« March 2008 | Main | May 2008 »

April 2008

The Rhode Island Divorce Attorney - On Hidden Income!

As most people know, Rhode Island Child Support is based on the gross income of the parents of the child(ren) who are entitled to the support.  What is often not clear about child support is that there are any number of parents who would rather avoid paying their allotted share of child support. 

A parent can attempt to do this in any number of ways by hiding their income.  One way a parent may attempt to do this is to hide income in a corporation or some other such entity like a Limited Liability Company.

Naturally, if the parent is able to conceal their true income or a sufficient amount of their income, then the Rhode Island Child Support Guidelines calculation will be tainted and that parent will not be ordered to pay their appropriate amount of child support because the total child support the child(ren) are entitled to will not be correctly calculated and of course this means the parent will not be paying the appropriate percentage the children are entitled to receive.

There are several things you might want to look into to get at the parent's income.

  1. Obtain the personal and, if applicable, the business tax returns.
  2. Obtain the personal and, if applicable, the business banking records.
  3. Obtain any supporting documentation, receipts, invoices and bills that backup the personal and/or business tax returns of the parent trying to hide the income, especially documents relating to any deductions taken by the parent since deductions are the most likely location where income will be hidden by the parent.

There are several ways you could get at these records.  Some may be more effective than others.
To obtain the records you might try the following:

  1. Send a Request for Production of Documents to the parent attempting to hide the income which specifically requests the documents noted above.
  2. Send Interrogatories (Questions to be Answered Under Oath) to that same parent.
  3. Send a Request for Admissions to the parent, attach any documents that you have that you want the parent to admit the genuineness of, and include any facts that you want the parents to admit to.
  4. Have a Subpoena Duces Tecum (Attendance with Requested Documents) issued by a Notary Public directed to the parent and requesting that the parent produce the requested records in court.  In this instance you would want to request everything from the parent listed above for a reasonable period of time.
  5. Have a Subpoena Duces Tecum (Attendance with Requested Documents) issued by a Notary Public directed to the parents tax preparer requesting that the tax preparer produce his or her entire file including receipts and backup relating to personal and the business tax returns.

Keep in mind that getting business records will be more difficult than obtaining personal records, especially if the records relate to a corporation since the court will have a propensity to protect the records of a business entity and consider it as a separate issue entirely and therefore irrelevant to the individual parent's income.

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.)


How to Draft a Rhode Island Family Court Motion.

Preparing a Motion in a Rhode Island Divorce is simply a matter of following a general formula of elements that the court and the judge will be looking for so that it can be recognized as a motion, identified with the correct case, notify everyone as to what you are seeking and why and let the court judge know that the opposing party has had property notice.

1.  The first element is a basic header.  It includes the name of the  state, the county, and the court in which the matter is pending.  In the family court for Providence Family Court the typical header would appear at the top of your motion and would look like the following:

STATE OF RHODE ISLAND                                                                                   FAMILY COURT
PROVIDENCE, S.C.

Note that the header is in all CAPITAL letters with the state and county flush with the left margin and the name of the court flush with the right hand column.  The S.C. after the county name stands for Sheriff's County.  In some instances you may see S.S. or SS. used which is the older colloquialism for Sheriff's Shire.

2.  The second element that appears under the basic header is the case caption.  The case caption contains the names of the plaintiff above the name of the defendant as well as the case number assigned by the court.  The case caption would appear as follows:

JOHNATHAN SMITH

VS.                                                                             CASE NO. P08-0086                                                                

MARY SMITH

Note that typically the case number is placed from the center typing toward the right margin.

3.  The third and simplest element is the title of the motion which is typed in all CAPITAL letters, centered and often underlined.  For instance, a motion for modification of child support would appear as follows:

                                             

MOTION TO MODIFY CHILD SUPPORT

4.   The fourth element of a Rhode Island Divorce or Family Court motion is the body of the motion which includes your request for relief and the basic reason(s) why the relief should be granted.  The typical body of this motion may be in standard type and paragraph form as follows:

        Now Comes the Plaintiff, Johnathan Smith and moves this Court for an Order modifying his child support obligation in this matter.

        In support of this motion the Plaintiff states that there has been a substantial change in circumstances and/or incomes of the parties since the last time the child support obligation was set.

5.  The fifth element is the closing of the motion which contains the parties name and either the name, address and telephone number of the party or the party's attorney.  It also contains the hearing date for the motion which would be obtained from the clerk of the judge who would be hearing the motion.  It would appear as follows if Johnathan represented himself (Pro Se)

                            JOHNATHAN SMITH
                            PRO SE

                                  ________________________

Johnathan Smith         
15 Mantel Avenue
Coventry, RI 02819
(401) 467-2392

6.  The last element is the certification.  If this is an initial motion and the case has been either closed or inactive (without a pending court date scheduled) then you will have to create summonses and have your spouse served as required by law.   This is a topic beyond this short article posting.   However, what I am referring to here is when a case is active and there is a pending court date in the case that you are filing the motion in, then you must provide a certification that tells the court that you served the opposing party by mail (or more appropriately their attorney if they are represented by one).  It appears below the closing and looks like the following and must be signed by the person doing the mailing (i.e. making the service):

CERTIFICATION

     I certify that on April 15, 2008 I served a copy of this motion by first-class mail upon Mary Smith at 88 Dupont Lane, Providence, RI  02903

                                        _______________________________

For those who must represent themselves in family court it is my hope that this tutorial on motion drafting has been helpful and that the formatting tools used to create this article have not made it appear too disjointed.

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.)