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May 2008

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.

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.)


Nominal RI Divorce by Attorney Chris Pearsall

A Rhode Island divorce attorney can make the divorce process sound simple or complicated.  Whether the attorney makes it sound simple or complicated may depend upon whether the attorney has a particular goal in mind or whether he or she simply is addressing a person with a different level of education who does not want to be spoken down to and therefore is comfortable with the more technical jargon or legalese used in the legal profession. For my part, I believe that it wastes the clients and the attorney's time by complicating the process merely to justify the fee that is usually requested after the process is explained. 

The process of divorce itself is simple. Here it is with all the technical jargon stripped from it.

A)  You prepare the Divorce Packet which consists of these completed documents:              
1) 2 Summons              
2) 1 Divorce Complaint and 1 Copy (after it has been signed and witnessed).              
3) 2 Nominal or Uncontested Track Notice Forms              
4) 2 Automatic Orders              
5) 1 Family Court Counseling Forms              
6) 2 Children of the Marriage Forms              
7) 1 Report of Divorce              
8) 1 Notice of the Parental Video Requirement (if there are minor children of the marriage)              
9) 1 Certified Copy of your Marriage Certificate on file with the Bureau of Vital Statistics

B)  You file all these documents with the Family Court Clerk's Office in the county in which you reside or in which your spouse resides together with a check for $100 for the filing fee.  In Providence County you may have to wait a day or two before they completely file your divorce because of the immense volume of domestic matters they handle.

C)  Once filed you get back various certified documents rom the court which need to be served upon your spouse.

D)  You contact the sheriff's department or a constable ("process server") where your spouse lives and have them serve the certified documents upon your spouse.  The process server will report that he or she has or has not served your spouse on the back of the original summons.  Usually your spouse has been served.

E)  You mail the Summons that has the Process Server's Notice of Successful service on the back to the court where you filed your divorce action making sure to note the "Nominal Date" that appears on the Summons.

F)  You try to reach an agreement with your spouse regarding all aspects of your divorce, including placement of children, visitation, division of assets, division of debt, health insurance, child support, alimony and all other things relating to your marriage.

G)  You appear at the court on the Nominal Date.  If you have an agreement, or if your spouse does not show up and is defaulted,  then you place on the record a short hearing . . . called a Nominal which requires you to place on the record those things that are required by law to establish jurisdiction, a marriage, a breakdown of the marriage, inability to reconcile, alimony or waivers of alimony and the items needed for a proper waiver of alimony and any elements of your agreement with your spouse that you want the court to include in any court order.

H)  Within thirty (30) days after your Nominal Hearing you submit to the Court an Interlocutory Decision Pending Entry of the Final Judgment which outlines the courts findings of fact and decisions as set forth by the judge immediately following the Nominal Hearing and specifically states that all the orders of the court are effective but that the parties are not divorced until the entry of Final Judgment of Divorce is signed by the court.

I)  On the ninety-second (92nd) day after the Nominal Hearing, a Final Judgment of Divorce may be submitted to the Court for approval by the judge and then filed and entered by the court clerk to make your divorce official.  The Final Judgment may be submitted within the 92nd day and the next 30 days thereafter to the judge for approval. It should be noted that this is a bare bones nominal procedure.  It does not sound difficult or particularly astounding to a person looking at it from the outside who is reading this article.

However, as it has been said, the "devil is in the details."

Questions you need to ask yourself are:

1)  What happens if we don't agree on everything by the Nominal Date?
2)  Do you know the effect of incorrectly preparing the Divorce Filing Documents?
3)  Do you know what questions must be asked at the nominal hearing to establish jurisdiction?
4)  Do you know how to ask your spouse questions in order to effectuate a valid and permanent waiver of alimony?
5) If you had an agreement on a subject but did not put it on the record of the court, is it still part of your agreement with your spouse?
6)  Do you know what you are entitled to in the way of marital assets?  Or even what is a marital asset and what isn't?
7)  Do you know how to prepare an Interlocutory Decision Pending Entry of Final Judgment?
8)  Do you know how to prepare a Final Judgment of Divorce?
9)  What happens if you miss the 30 days for entry of the Decision Pending Entry of Final Judgment?
10)  What happens if you miss the 30 days for approval of the Final Judgment of Divorce?
11)  What happens if you accidentally file the documents in the wrong order?
12)  If you reach an agreement with your spouse, should it be formalized?  If so, how? These are only a few of the questions that should be running through your head if you are thinking about handling your own divorce. 

These questions don't even take into consideration the tons of legal questions that you may need to consider, especially whether the court would approve your agreement with your spouse or whether the court would disapprove of the agreement or your requested relief if the judge believes it to be unreasonable or more specifically against existing law or contrary to public policy.

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.)