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July 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Authored By:

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

Call (401) 632-6976 Now for your low-cost consultation.
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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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
| Legal Scholar | Pearsall Law Associates | Rhode Island Divorce Attorneys | Rhode Island Divorce Lawyers | TheModernMom.com| WholesaleQuiltBatting.com | Mesothelioma-Cancer-Articles.com