for a promise.  In that case the wedding rings themselves seal that contract of marriage as well as the promises they make to each other for the duration of the marriage. 

Therefore, if nothing happens to the engagement ring during the marriage, it should be considered pre-marital or at least non-marital in nature because it existed and belonged to the woman before the marriage contract was formed.  Thus, it should not be within the power of the Rhode Island Divorce and Family Court to distribute it.  It was the woman's property before the marriage and simply wearing the ring during the marriage does not make it marital in nature.

The issue arises when something happens to the ring during the marriage.  Consider for example that a stone in the ring becomes chipped and as a result it loses value.  Let's say that marital income from either the husband, wife or both is used to purchase homeowner's insurance.  Now, if an insurance claim is made for the damage to the ring and funds received from that claim are used to replace that stone (i.e. diamond, etc. . ) now, marital funds have been used to repair or replace a part of the ring.  Once marital funds are used in any way on the ring, the previously pre-marital ring now is commingled with marital income (which is a marital asset) and they now convert the character of the ring from pre-marital to marital.

Other arguable examples that would change the ring to a marital character are:

1)  Adding new stones using marital income.
2)  Fixing the setting using marital income.
3)  Pledging the ring as collateral for something marital being purchased as a couple.

Authored By:

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

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

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Rhode Island Divorce Question: Engagement Ring

Question:

My husband gave me a $20,000 engagement ring when he proposed to me.  It's the original ring he gave me and no changes have been made to it.  We are now getting divorced in Rhode Island.  Is my engagement ring part of the marital estate.  My husband says I owe him $10,000 from my ring.

Answer:

Based on what you have included in your question, your husband is incorrect.  Your engagement ring should not be included in the marital estate and should not be considered by the family court judge in equitably distributing the marital estate.  An engagement ring was a gift from your future husband to you in exchange for your promise to marry him.  You married him and therefore your engagement ring was a gift that existed before your marriage.  If you had broken your promise of marriage and had not married your now husband you would have had to return the ring to him.  Under these circumstances however, the engagement ring should be considered your separate property.

 

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.
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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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Gifts - Are they exempt from the Marital Estate or Not?

In a Rhode Island Divorce proceeding if you have an attorney, he or she would look to the Rhode Island General Laws, particularly Title 15-5-16.1(b).

In fact, the last sentence of that section addresses 'gifts' and states,

"The court shall not assign property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage."

Of course our jobs as Rhode Island Divorce attorneys is to argue for our clients using interpretations, case law or other law that may appear contradictory to the very law that is beneficial to the other spouse.

So, if it is a gift from a third party to either party then it is pretty much a "no brainer", right?  Well, being a full-time family law attorney I will play devils advocate and say . . . not really! 

Now the ....Why of my answer! 

Assume the gift is a boat.  Not a small boat.  A large boat with three sails, dual motors, and four bedrooms, a kitchen, bathroom, and the works.  Let's say daddy is rich and he gives it to his little girl, Mayford, during the marriage.  Yet this boat needed to be stored in the winter time, it needed to be cleaned before storaged, it needed to be trucked to a storage facility large enough to handle it.  The boat needed to be treated each year, the engines needed to be tuned each year, it needed to be maintained, etc..  All of this costs money and Mayford's husband Jim pays for all these things that are indeed necessary for the boat to be usable, to be protected as an asset and without which they would have to sell the boat because Mayford can't afford all the extras that come along with the maintenance, storage and upkeep of the boat.

Suddenly it comes divorce time and Mayford's Rhode Island divorce attorney claims the boat is a gift under Rhode Island General Laws, particularly Title 15-5-16.1(b) and therefore the court has no power to do anything with boat.  It is simply Mayford's boat, plain and simple.  It doesn't matter that Jim paid over $23,000 for the upkeep, cleaning, housing, maintenance and protection of the boat.  At least that's what Mayford's attorney says.

Assume you are Jim for a moment.  Would you want your Rhode Island Divorce attorney to just sit there and do nothing?  Somehow I don't think so.  Good for you!  You'd expect your divorce attorney to get up there just like I would and argue that Mayford changed the nature of that gift when she asked Jim to pay for all the extras that were necessary to keeping that little luxury and it lost its status as a gift a long time ago.  We'd be arguing that she commingled the marital estate, including Jim's earnings, her earnings, their time on the boat, the time spent arranging for all the things for that little gift with the marriage so much that it wasn't a gift anymore at all.  We'd be arguing that it would have been a hauled away piece of junk with no value at all if Mayford hadn't encouraged Jim and the kids that it was the family boat and had Jim pay for all the necessities out of his earnings.

So when is a gift a gift under Rhode Island General Laws, particularly Title 15-5-16.1(b)?  When does it cross the invisible line into being an asset of the marital estate?  The truth is, I can't answer that for you.  It's all about arguments that can be made and that's what experienced divorce attorneys are for.  We make these arguments and we try to make sure the Judge truly does get an impartial look at things and make fair decisions given the circumstances. 

After all, there is no law I'm aware of that says a judge can't find that a gift has been managed in such a way that it is now a part of the marital estate.  Since this is omitted from that statute and is not addressed elsewhere, doesn't it remain in the judge's discretion?

Authored by:

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

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

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

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