Grounds for Divorce in Rhode Island
As with most US states, Rhode Island family law permits separation and divorce and recognizes both fault and no-fault grounds for each. Most of the time, the no-fault option is used when the couple has lost its sense of marital community. They are no longer living together and there is no hope of reconciliation. For this type of divorce, you simply demonstrate that at some point, you lost all intimate affection for the other, you live separate and apart and the reconciliation is improbable. Of course, this can be a gray area. Strictly speaking, if you meet the requirements above, a judge will approve your divorce and no further proof is required. Yet , life isn’t so neat. Many couples who have lived "separate and apart" for years retake up the same path as before, so the judge must often look to your motives and purpose when granting a divorce on no-fault grounds. Some divorce cases are filed under traditional "fault-based" grounds, meaning you have found your spouse at fault and seek recompense. In Rhode Island, this is less about caring for your marriage and more about blame and sometimes, financial gain. For a fault-based divorce in Rhode Island, you must specify that your spouse has been unfaithful, engaged in bigamy, willfully deserted you for one year (not to be confused with separation) or committed extreme cruelty.
Rhode Island Resident Requirement for Divorce
As is the case in virtually every other state, a person getting divorced in Rhode Island must meet a residency requirement before filing for divorce in the State of Rhode Island. When divorce is filed in Rhode Island and one party resides in Rhode Island, then you must have resided in the State for at least one (1) year prior to the filing of a divorce. If the party filing for divorce does not reside in Rhode Island at the time the divorce action is filed, then the minimum residency requirement is that the Plaintiff must be a nonresident of the state for at least 3 months, prior to the filing of the divorce action. Under the conditions of the latter residency requirement, provisions are made in order for the Plaintiff to sue for divorce in the State of Rhode Island. Under the second residency requirement, the Plaintiff must allege in the complaint in an affidavit that he or she intends to settle in the State of Rhode Island and that one of the following provisions has occurred: 1) the Plaintiff has abandoned the defendant in this state; 2) the parties have built an abode in this state and intend to reside there; 3) the plaintiff has been charged with an offense against the Defendant and leaves him or her without support and it will cause injustice to require the defendant to follow the plaintiff to another state to live; or 4) the plaintiff and defendant have agreed in writing and record before the court that the plaintiff may sue in this state.
Division of Property & Assets Upon Divorce
Rhode Island is an equitable distribution state. This means that property and assets acquired during the course of the marriage are subject to division upon divorce. In addition, those assets acquired prior to marriage, obtained by gift or inheritance, and those acquired after separation, are also subject to division if the other spouse was instrumental in creating or acquiring them. Rhode Island courts do not divide all marital property equally. Instead, through the application of the facts and circumstances of the marriage to a list of factors the court must consider when determining fairness in the division, the court will make a determination after a full hearing. It is very important to understand with these considerations the court has discretion to determine what is fair and reasonable under the circumstances. Since each of the factors must be proven, there is no guarantee that a party is going to get a share of marital property that he or she believes is equitable. Therefore, a strong argument for why the division should be in your favor is absolutely necessary when presenting your case to a judge. The factors that the court must consider in determining equitable distribution include: The court will not consider any factors outside of what is listed above, including infidelity or one party being unjustly enriched at the expense of the other. While the court may consider these factors in regards to alimony, it cannot consider them with the equitable distribution of property and assets.
Child Custody & Support in Rhode Island
In Rhode Island, child custody arrangements are determined by the family court based on the "best interests of the child" standard. This standard is subjective and is assessed according to the totality of circumstances in each individual case. Judges consider various factors when determining child custody and support, including the parents’ income, the child’s medical needs, and the ability of the parent to care for the child, among other considerations.
There are two types of custody determinations in Rhode Island: legal custody and physical custody. Legal custody refers to decision making authority over the child, while physical custody refers to the residence of the child. In almost all cases, Rhode Island courts will award legal custody jointly to both parents. Dividing physical custody can be more complicated. Parents may have the choice of either sole or shared physical custody.
With regard to economic support of the child, domestic relations law in Rhode Island provides a guideline suggesting the amount of child support that should be paid. Rhode Island judges are required to use this guideline to determine child support obligations, unless a deviation from the guideline is necessary.
Alimony Calculation Techniques in Rhode Island
In Rhode Island, either spouse can be eligible to receive alimony upon divorce. Alimony is often requested by the spouse who earns the less money, but the law is gender neutral – meaning either spouse can ask for an award of alimony. Alimony can be paid directly to the supported spouse or it can be used to pay on expenses for the supported spouse, such as a car payment. Alimony is a court ordered allowance from a spouse. When deciding whether a spouse qualifies for "spousal support" – and if so, how much – the judge will look at a number of different factors:
Generally, alimony is not as long-term of a financial support award as child support . Alimony awards are generally limited to an award not in excess of the length of the marriage. However, the circumstances of a couple’s particular situation can change the terms of the result. Alimony can be either rehabilitative or un-rehabilitative. Rehabilitative alimony means that the amount and duration of the award are directed toward helping the supported spouse become self-supportive. Un-rehabilitative alimony means that the amount and duration of the award is designed to make up for the sacrifice one spouse made to the family unit.
