Rhode Island Divorce From Soup to Nuts !
- Author David Slepkow
- Published November 21, 2009
- Word count 3,045
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 is finding a Rhode Island Family Lawyer who you are comfortable with. Some attorneys charge for the first consult. Many attorneys give free initial consultations. I have always taken the position that the initial consult should be free.
It is important to ask the proposed lawyer about his or her experience to handle your case. It important to determine the hourly charge and the amount of any retainer or fee.
Cost of Rhode Island Divorce
It is usually difficult to determine how much a divorce will cost . However, it is a good idea to get an estimation of the potential fee. This will never usually be more than a estimation because the cost of the divorce usually depends on many factors. Important factors could include how quickly a settlement is reached, the number of motions, the amount / nature and complexity of assets to be equitably divided, the amount of documents involved, the animosity of the parties to each other, the waiting time while you are in court and many other potential issues.
The longer it takes to reach a settlement, the more the divorce will cost. The lawyers will spend a lot more time working on the case if it is contentious. If there is no settlement and the case goes to trial or the day of trial, the divorce could get extremely expensive. If everything is agreed or nearly agreed to and the parties are amicable then the divorce should take a lot less time and therefore be 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 deeds, property settlement agreement, 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 $900 flat fee plus costs. The typical costs are a filing fee of $100 and service of process fees of approximately $45.
Intake process and drafting Rhode Island divorce Documents
After you have retained the lawyer, there is 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.
will the case be put on the Nominal or Contested Track?
When a RI divorce is filed in court, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in the initial filing designates the track. The vast majority of divorces filed in Rhode Island are designated on the nominal 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 needs to file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. It is very dangerous to not answer a case! 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 plaintiff requests.
If the divorce is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing. The clerk will write in the nominal and motion dates onto the summons to be served on the defendant. This hearing will typically be scheduled from 65-70 days after filing. 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 you have filed an answer to the case, attendance at the first nominal court date is usually optional.
If the case 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 spouse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the spouse 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 may 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."
Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a bad idea for a person to represent himself or herself in a RI 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?
Discovery is a mechanism by which the parties get information or admissions from their spouse. Parties can at their option proceed with "discovery". Discovery is most important and perhaps crucial in a case when a spouse is unaware of the extent of the marital assets and estate. Discovery can be a useful to obtain documents or other tangible evidence that is needed for settlement or trial. RI discovery can also can be used to obtain admissions of certain allegations.
While it is 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 perjury.
If a Family Court judge believes a party is lying under oath there could be sanctions. This may include a referral to the attorney general for prosecution. In reality, most incidents of lying in family court are not prosecuted.
Many attorneys use interrogatories or request for admissions 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 / infidelity/ cheating.There are several discover tools that can be used: request for production of documents, interrogatories request for admissions, depositions, subpoena duces tecum, subpoenas etc.
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 can ve very 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 can be 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. Both Laswyers will be required to attend the deposition, which could take up to several hours. Depositions are usually better ways to get information about sensitive topics rather than written interrogatories.
What are Request for Admissions?
Requests for admissions when used properly can be a effective discovery tool in a RI divorce. Request for admissions are written requests usually prepared by the attorney. 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.
Interrogatories-what are they? are they worth the time and effort? What types of questions can be asked?
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 a description of assets, allegations that will be made or other information.
This information requested can run the gamut from child support to marital infidelity. It may include: child custody issues, child visitation, disability and life insurance, criminal history, drug and alcohol abuse, gambling addiction, alimony, health insurance issues, real estate issues, estate planning and trust issues, personal injury claims, trust and estate info, domestic violence / restraining orders, valuation of assets, mental health history and any Rhode Island family law matters.
Interrogatories answers are usually partially written and also reviewed by your husband or wifes' lawyer.Interrogatories must be answered in the time frame set by the Rhode Island domestic Court Rules. There are some limitations to the usefulness of the information and answersd received.
Subpoena Duces Tecum
A subphoena is essentially a court order to bring certain documents to court. 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.
Should I send 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.
Will there be aTrial on merits
If a case does not settle, 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.
There may be many pretrial conferences. It is not unusual to have 3-5 pretrial conferences. If the case is not resolved after a year, the judge will put pressure on the parties to settle and will start setting the matter down for trial. The chief Judge of the Family Court does not like cases going over a year and may pressure the presidding judge to resolve the matter or schedule it for trial.
Trials are very expensive and time consuming. Preparation for a trial may take several days to do properly. Many cases settle right before the trial begins. Some cases settle after a few hours of testimony or mid trial. On the day of the trail, the judge may put presure on the parties and their attorneys to settle the case. Some judges will make you sit in a conference room for days trying to work it out before they start or complete a trial. It is extremely rare for a a divorce trial to be completed and the judge issuing a ruling. For example, Providence County only has 1 trial judge hearing divorce trials. How many trials do you think that one judge could handlein a year!
Keep in mind thousands of divorce cases are filed in Providence county each year. Providence county includesProvidence, Pawtucket, Cranston, Johnston, East Providence, Barrington, Warren & Bristol.
David Slepkow is a Rhode Island Lawyer concentrating in divorce, family law, restraining orders, child support, custody and visitation.
You can contact attorney David Slepkow by going to http://www.slepkowlaw.com or by calling him at 401-437-1100.
Also please visit: http://www.slepkowlaw.com/divorceArticle source: http://articlebiz.com
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