Marital Property Settlement Agreements

Enough of the Bias Already! When Family Court Judges Cross the Line!

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Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Sometimes things happen in Family Court that push the brink of what is fair or just or reasonable.  I've spoken up against some of them and I've been threatened with contempt if I say another word even if I have to do so in order to protect my client's rights.

There's nothing more aggravating than when you are found in contempt and taken down to lockup at the courthouse because you asserted your clients rights on the record because the Rules of Evidence require an attorney to do so in order to protect your client's rights in the event of an appeal.

Yet there are times when you witness or are privy to a transcript that shows a blatant judicial bias that is so evident that is exceeds the bonds not only of reasonableness but of judicial discretion.

Not long ago I had the opportunity to be privy to information on a case that was not mine but made my stomache turn.

Wilfred and his wife Gertrude reach an agreement to resolve their divorce.  All Wilfred wants is his engagement ring back and a payment of $15,000 from Gertrude.

Wilfred apparently knew that he's not entitled to the engagement ring back by law but Gertrude still agreed to give it back.  Though it was a short marriage, Gertrude also agreed to pay Wilfred the $15,000 he asked for.

Should be simple right?  Go before the judge and present the agreement, the residency, the irreconcilable differences and you're done in about 10 or 15 mins.

Apparently the judge was upset about Wilfred getting the engagement ring back since the law wouldn't allow for it if they were to go to trial.  Wilfred ended up getting chewed up one side and down the other by the Judge.  Then Gertrude was grilled about whether she got a lawyer's advice and from whom.  The judge even went so far as to legally advise Gertrude that Wilfred wouldn't be entitled to the engagement ring by law.  That's right... the "impartial judge" gave Gertrude legal advice!  Sound a little less than impartial to you?  It sure does to me.  

The judge took a good 40 mins trying to tank this agreement when both parties repeated over and over that this is what they wanted.  The judge not only told the woman that the settlement was inequitable to her but placed it in the court's record that there was a finding that the settlement was inequitable to Gertrude.  Apparently Wilfred asked to talk to the judge or explain the circumstances and he was told that the judge didn't want to hear a word out of him and that "No, he could not explain."

As a divorce attorney I have done hundreds of Nominal Divorce hearings and to say that a proper one should take no more than 15 to 20 mins is generous.  But 40 Minutes?  This guy was dressed up and down and the judge did everything possible to tank this agreement because it was "PRESUMABLY" in favor or the man because the Judge didn't want to hear anything else from Wilfred.

This is wrong!  Yes, here I will be the judge of my own accord.  The judge made a snap decision based upon limited information known to the judge because it was a NOMINAL hearing and the judge literally prohibited the presentation of more facts to show why the agreement may well be equitable.  Instead, the judge acted poorly and out of willful ignorance by rejecting additional information that might have helped the judge's perspective.  

Instead, the judge saw benefits in the agreement to the husband without seeing equal benefits to Gertrude.  I believe this experienced judge would know that PRO SE people often only keep their agreements simple and they don't put the rest.  Details make a huge difference.  Conduct makes a huge difference.  A large amount of commingled funds makes a big difference.  Cleaning out the marital bank accounts makes a great deal of difference.  Yet whatever the circumstances the PRO SE people did not spell it out in their agreement.  It was a NO FAULT/Irreconcilable Differences divorce.  They did not want to point fingers.  

Wilfred and Gertrude had their reasons for the agreement they reached.  They both found it fair and reasonable.  Why"?  Because it was!!!  The fact that the judge chose to ignore the fact that circumstances outside the Agreement that the court did not need to know so that fingers wouldn't be pointed were not included made this case adversarial in the Judge's mind.  Yet the Judge didn't want to hear anymore.  The man was wrong because it merely "looked" like he was getting the benefit of the best part of an agreement.

If the judge knew that Gertrude kept $150,000 of monies Wilfred might have had a claim too, would that have made a difference in his request merely for his engagement ring back and $15,000?

If the Judge knew that Gertrude cleaned out their apartment and left him with nothing except a lease to pay on his own income.  Might that have made a difference?

If the Judge knew that Gertrude was divorcing Wilfred because she took a tea reading class online and the tea leaves told her too and Wilfred had spent all his money setting them up in an apartment and getting her a nice engagement ring only to come home to an empty apartment and bills to pay after a very short marriage.

I could give a million examples the judge could have considered.  What might Wilfred said to the Judge?  I don't know.  But I do know that the Judge didn't want to hear it and because of that the judge determined (and in my humble opinion wrongfully so and in a biased fashion against the man because he was a man) that the settlement was inequitable.  

