This article explains the Rhode Island divorce process from pre- filing considerations through trial including Rhode Island divorce law strategy.
Finding a Rhode Island Divorce attorney/ lawyer
The first step in obtaining a divorce from your spouse is finding a Rhode Island attorney who you are comfortable with. Many attorneys give free initial consultations while others charge for the first consult. I have always taken the position that the initial consultations will be free.
It is important to ask the proposed lawyer about his or her experience and qualifications to handle your case. It is also crucial to determine the hourly charge and the amount of any initial fee or retainer. Article By David Slepkow (401-437-1100)
Cost of Rhode Island Divorce
It is often impossible to determine how much a divorce will cost from beginning to end. However, it is a good idea to get an educated estimation of the eventual fee. This will never usually be more than a estimation because the cost of the divorce usually depends on several factors. Those factors could include how quickly a settlement is reached, the number of motions that each party will file, the amount / nature and complexity of assets to be equitably divided, the amount of documents involved in the case, the animosity of the parties to each other, the waiting time while you are in court and many other potential issues.
The Golden Rule is that the longer it takes to reach a settlement the more the divorce will cost because the lawyers will spend a lot more time working on the case. If there is no settlement and the case goes to trial or the day of trial, the divorce could get very expensive. If everything is agreed or nearly agreed to and the parties are relatively amicable then the divorce should take a lot less time and therefore be much less expensive.
Uncontested divorces in Rhode Island should be much less expensive then contested divorces. However, there are many different types of uncontested divorces. There are uncontested divorces with no real assets and uncontested divorces with assets to divide. If the divorce is uncontested and there are assets then the lawyer may need to prepare a property settlement agreement, deeds, qualified domestic relation orders etc. Therefore, the cost of an uncontested divorce could vary depending on the circumstances. For example if a lawyer has to draft a property settlement agreement , the lawyer will devote more time to the case.
I believe that a fair price for an uncontested divorce from soup to nuts in Rhode Island with no assets and no property settlement agreement is about $800 flat fee plus costs. The typical costs are a filing fee of $100 and service of process fees of approximately $40.
Intake process and drafting Rhode Island divorce Documents
After you have retained the lawyer there is typically an intake process in which the lawyer gets the basic information so that he or she can properly represent you. The lawyer typically drafts the divorce documents and you sign them in front of him/her or another notary. These documents include a divorce complaint, DR(6) financial statement, statement of children of the marriage, counseling statement, report of divorce, summons and automatic divorce order etc. It is important that the DR6 form otherwise known as financial statement is accurately filled out.
There are many important decisions that may need to be made before you file for divorce in Rhode Island. Strategy is crucial in many instances!
Should I file a motion for temporary Orders in RI?
In some cases, the attorney will file a motion for temporary orders when the divorce complaint is filed. A motion for temporary orders should be filed if the husband or wife is in need of temporary resolution of issues while the case is proceeding. These temporary motions typically request temporary child support, payment / contribution to daycare , contribution to medical bills, alimony, payment of household expenses, payment of the mortgage, taxes and insurance.
A motion for temporary orders can also address child visitation and child custody issues related to the minor children as well as issues concerning exclusive use and possession of the marital home. The temporary motion can also request temporary orders concerning: restraining orders both financial and personal and a myriad of other temporary issues. The motion for temporary orders will typically be heard by the Court within 30-40 days of the filing of the complaint for divorce.
If no temporary orders enter then there is no legal obligation of a spouse to pay anything while the case is proceeding until there is a decision by the judge or the parties sign a property settlement Agreement. If there are no temporary orders, the financial issues, visitation and custody issues will be up to the parties to figure out while the case is proceeding without the benefit of a court order.
Should I file an emergency motion in A Rhode island divorce?
