Uncontested RI Divorce

What is an uncontested divorce in Rhode Island? That can be a difficult question for a divorce lawyer to answer, especially over the phone. When a potential client contacts our divorce and family law attorney, and want to know how much an “uncontested divorce” will cost, often the issue is whether the potential client’s case is really uncontested at all.

If you and your spouse have gone over all the issues in a case and have come to an agreement, then the case is, in a sense, uncontested. Often, however, there are many other things an attorney must deal with beyond the agreement and getting the agreement through the Rhode Island Family Court system. Below is a list of “budget busters” that can cause a simple, uncontested RI divorce to take a bit more time and money than planned:

Real Estate
Do you need deeds for house transfers?
Is there a foreclosure, refinance or sale of the real estate?

Pensions
Will there be a division of a retirement account or pension?
Is the pension military, state, or local in nature?

Marital Settlement Agreements
Often, a MSA is needed if there are complex financial arrangements.

Everything Else
Often, when parties have “an agreement,” the agreement may not have touched on all the actual details that the court, and your lawyers need to consider. Until these details have been covered and agreed to, divorce lawyers will still not consider the case to be an uncontested RI divorce.

So, if you are looking to make your divorce simple, ensure you and your spouse has considered the above issues and that you have had an opportunity to sit down with a divorce attorney, who is an expert in Rhode Island divorce law, to go over all the potential issues. Then, and only then, and assuming neither you nor your spouse change your minds, you may have an “uncontested RI divorce.”

Interstate Custody Jurisdiction

Interstate Custody Jurisdiction Issues in Rhode Island Family Court

Often, when one parent of a child moves out of state and the other remains in state, issues of jurisdiction arise when parents need to use the court system to resolve disputes. These jurisdiction questions increase in importance if the child or children move out of state also.

Jurisdiction determines which states court can hear the case. If a parent from RI moved to Florida, nobody would think its right to file a case in Colorado. Could they file in Florida? It depends.

To solve these issues, each state has adopted their own set of statutes, often referred to as a state’s version of the “Uniform Child Custody Jurisdiction Act” (UCCJA) or “Parental Kidnapping Prevention Act” (PKPA). In Rhode Island, General Laws Chapter 15-14.1 deals with these issues.

There are three general types of jurisdiction types which determine if Rhode Island is the appropriate state to hear child issues in family court. They are “home state” jurisdiction, “emergency” jurisdiction, and “convenient forum” jurisdiction. Below are abbreviated descriptions of each type of jurisdiction. As such, they are not comprehensive, and you should consult an attorney before making a decision on your own as to where jurisdiction may exists for children in your particular case.

Home State Jurisdiction

In general, Home State jurisdiction arises in the state where a child has most recently resided for a six month consecutive period. Examples:

  • Joe and Jane and their son live in Rhode Island and have lived in RI for years. Jane moves to Massachusetts four months ago with their son. RI has home state jurisdiction.
  • Same as above but Jane moved 9 months ago. Rhode Island does not have home state jurisdiction.

Emergency Jurisdiction

Emergency jurisdiction arises temporarily if the child is physically in Rhode Island and has been abandoned or it is necessary when a child, or their parent or sibling, has been subjected to actual or threatened mistreatment or abuse. The child must be in Rhode Island. Example:

  • Mom and child have lived out of state for years. Child visits dad in Rhode Island and discloses, and dad believes, that child has been subjected to routine physical abuse by mom or her boyfriend. Assuming the allegations are credible, Rhode Island courts may exercise temporary emergency jurisdiction.

Convenient Forum Jurisdiction

Convenient forum jurisdiction arises, generally, when no other state has exercised “home state” or “emergency” jurisdiction, the child is in Rhode Island, and the court determined that Rhode Island is the most appropriate forum for jurisdiction. Example:

  • If mom and child have lived out of state for years but have never actually stayed in one place for more than a few months, and the child comes to Rhode Island. Dad lives an yet another state. If mom seeks to establish orders relating to the child, Rhode Island would likely be named the most convenient forum for jurisdiction.

RI Military Divorce Issues

These days so many Rhode Islander’s or their significant others are either on active duty with the military or in the Guard or Reserves. As a result, the impact of military service is something every divorce lawyer in Rhode Island needs to understand in order to best represent a client in court and settlement negotiations. Below, I will touch on the various topics you must be aware of in dealing with a RI military divorce when one party is in military. Your divorce lawyer needs to truly understand these issues, not just have heard of them.

Notice
If a party files a divorce or child custody, possession, or support case in a RI family court, the other party must be served with proper notice of such proceedings before the court can take long term action. “Getting served” can be much more complex when the party being served is in the military and out of Rhode Island.

Soldiers and Sailors Act
If a service member is on active duty, even with proper service, the divorce or custody action may not be able to go forward. The “Soldiers and Sailors Act”, so called, is designed to prevent an undue disadvantage being imposed on a military member when they are unable to actively participate in litigation due to military obligations.

Support
Did you know that each branch of the military – Army, Navy, Air Force, Marines, and Coast Guard, have their own methods of determining how much of a service member’s pay must be turned over to a spouse or child, in the event there is no state order to the contrary? You need a law firm that understands these issues.

