JUST THE FAQS
How do I begin the process of obtaining a divorce from my spouse? The first step to is to consult with an experienced family law attorney to help you file a complaint in the Rhode Island Family Court. Once the complaint is filed it must be served properly upon your spouse.
What are the grounds for divorce in Rhode Island? In Rhode Island the grounds for divorce can be either fault based or non-fault based. The non-fault based grounds are: (1) irreconcilable differences which has caused the irremediable breakdown of the marriage; and (2) the parties have lived separate and apart from each other for the space of at least three (3) years, whether voluntarily or involuntary. See R.I.G.L. §§ 15-5-3.1; 15-5-3. The most common basis for divorce in Rhode Island is the non-fault ground of irreconcilable differences. The fault based grounds are stated in R.I.G.L. § 15-5-2 and include: (1) Impotency; (2) Adultery; (3) Extreme cruelty; (4) Willful desertion for five (5) years of either of the parties, or willful desertion for a shorter period of time in the discretion of the court; (5) Continued drunkenness; (6) The habitual, excessive, and intemperate use of opium, morphine, or chloral; (7) Neglect and refusal, on the part of the husband to provide necessaries for the subsistence of his wife; and (8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.
Who is eligible to get divorced in the State of Rhode Island? Rhode Island General Law § 15-5-12 requires that no complaint for divorce from the bond of marriage shall be granted unless the plaintiff (the person filing for divorce) has been a domiciled inhabitant of Rhode Island and has resided in the state for a period of one year next before the filing of the complaint; provided, that if the defendant has been a domiciled inhabitant of this state and has resided in this state for the period of one year next before the filing of the complaint, and is actually served with process, the requirement as to domicile and residence of the plaintiff is deemed satisfied and fulfilled.
What can I expect to happen when I go to Family Court on my divorce case? In most cases the divorcing couple is able to come to an agreement regarding the terms of their divorce which include assignment of real and personal property, assignment of debts, child custody and support, child visitation, provisions for health insurance, name changes, and distribution of retirement accounts. In some instances the parties to a divorce cannot reach agreement and a divorce case proceeds to a trial where a judge will make a ruling defining the terms of divorce. It is extremely important that a party to a divorce has legal representation, as the procedure and negotiation of the terms of divorce are not something that can be properly completed by an individual who is not trained or experienced especially when children and substantial financial issues are involved.
My spouse and I are in the process of a divorce who will have the right to make decisions regarding our minor children's lives? If you and your spouse agree that each of you would have an equal right to participate in the major decisions regarding your children's lives then the court will issue an order or judgment giving both of you joint legal custody. The major issues include, but are not limited to, educational issues, major medical care, religious affiliation, and decisions regarding their general welfare. If, for some reason, one parent believes that the other parent is unfit because of serious substance abuse issues, absence from the child's life, serious criminal history, or other major problems the court may award sole custody to the fit parent. Sole custody, gives one parent sole authority to make all decisions concerning a child's life. It essentially stops the other parent from making any decisions regarding the child's life. The court takes into consideration certain factors to determine custody issues which are enumerated in the case of Pettinato v. Pettinato, 589 A.2d 909 (R.I. 1990). See http://www.leagle.com/decision/19901491582A2d909_11482. Typically, in Rhode Island the parents are awarded joint custody of the minor children unless there are serious issues, as previously noted, concerning the fitness of a particular parent.
In a divorce action how does the court determine with whom the minor children born of the marriage will reside? If the parties can agree where it would be best for the children to reside the court will order one of the parents to have legal physical possession. If the parties fail to agree where the children will live the court will make a determination based upon the "best interests of the children." Again the court takes into consideration certain factors to determine placement issues which are enumerated in the case of Pettinato v. Pettinato, 589 A.2d 909 (R.I. 1990). See http://www.leagle.com/decision/19901491582A2d909_11482.
What are my rights to see my if the divorce decree awarded my spouse the right to have my children live with her? In Rhode Island the parent who does not have physical possession of the minor children will have all reasonable rights of visitation. And, the non-custodial parent has strong rights of visitation and will be given an ample amount of visitation if requested.
In a Rhode Island divorce which parent is responsible for paying child support on behalf of the minor children, and how much child support is required by law? The parent who does not have physical placement of the minor children is required by law to pay child support to the other parent with whom the children live. The amount to be paid is based upon the gross income of the parties and is calculated according to a formula provided by the Rhode Island Child Support Guidelines which can be found at http://www.cse.ri.gov/documents/RIscheduleJune2012.pdf.
