Did You Know Mediation Is Not Just For Divorce?

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Divorce Laws In Rhode Island – What You Should Know

This is an overview of the five Rhode Island Divorce Laws covering the issues that cause the most conflict and anxiety for all divorcing couples. There’s also an overview of a few laws pertaining to divorce procedure and filing requirements and definitions of commonly used legal terminology used in divorce paperwork. For specific legal advice regarding the effect of these laws in your divorce always consult with a licensed attorney.

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  • Dividing Marital Property

    • “In addition to or in lieu of an order to pay spousal support made pursuant to a complaint for divorce, the court may assign to either the husband or wife a portion of the estate of the other.” From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.1. The RI Family Court uses what’s described as the “Equitable Distribution” method to settle marital property disputes if a divorcing couple can’t reach a settlement on their own. The Equitable Distribution method is used to divide marital property fairly in a legally defined sense – it doesn’t automatically divide everything 50/50. Like the awarding of Alimony, the formula is based on the length of the marriage; the parties’ individual income levels and financial contributions to their marital assets; the parties’ education or job related skills; the length of time out of the workforce caring for children and the home and a number of other factors. Pre-marital personal property and assets are taken into account and may be set aside (with certain exceptions) and their property settlement is determined before Alimony is awarded. The majority of divorcing couples begin feeling it’s fair and may even verbally agree to a 50/50 split before their divorce – but then they visit two different attorneys with two different versions of why their marriage is in trouble and they come away with two different legal opinions as to what they’re each entitled to – and both believe they know the truth. This puts them at odds with each other right from the start. The real truth is that if you both want 50% of what you had before you decided to divorce – not 50% of what’s left after you spend a bundle on legal fees fighting in court – the best way to do this is to be on the same page and the way to stay on the same page is to mediate your divorce settlement. Together.
  • Paying Child Support

    • “In a proceeding for divorce, divorce from bed and board, a miscellaneous petition without the filing of divorce proceedings, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted by an administrative order of the family court.” From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.2. Child Support payments are based on the financial resources and income of the custodial parent; the standard of living the child would have enjoyed had the marriage not ended; the financial resources and income of the non-custodial parent and other factors and the legal obligation ends on the child’s 18th birthday or 90 days after high school graduation. The payment amount is calculated using the R.I. Child Support Guidelines which are based on the Income Shares method of determining financial support for children and are revised periodically by the court. Child support is not taxable or tax deductible and can modified by petitioning the court and submitting the necessary evidence for approval of the change. Common examples of reasons for modifying child support are a substantial change in the children’s health care premiums or a dramatic change in one spouses’ employment status or gross monthly income. Any modifications to child support must be approved and granted by the court and child support is monitored by the R.I. Office of Child Support Services. Closely behind Alimony as the most contentious issue between divorced parents, calculating child support has become more complex in recent years because of legitimate modifications and the increased number of divorcing parents agreeing on customized child custody/child placement arrangements. And unfortunately, paying child support has become more difficult for many due to the high unemployment rate and a depressed economy. But make no mistake, family court systems take this issue very seriously and the proliferation of stricter laws and organizations empowered to collect unpaid child support is evidence of this fact. Penalties for non-payment of child support start with mandatory garnishment of wages and can increase to include the seizure of various types of insurance settlements, income tax returns, inheritances and lottery jackpot winnings in addition to the confiscation and sale of financial assets such as real estate, investments, automobiles and more.
  • Deciding Child Custody, Physical Placement and Visitation

    • “In regulating the custody of the children, the court shall provide for the reasonable right of visitation by the natural parent not having custody of the children, except upon the showing of cause why the right should not be granted”. From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16. If a divorcing couple can’t agree on who their child(ren) will live with and be responsible for the day to day decisions and supervision then the court will determine Child Custody based on what it believes is in the best interest of the child. Legal child custody is loosely defined as the day to day care, control and maintenance of a child and may be awarded to just one parent (Sole Custody), or shared by both (Joint Custody) depending on the circumstances. Physical possession, or Child Placement is another aspect of the issue and it’s generally awarded to the parent who has custody, with the non-custodial parent having a visitation schedule. The court is usually flexible about modifying the terms in some way to suit the couple if the divorce is amicable. Today, since more and more divorcing parents want to share not only child custody but also child placement it can make calculating child support more complicated. Divorcing couples wanting shared physical placement and roughly equal time spent with their kids understand that a more balanced, cooperative sharing of child support expenses is necessary instead of the usual custody/visitation – payer/recipient process. However, because the process is more complex, somewhat more difficult to monitor in the event of problems and requires additional calculations to pass muster with the court, the scrutiny of the parties’ living arrangements, their work schedules and their financial resources may be greater. We believe the increase in shared child placement arrangements is due in part to a greater awareness of the benefit of children spending as much time with both parents as possible. The fact that many working mothers are employed in demanding, career level positions requiring more time on the job also factors in – and they need time for themselves too. But we would suggest that the growing use of divorce mediation and the sense of fairness and cooperation it teaches receptive couples – despite their divorce – makes a shared co-parenting plan actually workable.
  •  Awarding Alimony

