Finding a Rhode Island divorce attorney
The first step in obtaining a divorce from your spouse is finding a Rhode Island attorney who makes you comfortable. Many attorneys give free initial consultations, while others charge for the first consult.
It is important to ask the candidate 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.
The cost of a 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 estimate of the eventual fee. Notwithstanding the estimate, the final cost of a divorce usually depends upon several factors. Those factors could include how quickly a settlement is reached; the number of motions that each party files; the amount, nature, and complexity of assets to be equitably divided; the number of documents involved in the case; the animosity of the parties to each other; the waiting time 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 your case. If no settlement is reached and the case goes to trial, the divorce could get very expensive. If everything is agreed upon or nearly agreed upon, and if the parties are relatively amicable, the divorce should take a lot less time and should therefore be much less expensive.
Moreover, uncontested divorces in Rhode Island should be much less expensive then contested divorces. However, there are many different types of uncontested divorces. In some uncontested divorces there are no real assets, and in other uncontested divorces there are substantial assets to divide. If the divorce is uncontested and there are assets, a lawyer may need to prepare a property settlement agreement, deeds, qualified domestic relation orders, or other documents. Therefore, the cost of an uncontested divorce could vary depending on the circumstances.
Intake process and drafting divorce documents
After you have retained a lawyer, there is typically an intake process where the lawyer gets the basic information needed to properly represent you. The lawyer typically drafts the divorce documents and you will sign them in front of him/her or another notary. These documents include a divorce complaint, a DR6 financial statement, a statement of children of the marriage, a counseling statement, a report of divorce, a summons, and an automatic divorce order. It is important that the DR6 form, otherwise known as a financial statement, is completed accurately.
There are many important decisions that should be considered prior to filing for divorce in Rhode Island. Strategy is crucial in many instances!
Should I file a motion for temporary orders?
In some cases, an 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 deal with items such as temporary child support, payment/contribution to day care, contributions to medical bills, alimony, payment of household expenses, or payment of the mortgage, taxes, and insurance.
A motion for temporary orders can also address child visitation and child custody issues, as well as issues concerning exclusive use and possession of the marital home. Temporary orders may also address financial or personal restraining orders and a myriad of other issues. The motion for temporary orders will typically be heard by the Court within 30 to 40 days of the filing of the complaint for divorce.
If no temporary orders are entered while the case is proceeding, there is no legal obligation of a spouse to pay anything until there is a decision by the judge or until the parties sign a property settlement agreement. If there are no temporary orders, the parties do not benefit from the guidance of a court order and will have to resolve financial issues and custody/visitation issues on their own while the case moves forward.
Should I file an emergency motion?
If there is an emergency in which irreparable harm will be caused if a 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, meaning that the other side is not present to object. The judge will only consider the affidavit and documentation before him. If the judge signs the emergency order, then it will be served on the opposing spouse by the constable along with the divorce complaint.
Emergency motions typically deal with issues concerning the abuse of a child, dissipation or unreasonable spending of marital assets, domestic violence, child abuse, or a plethora of other potential situations. If domestic violence is involved and one is in imminent fear of physical harm or has been abused or threatened with abuse, an attorney should consider 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.
Whether the divorce case or the 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 are entered, then a hearing will be set in 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. The Court will determine whether the emergency relief will stay in effect while the divorce case proceeds.
Nominal or contested track?
When a divorce case is filed in Rhode Island, the case is placed on one of two tracks: the contested track or the nominal track. The plaintiff in his or her initial divorce filing designates the track desired. 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 at least wants the divorce to be settled relatively quickly.
Answer to Divorce Complaint
The defending spouse 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 or she 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, the clerk will automatically set a nominal divorce hearing upon the plaintiff’s filing. This hearing will typically be scheduled from 65 to 70 days after the plaintiff files. In the event that the divorce is not settled by the nominal divorce date, 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, 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 that spouse to not appear in court on the nominal court date based on representations made by the other spouse. I have seen numerous occasions where a spouse has assured the other party that it is not necessary to appear in court and not necessary to file an answer; the defendant was defaulted and the filing spouse received 100 percent of the marital assets.