How long do I have to pay child support for my minor children? The child support obligation in Rhode Island runs when the child is emancipated. Emancipation occurs when the child turns 18 and graduates high school, but if the child does not graduate high school child support will continue no longer than the child's 19th birthday. There is an exception to this rule for a child with a severe physical or mental impairment still living with or under the care of a parent, beyond the child's emancipation as defined above. The court considers the following factors when making its determination to extend the child support obligation: (1) the nature and extent of the disability; (2) the cost of the extraordinary medical expenses; (3) the ability of the child to earn income; (4) the financial resources of the child; (5) the financial resources of the parents; (6) the inability of the primary caregiver of the child to sustain gainful employment on a full-time basis due to the care necessitated by the child. The onset of the disability must have occurred prior to the emancipation event. See R.I.G.L. 15-5-16.2(b) at http://webserver.rilin.state.ri.us/statutes/title15/15-5/15-5-16.2.HTM
How does the court determine whether or not my spouse is entitled to alimony? Generally, in Rhode Island alimony is rehabilitative. Therefore, a spouse will be awarded alimony if he or she needs financial assistance to return to the work-force. A typical situation when this occurs is where one spouse may leave the work-force to care for the minor children and has not worked for a significant amount of time and needs training and time to obtain the skills to obtain employment. In certain instances, however, the court has the discretion to award alimony to a spouse who is incapable of being rehabilitated for employment and is disabled. See R.I.G.L. 15-5-16 at http://webserver.rilin.state.ri.us/Statutes/title15/15-5/15-5-16.HTM. Also see Perreault v. Perreault, 540 A.2d 27 (R.I. 1988) https://www.courtlistener.com/ri/bGmz/perreault-v-perreault/ ; Wrobleski v. Wrobleski, 653 A.2d 732 (R.I. 1995) at http://law.justia.com/cases/rhode-island/supreme-court/1995/653-a-2d-732.html
What divorce documentation do I receive after my divorce is finalized? Within thirty (30) days after the final court proceeding your divorce attorney will file with the Rhode Island Family court a document called a Decision Pending Entry of Final Judgment. This document states the terms of divorce and is a temporary judgment of divorce which can be challenged prior to the entry of a final judgment of divorce for various reasons, but is typically not challenged. Within ninety (90) to one-hundred twenty (120) days after the final court proceeding your divorce attorney will file a Final Judgment of Divorce with the Rhode Island Family Court. Again, this contains the terms of your divorce and is the last document to be filed. The Final Judgment of Divorce is enforceable in the Rhode Island Family Court. In addition, in some divorce cases the parties enter into a Property Settlement Agreement which is a separate and distinct contract from the Final Judgment.
How does a Property Settlement Agreement differ from my Final Judgment of Divorce? A property settlement agreement is a contract and is enforceable pursuant to the laws of contract. A property settlement agreement can be instrumental in protecting the interests of a divorced spouse. For example, if a property settlement agreement states that alimony is non-modifiable, a former spouse seeking to change the terms of alimony subsequent to the divorce will be prevented in accomplishing that change. Alternatively, If the parties had failed to enter into a property settlement agreement and only had a Final Judgment of Divorce then alimony by law is modifiable and a party seeking to modify the terms of alimony may be able to successfully change the terms of alimony.
How long does it take for a person to get divorced in Rhode Island? After the complaint is filed, and the defendant is served, approximately six weeks later the case will be scheduled for a initial date in court called a nominal date. At the initial hearing date, if the parties are in agreement on the terms of divorce, a brief hearing is held and the parties can go forward with the divorce proceeding. After the hearing a temporary order is entered within 30 days, and then between 3 and 4 months a Final Judgment of Divorce is entered if there is no objection and the divorce is final. If the divorce is contested and there are issues to be worked out the divorce usually occurs within a year.
What if I have a court ordered divorce and my former spouse violates the terms of the Judgment of Divorce? In order to enforce the legal terms of your divorce an experienced family law attorney is necessary to advise an individual of the remedies available. That attorney will file the necessary motions with the Rhode Island Family Court to enforce the divorce judgment. Typically, these motions include enforcement or modifications to child support obligations, child custody, physical placement of minor children, visitation of children, alimony (otherwise known as spousal support), distribution of marital property, and various other issues that arise to enforce or modify the terms of divorce.
What should I do if the Rhode Island Department of children Youth and Families ("DCYF") has alleged that I have not properly cared for my child? There are times when a parent may need help to defend allegations of child abuse or neglect filed by DCYF. When a parent is charged with these allegations the Family Court may place custody of the children with DCYF, or with good advocacy they may be convinced that the children should remain with a parent. If DCYF remains involved in this court process Rhode Island law provides that DCYF must make reasonable efforts to reunite a family whose parents have been charged with abuse or neglect. These reasonable efforts generally consist of social services designed to address the issues causing familial problems such as family or individual counseling by a psychologist or social worker. Failure to have proper representation during the course of these proceedings can result in severe consequences to a parent which can include termination of their parental rights and permanent placement of their children with foster parents.
What should I do if my child has been charged with a crime? Immediately contact my office and schedule a free consultation. Proper legal representation in a juvenile proceeding is essential in protecting the legal rights of a child facing state criminal charges to have the best chance of obtaining the least restrictive sanction including dismissal of the case. If your child is charged as a juvenile (a person under the age of eighteen) he or she will be brought before the Rhode Island Family Court for a hearing to determine their innocence or guilt. If the court finds that your child committed the alleged crime he or she can face a range of sanctions from probation, suspended sentence, placement in appropriate treatment facilities, or incarceration in the Rhode Island Juvenile Detention Center. Also, a child who has a juvenile record must ensure that subsequent to the adjudication the record is sealed and/or expunged pursuant to Rhode Island Law.
Can my child be tried and treated under the law as an adult if he is charged with a crime? Some juveniles who were age 17 and committed a crime between the dates of July 1, 2007 and November 8, 2007, were considered adults because the Rhode Island legislature passed a statute making seventeen year olds adults for purposes of the criminal law on July 1, 2007. That law was repealed on November 8, 2007. There are however, still instances where a child who committed a crime when under the age of eighteen can be brought before the Rhode Island Superior Court as an adult. This arises when the child has committed a crime that in the Attorney General's discretion warrants adjudication as an adult. Proper legal representation is essential in this situation to protect the child's legal rights.