    • “Alimony is designed to provide support for a spouse for a reasonable length of time to enable the recipient to become financially independent and self-sufficient.” From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16. Alimony, or ongoing financial support payments paid to a former spouse, is awarded by the judge and based on the length of the marriage; the parties’ conduct; their health and age; their education and earning capabilities; the length of time out of the workforce caring for children and the home and many other factors and it is not awarded in every divorce. Alimony is tax deductible for the payer and taxable for the recipient because the IRS considers it a source of earned income. Alimony is arguably the most contentious issue in a divorce because for the payer it’s often piggybacked on top of child support, and for the recipient it’s often vital to their financial survival after their separation. But one of the biggest reasons it’s such a sensitive subject is because the legitimate need and purpose of Alimony is often overshadowed by its use by aggressive divorce attorneys as a tool for the financial punishment and even humiliation of their client’s opponent. In contrast, during our mediation sessions the detailed financial reports we provide our divorcing couples gives a realistic picture of both the need and the ability to pay and this can make all the difference when trying to agree on a fair settlement. The honest, open discussion of this information plus the lack of aggression and courtroom drama makes the subject of necessary Alimony payments much easier to discuss and agree on.
  • Health Insurance Coverage For A Former Spouse

    • “In the event of a final judgment of divorce, whether absolute or otherwise, where one party to the divorce was at the time of the entry of the judgment for divorce a member of a health plan providing family coverage […] or a member of a health maintenance organization […] or any similar health plan […] the person who was the spouse of the party prior to the entry of judgment for divorce may remain eligible for continuing benefits under the plan and health maintenance organization without additional premium or examination if the order is included in the judgment when entered.” From the R.I. General Laws: Title 27 Insurance – Insurance Continuation Act § 27-20.4-1 . Remaining covered under your ex-spouse’s health insurance policy is addressed by the RI State Law quoted above and the federal regulations often known as the “COBRA” Laws. However, if you’re looking for a simple answer as to how the laws apply to you personally, we’re sorry, there isn’t one. You’ll have to do a little research and the best place to start is with the employer providing your current plan if that’s the case. Get a copy of the company’s health insurance benefit policy and the cost schedule for you to remain on the policy after your divorce – in writing – you’re likely to need it during your divorce settlement negotiations anyway. If you both have access to employer-sponsored health insurance coverage you should both obtain this information for a cost and benefit comparison. The company is required by law to assist and inform you of your rights on this matter. For more detailed information one source is An Employee’s Guide To Health Benefits Under Cobra. By law the length of time you can remain on a former spouse’s health insurance policy is generally 36 months but there may be exceptions at the discretion of the court. Consult with an attorney for specific information.

      The Affordable Care Act

      If your health coverage ends for whatever reason when your divorce is final you’ll have 60 days to secure new health insurance to avoid paying a penalty when you file your federal income taxes the following year. You’ll need a document from your prior health insurance carrier confirming the date your old coverage ended and your new carrier will inform the IRS of when your new coverage began. This is important information you will need to file your federal taxes so you might want make sure beforehand you can get that document directly from the insurance company if you need to. It might be worth looking into what health coverage would cost going through your state’s health insurance exchange to compare cost and benefits versus what you’ll spend paying your former spouse’s employer under the COBRA law mandate. You might save money, you might not. Because of the out-of-pocket expense and uncertain nature of eligibility for an ex-spouse, discussions about health care can get pretty tense pretty quickly… As part of our commitment to our divorce mediation clients we make every effort to be extraordinarily creative in helping couples integrate this expense fairly and equitably into their divorce agreement.


RI Divorce Laws Governing Filing Procedure and Other Divorce Issues

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Commonly Used Legal Terminology

Plaintiff – The “plaintiff” is the person initiating the legal proceeding;  the person filing the complaint for divorce.
Defendant
– The “defendant” is the other party to the divorce proceeding; the person the suit is being filed against.
Litigation
– The act or process in and of itself, of bringing a lawsuit before the court; a judicial contest; an action brought in court.
Motion
– A written or oral request made to the court to obtain a ruling; an order directing that some act be done in favor of the person making the request.
Order
– The direction of the court normally made or entered in writing, and not included in a judgment, which determines a point or directs some step in the proceedings.
Decree
– A judgment of a court that announces the final legal ruling on the facts of the case and orders that the court’s decision be carried out; the final decision.
Process of Service
– Usually done by a Constable of the Court, the act of serving formal notification of a legal action taken against someone; example: “being served with divorce papers”.
Continuance
– An adjournment or postponement of an action pending in the court to a later date, granted by the court in response to a motion made by a party to a lawsuit.

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