Pensions
Pension division issues are complex enough, but when a spouse in military, the task of dividing pensions get significantly more complex. Read the details of things to consider when dividing a military pension/benefits in RI divorces.

Health Insurance
The provisions law Rhode Island that deal with a spouse or child’s continued health and/or dental insurance can often be at odds with how the military will dictate those issues be handled. Factors such as length of marriage may allow a spouse to remain covered even after a divorce.

Overall, military issues can have a significant impact on your case. Ensure your divorce or custody lawyer has the knowledge and experience to confidently handle your Rhode Island divorce. Call Attorney Don Moyer now to set up your consultation. We’ve got the knowledge and experience you’re looking for. (401) 461-7800.

Dividing Military Pensions in RI

Military Pensions are a world into themselves when it comes to divorce. Knowing how to tackle them is key to ensuring a fair and appropriate division of assets in a Rhode Island divorce. Below is a primer on the various issues.

The 10-10 Rule

The first thing to realize is that while the pension, or a portion of the pension, may be marital, and while the Rhode Island courts may order that a spouse has an entitlement to a share of it, the military may not distribute it. There is a rule we call the 10-10 rule: If there is a ten year overlap of military service and marriage, then the Federal Government will accept an order to divide the pension.

Example: Wife and Husband married for 9 years and Husband in military for 24 years. Pension is assignable, but the military will not divide. Husband will have to pay directly to Wife upon receiving pension.

Calculating Benefits

Here’s the short version of how our divorce lawyer calculates a spouses military benefits.

Spouse Benefits = Total Benefits x Marital Share x %Split

Total Benefits = (Base Pay Rate x Years of Service x 0.025)

Marital Share = (Years Marriage & Military Overlap / Total Military Years)

%Split = Whatever the court awards. For further examples we will assume 0.5, i.e. a 50/50 split.

If service member A is receiving a pay of $3,000 per month, has been in the military for 17 years, and marries for 11 of those years, and there is a 50/50 split, the calculation would look like this:

Spouse Benefits = ($3,000/mo x 17 x 0.025) x (11 / 17) x (0.5) = $412.50/month.

So, spouse would be entitled to a share of $412.50 per month by way of a direct pay from the military. Subject to the following, more complex, issues:

Cost of Living Adjustment

The end result of the calculation above is in present day percentages. The future payout would be adjusted for future cost of living adjustments, or COLA.

Define “Base Pay Rate”

Base Pay Rate is what it says, which mean that when you look at a service members LES, look for “Base Pay Rate” and exclude all the other items like BAH and the like. Now, if the service member stays in the military, as time and promotions come and go, his or her base pay rate will increase, which would, according to the calculation above, alter the calculation above.  So, what do you do? Ensure you define the rate as being the present rate.  But there is a catch.  This can be done for guard personnel, but not reserve or, believe it or not, active duty personnel, so, we need to get creative to make the implementing order fair. Here at Moyer Law Office, Attorney Moyer knows how to structure this. visit here to check out the pay charts.

Disability Pensions

Did you know that if there is an order dividing the military pension, and the service member begins collecting VA disability, that the ex-spouse may lose out on her court ordered military retirement share? It’s true. But we can help try to mitigate or avoid this consequence of Federal law.

Summary

Well, we hope this primer on military pension division was helpful. If you are involved in a divorce with military aspects, our lawyer can help you through this and other unusual complexities that arise out of military service. Call us today at (401) 461-7800 to schedule you consultation now.

RI Divorce Basic Issues Overview

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Divorce Big Picture

In Rhode Island, there are four general categories of issues that your lawyer will deal with in your divorce, namely: Children, Division of Marital Estate, Alimony, and Temporary Issues. Understanding these categories will help break down the process, and help you understand where things you think are important fit in.

Children: There are several sub-parts to the children category and they are: Custody, placement, visitation, support, and medical coverage. A primer on what the court considers in solving child issues may be found in the FAQS section.

Division of Marital Estate: The first step is to identify the marital assets and/or debt. Issues such as inheritance, pre-marital assets, are relevant here. In the next step, the assets and/or debt must be valued. Bank statements, appraisals, credit card statements, and the like help here. Finally, after determining what is divided, and its value (positive or negative), the assets must be divided. The rule of thumb is to assume a 50/50 division and vary off of that based on certain factors that may apply, such as fault (i.e. affairs, abuse, etc.) The statutory factors used in determining division of assets may be found in the FAQS section.

Alimony: Factors such as length of marriage, ability of each party to pay support, and the needs of each party are relevant here, amongst other factors. The court makes a decision regarding alimony only after making its decision regarding the division of the marital estate first. In RI, alimony is considered “rehabilitative,” and thus, it is not awarded simply due to unequal incomes. Any lawyer seeking alimony must have a plan for their client to use the funds to “rehabilitate” themselves. As an example: completing an education, or time in employment to get a promotion.

Temporary issues: Often, issues such as placement of children, support, restraining orders, and use of assets (who lives in the home) need to be handled prior to the final hearing on divorce. These are considered “temporary” issues.