If there is an emergency in which irreparable harm will be caused if the party has to wait for a court date, then an emergency motion should be filed with the complaint. An emergency motion must either be verified under oath or be accompanied by an affidavit. The attorney will bring the emergency motion to the proper judge and ask for an ex parte order. Ex parte means that the other side is not present to object. The Rhode Island judge will only consider the affidavit and documentation before him. If the judge signs the emergency order than it will be served on your spouse by the constable along with the divorce complaint.
These types of emergency motion typically deal with issues concerning abuse of a child, dissipation or unreasonable spending of marital assets, domestic violence, child abuse or a plethora of other potential emergencies. If there is domestic violence involved in which you are in imminent fear of physical harm or have been abused or threatened with abuse please discuss with the attorney the benefits of filing a separate case called a Complaint Protection from Abuse! Please note that the Complaint Protection from Abuse is very different from an Emergency motion.
The timing of whether the divorce or Complaint Protection from Abuse case is filed first or whether they are filed simultaneously could be crucial to your case.
If an emergency motion is granted and emergency orders enter then a hearing will be set approximately 20 days to determine if the order should stay in effect while the divorce case is proceeding. At that hearing your spouse has an opportunity to contest the motion and tell his or her side of the story. At that hearing, the Court will determine whether the emergency relief will stay in effect while the divorce case proceeds.
Nominal or Contested Track?
When a Rhode Island divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in their initial divorce filing designates the track they desire. The vast majority of divorces filed in Rhode Island are placed on the nominal divorce track. A designation on the “nominal track” does not necessarily mean that the divorce will be uncontested. It usually means that the party who filed believes that the case can be settled relatively quickly or wants the divorce to be settled relatively quickly.
Answer to Divorce Complaint
The defendant must file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. If the Defendant does not answer the case he is subject to being defaulted. A default is when the defendant does not answer the case on a timely basis and the Plaintiff will usually get all of the relief that he or she requests.
Nominal divorce
If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing for divorce. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the divorce is not settled by the nominal divorce date then the case will automatically be changed to the contested track
If the matter is not settled by the nominal court date and both parties want to try to resolve the remaining issues in court and believe it is possible to resolve the remaining issues, then the parties can attempt to settle the case in the hallway or conference rooms in the courthouse and put the case through as a nominal uncontested divorce on that date.
If the defendant has not filed an answer, it is dangerous for the defendant to not appear in court at the nominal court date based on representations made by the other party .
I have seen numerous occasions when a souse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the defendant is defaulted and the other spouse gets 100 percent of the assets of the marriage.
On the date of the nominal divorce hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve the remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the judge that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of the next pretrial conference date.
If the parties ask the clerk to hold the matter they will usually get a substantial amount of time to negotiate the remaining issues in the hallway. Upon settling all the remaining family law issues which may include issues of property division, child support, child custody, child visitation, alimony, contempt issues, restraining order issues etc the clerk should be informed that the case is now ready nominal. At that point the clerk and judge will put you back on the list of cases ready for the nominal hearing
Pursuant to Rhode Island General Law a divorce cannot be resolved without a nominal divorce hearing. At the nominal divorce hearing certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify. If you don’t have the required witness your case could be delayed or even dismissed and you may waste your time attending court.
For a detailed explanation of whether or not you must have witnesses to testify on your behalf and the residency requirement for filing a Rhode island Divorce please go to my Ezine article “”Rhode Island Divorce Law FAQS How Long Until It’s Over? Residency Requirements & No Fault Divorce.” EzineArticles 14 March 2007. 15 July 2007 .
Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the Rhode Island divorce process without Rhode Island divorce and family law lawyer.
If the case was originally placed on the contested track calendar, then the clerk did not schedule any automatic nominal court date. If the case later becomes settled then the parties can ask the clerk for permission to come on a particular date for the nominal divorce hearing. Otherwise the parties can wait for a motion date or the pretrial date to do the nominal divorce hearing.
Discovery in RI Divorce. How do I get information about my Spouse?