Personally, I am tired of bias in the courts.  I am tired of ignorance in the courts.  I am tired of judges who do not listen to counsel and do not listen to PRO SE individuals in the courts who merely seek to explain or give additional information so that a judge can make a fair and INFORMED decision.

Judges, while I have respect for many of you.... you are not God!  You are people!  You are not infallible!  If you would listen a bit more before you judge then fairness and equity would be achieved in our court system.  

Yet most of all, I am disappointed that as an overall trend I have seen little change (except with a few select judges or magistrates) in the tenor of the court.  I see inconsistencies in the decisions from day to day.  I see a lack of caring or understanding that you are ruling on significant parts of people's lives and not simply people who are in your court whining because they want things their own way.

Most of all, I am disappointed that I constantly see that many men are not judged equally with women.  I see men judged more harshly, I see men who are doing their very best and yet they are scorned or required to do even more by the court.  I see men losing placement of their children to women who disappear from a child's life for 3 years without an ounce of support only to mysteriously jump back into the child's life and not only ask for placement but get it because of judicial arm twisting telling attorney's that the the mother is going to get placement no matter how hard the father's attorney fights.

I no longer hold my head up high for this profession that I have chosen to be a part of.  I hold my head up high for my own moral integrity and willingness to do what it takes for my client and for speaking out against blatant injustices in our system.

I know it is hard to be a judge.  I cannot imagine the pressure that must come with such a position and the caseload that must be managed.  Yet if it is managed merely to clear one's calendar rather than to achieve justice and equity, then it is managed without regard for the people the court's were intended to serve and assist.

It is my sincere hope that this article is taken to heart by those who read it in Rhode Island, Massachusetts, Florida, etc.... My state is not alone on this issue yet I seem to be one of the few practitioners willing to speak out against a system that is in need of reform, repair, or perhaps just the reminder that the courts are here to help the people with issues that are serious and important parts of their lives.  The people entrust something dear to them to this system and only expect kindness and fairness in return.

Though I rarely bring religion into my postings.  I do pray that our Family Court Judges and Magistrates realize the nature of what each person who comes before you entrusts to you.... an important and often difficult part of their lives that needs your wisdom, kindness and fairness.  God Bless You All!

What is the effect of an Affair in a Rhode Island Divorce Proceeding?

Affairs have different levels of effects in Rhode Island Divorce cases depending upon (1) the timing of the affair in comparison to the length and timing of the affair during the marriage, (2)  the length of the marriage, (3) whether the marital affair caused the offending spouse to accumulate date based on the affair, (4) whether the marital affair caused the offending spouse to deplete the marital assets because of the affair, (5) the length of the marriage before the affair, (6) the level or proof of the affair, (7) the trial judge's concept of fundamental fairness and to what degree the affair should play in the equitable distribution of the marital assets and debts, (8) whether it can be proven that the affair was the actual cause of the breakdown of the marriage, (9) the lengths to which the offending spouse went to conceal the affair, (10) in some instances whether the affair is known to the minor children and how it has affected those children.

You will not find these specific factors enumerated in a Rhode Island Domestic Relations law on divorce cases.  

Affairs, as you can tell, may have a variety of different effects on divorces.  Affairs affect everything from the Minor children in a Rhode Island Divorce Proceeding to the measure of equitable distribution a party may receive of either the marital debts or the marital assets.  The affair in the end must be proven and it should be proven to be the cause of the breakdown of the marriage before a disproportionate share is given based upon the affair.  Yet every case is different.

As a general rule of thumb if you admit to an affair during a divorce and the offending spouse has created debt or depleted marital assets because of the affair, then expect that a settlement will probably involve the offending spouse taking on more of the debt or receiving less of the assets if a settlement is to be reached in most cases unless the nonoffending spouse is extremely generous or forgiving.

My ten (10) practice tips are a practice guideline and as I have stated they are NOT statutory....they are practical based upon my experience over more than a dozen years as a lawyer practicing exclusively in the area of Rhode Island Divorce and Family law.  

It is and has always been my practice and policy to provide down to earth information to both my clients and to the general public. Sugar coating things by relying only on Rhode Island statutes and expecting each judge to rule identically from another when this is not required because of judicial discretion (i.e. Judicial Judgment during a trial) is neither practical nor helpful to divorce practitioners or consumers.

Practical information is more helpful and gives you a better idea on what you can reasonably expect either as a new divorce practitioner or as a client or a person representing yourself.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 

I'm an Affordable RI Divorce Lawyer practicing in Providence, Kent, Washington and Newport Counties and I am here to help you when you need me.

Call me now for your reduced-cost Legal Advice Session at (401) 632-6976.

Feel free to call and find out the major difference between the typical "free consultation" and a Legal Advice Session.  They are like night and day!  You'll be surprised at the difference.