Divorces
(The below applies specifically to Rhode Island law. However, this
information is not intended as a substitute for legal advice, even in Rhode Island, and
you should not make any decisions based upon it. For information on the applicable law of
your state, please contact us by snail mail, e-mail, or any other method with which you
feel comfortable, for a referral and free consultation with an attorney in your area. If
you prefer, we may be able to arrange for a telephone consultation.)
"Pro se" or Self Representation
You may represent yourself in a divorce, if you choose. It is not
permissible in Rhode Island for an attorney to represent both
parties in a divorce. Therefore, it is common for one party to represent
themselves "pro se" and the other party to be represented by an
attorney in cases where there is no contest and the issues are relatively
simple. With at least one attorney involved, the parties are reasonably
assured of obtaining their divorce without running into problems because the
correct forms were not filed or the required information was not presented to
the judge. However, if the parties do not wish to retain an
attorney at all, our office will prepare the proper forms and provide a
checklist for the hearing. The fee for this service is two hundred and
fifty dollars. We do not offer advice for this service, just guidance
and document preparation. We would prefer to provide full
representation, but we realize that some people cannot afford the cost of full
representation.
Grounds
In Rhode Island, most divorces are granted on the grounds of irreconcilable
differences. Irreconcilable differences can encompass all sorts of differences that may
cause a breakdown of the marriage which is beyond repair. The other most common grounds
for divorce are adultery, abuse and substance abuse. In order to obtain a divorce in Rhode
Island, you or your spouse must have resided in the state for at least one year. There are
exceptions to this rule, for instance, in the case where one party is in the military, but
lived in Rhode Island before they enlisted.
Marital Assets
Marital assets and debts are supposed to divided equally, absent wrongdoing on the part
of one of the spouses. (There are other considerations, as well, such as the length of the
marriage) Marital assets and marital debts consist of property or debts acquired during
the marriage, or acquired before the marriage, but given as a "gift" to the
marriage by one spouse by placing the title of the property in the names of both spouses,
or transferring it into the name of the other spouse.
In addition, an increase in the value of the property (e.g., real estate, pensions
plans, etc.) that was owned by one spouse before the marriage is a marital asset. For
example, if a husband owned a house before his marriage that was worth $100,000.00 at the
time of the marriage, and its value increased to $150,000.00 by the time of the divorce,
the $50,000.00 increase in value would be considered a marital estate and the wife would
be entitled to $25,000.00, absent other factors. One must not rely upon whose name a
property stands in to determine whether or not that property belongs to the marriage or
the individual.
Alimony
In Rhode Island, alimony is generally rehabilitative. This means that it may be
granted to a spouse for a short, definite period of time, to a spouse who has been out of
the job market to give the receiving spouse time to get the education or job training to
get back into the job market. In some cases, the court may grant alimony for an indefinite
period due to the age or health condition of the spouse, or some times even due to the
malevolent behavior of the other spouse.
Visitation and Custody
It is usual, in Rhode Island, for a couple to receive joint custody of their children,
with physical placement with one of the parents, and some form of visitation with the
other. Joint custody allows each parent a say in the upbringing of the children. It also
allows each parent the authority, for instance, to authorize an emergency medical
procedure, if necessary. It is possible, depending on the fitness of the parents, that
sole custody may be awarded to one parent and no visitation, or modified visitation to the
other. The issues of visitation and custody remain within the jurisdiction of the court
even after a divorce, and the terms may be changed if the circumstances change.
Child Support The parent with the physical placement of the child or children must
receive child support. This is not a right that may be waived by the spouse with
placement, since child support is intended for the benefit of the child. Child support is
calculated by a formula. The formula uses the gross incomes of the parties, with some
mandatory (e.g., child related health insurance) and discretionary (day care costs)
adjustments. The issue of child support also remains with the court and may change if
circumstances change.
Contested or Uncontested
An "uncontested" hearing for divorce is one in which the parties are in
agreement as to the terms of the divorce. The parties, together with one or two witnesses,
testify at the hearing. Usually, each party is examined by their own attorney only, and
the attorney asks them leading questions with the intention of eliciting the parties'
agreement through testimony. Two witnesses need to testify that at least one of the
parties lived in Rhode Island for at least one year prior to when the complaint for
divorce was filed. One witness needs to testify that they were aware of the fact that
there were problems with the marriage. Often, the judge will allow one of the parties to
testify as one of the witnesses, so it is only necessary to have one witness testify other
than the parties themselves. While the parties may have to wait as long as a few hours for
their case to be heard, the actual hearing may take only five to thirty minutes depending
on its complexity.
A "contested" hearing for divorce occurs when the parties have at least one
issue that they cannot resolve themselves, and it becomes necessary for the court to make
the decision. This hearing will be much more formal, may require many more witnesses, and
may take anywhere from a half an hour to several weeks, even months.
Just because you may have an uncontested hearing, doesn't necessarily mean that your
divorce was uncontested. You may have had contested hearings for temporary orders
pertaining to visitation, custody, contempt, etc., before you actually have your
"uncontested" hearing. Therefore, if your fee agreement with your attorney
(which should always be in writing) is dependant on whether or not your divorce is
uncontested, be certain that you and your attorney are operating under the same definition
of "uncontested."
The Hearing and Decree
Whether a couple has a contested divorce or uncontested divorce, there must be a
hearing or trial for the divorce to eventually become final. It is not possible for a
couple to "just sign papers" to obtain a divorce in Rhode Island.
If the case is contested, the case will be heard when the parties agree that the matter
is ready for trial, or a court orders that the matter be set for trial upon the motion of
one of the parties. If the matter is uncontested, the matter may be assigned for hearing
after 60 days after the complaint for divorce is filed. After the hearing or trial, an
Interlocutory (temporary) Decree is filed with the court which sets forth the findings of
fact that the judge made, and the decision. After 90 days (with some exceptions) the Final
Decree may be entered. The couple remains married until the Final Decree is entered.
If you're not from Rhode Island, and you need a good matrimonial attorney from your
state, please contact us and we will be happy to refer you to an attorney from your area
that will help you. You may use our Client Intake Form if you
wish.