After the divorce is filed the Plaintiff and or the defendant can at their option proceed with “discovery”. Discovery in general is the process by which the parties get information or admissions from the other party. Discovery is most important and perhaps crucial in a case when a spouse is unaware of the nature and extent of the marital property and estate. Discovery can be also useful to obtain documents or other tangible evidence that is needed for settlement or trial.
The Rhode Island discovery process also can be used to obtain admissions of certain allegations. While it is unethical and perhaps immoral for a person to lie about cheating or an affair to their spouse it is not illegal or criminal for a person to lie to their spouse about an affair. If a person lies under oath either in testimony or in a written document under oath they may be committing the crime of perjury.
Also if a judge believes a party is lying under oath there could be stiff sanctions and penalties including a referral to the attorney general for prosecution. However, in reality, most incidents of lying in family court are not prosecuted as crimes. Many attorneys use request for admissions or interrogatories to force the other party to state under oath whether or not they had an affair and the extent and details concerning the extra-marital affair / cheating/ infidelity.
There are several discover mechanisms that can be used: interrogatories, request for production of documents, request for admissions, depositions, subpoena duces tecum, subpoenas etc.
Interrogatories-what are they? are they worth the time and effort?
Interrogatories are written questions that a party may sends to the other party. Each side is allowed up to 32 interrogatories. Interrogatories can be helpful in obtaining lists of assets, allegations that will be made by your spouse or other useful information. This information requested can run the gamut from child support to marital infidelity and may include: child custody issues, child visitation, drug and alcohol abuse, gambling addiction, alimony, health insurance issues, real estate issues, estate planning and trust issues, personal injury claims, domestic violence / restraining orders, criminal history, valuation of assets, mental health history and any Rhode Island family law issues.
Interrogatories must be answered in the time frame set by the Rhode island domestic Court Rules. Interrogatories are usually partially written and also reviewed by your husband or wifes’ lawyer. Therefore, while a valuable tool there are some limitations to the usefulness of the information received.
Request for Admissions
Requests for admissions when used appropriately can be a powerful discovery tool in a RI divorce. Request for admissions are written requests usually prepared by the attorney, which the other party must reply within a short period of time. If the party does not reply to the request for admissions within the applicable time the allegation will be deemed admitted.
Should I take the Deposition of my spouse in a RI Divorce?
A Deposition is when a party usually through their lawyer can ask their spouse questions under oath in front of a court reporter. In Rhode Island family Court, a party must obtain leave of court / permission from the court in order to take a deposition. Motions to take deposition of the other party are almost always granted by Family Court Judges. Depositions are powerful yet expensive discovery tools. A deposition usually is effective because the attorney can ask the other party questions face to face. The attorney can ask follow up questions and can ask questions in different ways. This is particularly effective if a party is being evasive or less than forthcoming. There is very little the other attorney can do to help their clients answer the questions during a deposition.
Depositions are very expensive because the Court reporters transcript could cost several hundred dollars. Also the attorney doing the deposition will need perhaps several hours to prepare for the deposition. Also both attorneys will need to attend the deposition, which could take up to several hours. Depositions are usually better ways to get information about sensitive topics then interrogatories.
Request for Production of Documents
Request for production of documents is a list of requested documents that must be responded to within the applicable time period. I find this discovery tool to be particularly successful in obtaining documents and records concerning: pension plan documents, 401k records, retirement accounts, health insurance records, stock accounts, estate planning documents, bank statements, real estate documents etc.
Subpoena
A Subpoena Duces Tecum can be very effective in obtaining documents from third parties such as bank records, stock records, employment and wage records and other documents.
The third part of this three part series which is coming soon addresses preparing for a Divorce trial to the actual divorce trial to the entry of Final Judgment
Trial
If a case cannot be settled, the Court will send the parties a notice of a pretrial conference. At the pretrial conference the Judge may make some effort to help the parties settle the divorce. If the case is not settled then the judge will schedule the matter for a trial.