At the call of the calendar on the date of the nominal divorce hearing, 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 track. If the case track is changed, there will be no hearing on 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 issues (which could include issues of property division, child support, child custody, child visitation, alimony, contempt, or restraining orders), the clerk should be informed that the case is now ready for nominal. At that point the clerk and judge return you to the list of cases ready for the nominal hearing
Pursuant to the Rhode Island General Laws, a divorce cannot be resolved without a nominal divorce hearing. At the nominal hearing, certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses briefly testify. If you don’t have the required witnesses, your case could be delayed or even dismissed and you may waste your time attending court.
Most Rhode Island divorce and family law attorneys have been through hundreds of nominal hearings. 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 client. Since everything you have worked so hard for is on the line, it is foolish to go through the divorce process without a family attorney who is well-versed in Rhode Island law.
If a case is originally placed on the contested track calendar, the clerk does not schedule an automatic nominal court date. If the case later becomes settled, the parties can then 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: How do I get information about my spouse?
After the divorce complaint is filed, the plaintiff and/or 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 where a spouse is unaware of the nature and extent of the marital property and estate. Discovery can be also useful in obtaining documents or other tangible evidence needed for settlement or trial.
The Rhode Island discovery process can also be used to obtain admissions of certain allegations. While it is unethical and perhaps immoral for a person to lie to a spouse about an affair or cheating, it is not illegal. However, if a person lies under oath, either in testimony or in a written document under oath, he or she may be committing the crime of perjury.
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 requests for admissions or interrogatories to force the other party to state under oath whether or not there was an affair and to uncover the attendant details of the events.
There are several discovery mechanisms that may be used: interrogatories, requests for production of documents, requests for admissions, depositions, subpoena duces tecum, or subpoenas.
Interrogatories – What are they? Are they worth the time and effort?
Interrogatories are written questions that a party may send to the other party. Each side is allowed up to 32 interrogatories. Interrogatories can be helpful in obtaining useful information such as lists of assets or allegations that will be made by your spouse. Information requested through interrogatories can run the gamut from child support to marital infidelity and may cover 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, or mental health history.
Interrogatories must be answered in the time frame set by the Rhode Island Court Rules. Interrogatories are usually partially written and are also reviewed by your husband or wife’s lawyer. Therefore, while a valuable tool, there are some limitations to the usefulness of the information received.
Requests for admissions
When used appropriately, a request for admissions can be a powerful discovery tool in a Rhode Island divorce. Requests for admissions are written requests usually prepared by the attorney, and 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 period, the allegation will be deemed admitted.
Should I take the deposition of my spouse?
A deposition is when a party, usually through his or her lawyer, asks questions of a spouse under oath in front of a court reporter. A party must obtain permission of the Rhode Island Family Court before taking a deposition, but these motions 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 that opposing attorneys can do to help their clients answer questions during a deposition.
Depositions are expensive because a court reporter’s transcript can cost several hundred dollars. Additionally, the deposing attorney will need perhaps several hours to prepare for the deposition. Attorneys for both parties will need to attend the deposition, which could take up to several hours. Notwithstanding the costs involved, depositions are usually better than interrogatories in obtaining information about sensitive topics.
Requests for production of documents
A request for production of documents is comprised of a list of documents that must be produced by the opposing party within an applicable time period. This discovery tool can be particularly successful in obtaining documents and records concerning pension plans, 401(k) and other retirement accounts, health insurance records, stock accounts, estate planning documents, bank statements, or real estate documents.
Subpoenas
A subpoena duces tecum can be very effective in obtaining documents from third parties, such as bank records, stock records, employment and wage records, or other documents.
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 in helping the parties to settle the matters related to their divorce. If this effort is unsuccessful, the judge will schedule the matter for trial.
