What is a divorce and what can I expect? DIVORCE: Divorce is the process whereby a husband and wife end their marriage to each other. In Rhode Island, you can also obtain a divorce from bed and board (legal separation). RESIDENCE REQUIREMENTS: In order to file a petition for Divorce, one of the parties in the marriage must actually live in Rhode Island as a “domiciled resident” for one year before the filing of the petition. This requirement prevents people from out of state from coming into Rhode Island for the sole purpose of using the courts here to dissolve their marriage. Residency may be proved to the court by the testimony of two individuals to the effect that he or she knows of their own personal knowledge that you or your spouse have in fact been a continuous resident of the State of Rhode Island for the statutory period. GROUNDS: Under Rhode Island law, may proceed on fault or no-fault grounds. The filing of a no-fault divorce for irreconcilable differences suggests that the parties can settle their differences or disputes before an assigned Court date (usually within 10 weeks). Or that neither party is guilty of any wrongdoing attributable to the breakdown of the marriage. In a contested divorce, there is a suggestion that either the issues are so serious or the determination of what each party is entitled to requires the intervention of the Court. The most common “fault” grounds are adultery, extreme cruelty and continued drunkenness. The parties can also file on grounds that they have been living separate and apart for more than three years. VENUE: The proper county to file a divorce is the single county in the State of Rhode Island where the petitioner lives. SUBJECTS COVERED IN THE DIVORCE: In a divorce action several matters will usually be settled by the court in addition to the divorce itself. These include (1) how you will divide the assets (things that you and your spouse own) and liabilities (the debts and bills that you and your spouse owe) that you acquired during and as a result of your marriage, (2) how you will share parental and financial responsibility for your minor children after the end of the marriage, (3) your continuing support obligations to each other, if any, (4) any obligation for payment of attorney fees for your spouse (or their obligation for the payment of your fees), and (5) the desirability of restraining orders to stop a party from taking certain actions. EQUITABLE DISTRIBUTION: In a divorce, the parties (or the court) will first separate each spouse's non marital assets and liabilities from the marital. Then the parties, or the court, will divide all the remaining assets and liabilities, or the marital assets and liabilities between the parties in such proportions as are equitable and fair. In distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. What factors will the Court consider in making an unequal distribution of the marital estate (assets and liabilities)? The court will be considering all relevant factors, including: (a) the contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker; (b) the economic circumstances of the parties; (c) the duration of the marriage; (d) any interruption of personal careers or educational opportunities of either party; (e) the contribution of one spouse to the personal career or educational opportunity of the other spouse; (f) the desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party; (g) the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of both the marital assets and the non marital assets of the parties; (h) the contribution of each spouse to the incurring of liabilities to both the marital assets and the non -marital assets of the parties; (i) the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction, (j) the intentional dissipation, waste, depletion, or destruction of marital assets before and after the filing of the petition, (k) any other factors necessary to do equity and justice between the parties. the statute. Is my spouse entitled to any of my pre-marital assets that I have maintained separate from the marriage? That portion of the enhancement in value and appreciation of non marital assets that results either from (a) the efforts of either one of the parties during the marriage, or (b) from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both, are marital assets subject to equitable distribution. Are the birthday, anniversary or holiday gifts that I gave to or received from my spouse during the marriage included in "marital assets and liabilities" which are subject to equitable distribution? No. Any gifts given by either spouse to the other spouse during the marriage are not marital assets for purposes of equitable distribution. What about the pension, profit sharing and retirement plans that we own? Are they also subject to equitable distribution? All vested and non-vested benefits, rights, and funds that accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets and subject to equitable distribution. What about the house that I owned before our marriage but later transferred into both of our names during our marriage? The court will probably decide that the house is a marital asset. To suggest otherwise, the party making a claim that some real property is not a marital asset has the burden of proof to prove that it is not. Moreover, caselaw suggests that all assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as non marital assets or liabilities are presumed to be marital assets and liabilities. Such presumption is overcome by a showing that the assets and liabilities are non marital assets and liabilities. What about the things that I owned before our marriage? The general answer is that they are non marital and are not subject to equitable distribution in the dissolution of marriage proceeding. Under the statute all assets acquired and liabilities incurred by either party prior to the marriage (and assets acquired and liabilities incurred in exchange for such premarital assets and liabilities) are non marital assets and liabilities and not subject to equitable distribution. There are exceptions to this general rule such as where a party co-mingled their non marital assets and liabilities with marital assets and liabilities or made gifts of their non marital wealth to their spouse, for example by putting the non marital asset into a joint bank account. If I inherited an asset during my marriage, will my spouse be able to claim part of that in our divorce? Normally not. Assets acquired separately by either party by bequest, devise, or descent (and assets acquired in exchange for such assets) are non marital property and not subject to equitable distribution. However they may become marital property if you made a gift to your spouse or commingled them with marital assets. Child Support: In any divorce proceeding, the court has the power to order either one or both parents who owe a duty of child support to pay support for the child. The shared parental responsibility of a minor child does not prevent the court from entering an order for support of the minor child. Included in the child support calculation are adjustments for other child support Orders, contribution to family health insurance, day care and value to non-custodial parent of naming a child(ren) as a dependent for income tax purposes. Rhode Island uses child support guidelines which presumptively establish the amount that the court shall order as child support. The trier of fact may order payment of child support in an amount different from such guideline amount upon a written finding, or a specific finding on the record, explaining why ordering payment of the guideline amount would be unjust or inappropriate.Factors that the court may consider in deviating from the statutory guidelines amount include: one, Extraordinary medical, psychological, educational or dental expenses , two, Independent income of child, not to include moneys received by a child from supplemental security income, three, Payment of support for a parent which regularly has been paid and for which there is a demonstrated need, four, Seasonal variations in one or both parents incomes or expenses, five, Special needs, such as costs that may be associated with the disability of a child that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines, six, Total available assets of the obligee, obligor, and the child. WAITING PERIOD: Ordinarily the Final Judgment of Divorce may not be entered by the Court until at least ninety (90) days after your hearing. Pitts & Burns
Attorneys At Law
635 Killingly Street
Johnston, Rhode Island 02919-4028 Telephone: (401) 453-2800
Fax: (401) 421-6360
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