How Long the Divorce Process Takes
The length of a divorce proceeding in Rhode Island can often be a consideration when parties are deciding whether to file for divorce. While there is no "standard" length of time that a divorce will take from filing to finalization in the state of Rhode Island, there are general time tables that apply. Rhode Island General Laws section 15-5-14 provides that "[i]f no default is taken, and no other action on the part of the defendant is shown, six (6) months from the date of service of the summons on the defendant shall be allowed. In all cases of default, if not heard sooner, the cause shall be heard six (6) months after the bill is filed." The court must have jurisdiction over each party to the divorce who is seeking relief in order to finalize the divorce proceeding. In that sense, a divorce proceeding cannot be finalized until a case is at issue.
After you file for divorce, the Respondent has 20 days to file an answer. If the Respondent does not file an answer, the Petitioner may seek a default judgment based on the Petition for Divorce. If the Respondent files an answer to your Petition for Divorce, then the parties can begin drafting and determining terms of the divorce or a trial date may be set if an agreement cannot be reached. Once a settlement has been reached or a trial has been held, the Court will hold a final hearing in order to review the terms and either approve or deny the divorce as presented. Once the divorce has been approved by the judge, a final judgment can be entered and a divorce can be granted. Because circumstances vary widely based on each individual’s needs, the process can last from anywhere as short as 3 months to as long as 6 years or more. The general time table of 6 months from the date of service on the defendant is based on the presumption that an immediate settlement cannot be reached and that you will need to schedule a trial and be granted a default judgement. Other considerations such as filing in the Family Court versus filing a complaint in Superior Court can impact the length of your divorce proceeding as well.
One often overlooked aspect of a divorce proceeding is the potential for a "cooling off period." For divorces where the parties have been married only a short period of time, the general time permitted for a no fault divorce is 3 months from the date of service. This start date can be delayed based on other circumstances such as residence provisions requiring you to live separate and apart for a period of time in order to qualify for divorce. There is also a mandatory cooling off period of 3 months permitted if minor children of the marriage or the family are involved. General Laws section 15-5-9.1. This three month period was adopted in 2006 to give parents more time to obtain mediation services offered through the Family Court prior to a divorce being granted. This provision allows a judge to delay the granting of a divorce for up to 3 months while a judge, referee or magistrate can appoint a parent coordinator to attend to mediation of parenting plans during that time period. Again, please keep in mind that the time frame in which it takes to proceed with a divorce proceeding is completely specific to you as an individual.
Mediation and Representation in Rhode Island Divorce
Legal representation in Rhode Island is highly recommended regardless of whether you are the filing party or receiving party. Aside from the peace of mind that your rights are being protected and that the assets are being divided according to the law, there are a host of other reasons to have legal counsel. Several of these reasons can be illustrated through consultation with former clients:
There are several types of issues that lawyers commonly deal with that may require additional expert analysis and/or settlement negotiations. Many of these issues come up in the divorce setting and may include:
Mediation is known as an informal process involving an impartial third party between the parties to resolve the divorce laws issues. There are many benefits to mediation if you believe both parties are acting in good faith.
In most cases involving the asset division of property such as real estate, vehicles, stocks and bonds, a good mediator will have the tools to aid in reaching an agreement. However, other issues such as the drafting of a parenting plan, child support and alimony awards should be left up to the professionals.
To find out which strategy is best for you, we encourage you to consult with family law attorneys who understand your situation and will listen to your needs.
Filing a Complaint for Divorce
Before a divorce may be initiated, one of the parties must have been a resident of Rhode Island for at least one year prior to filing unless the reason for the divorce occurred in Rhode Island. Under statutory law, the Defendant must be residing at the same residence/snore-four of the year and require the other party to live there for six months.
To initiate a divorce in Rhode Island, the Complaint for Divorce must be filed with the Family Court in the county where the Plaintiff or Defendant resides. In Providence County it is located at 248 Canonicus Street, first floor; in Kent County at 222 Quaker Lane; in Washington County at 4808 Tower Hill Road; in Newport County at 45 Washington Square. In Bristol County, the Clerk’s Office is located in Taunton.
The filing fee for a traditional divorce complaint is $210. Additional fees apply for a contested divorce. For filing a complaint for Contested Divorce and requesting a Certificate of Divorce Costs as required by R.I.G.L. ยง15-5-14.2, a plaintiff must pay the filing fee in the amount of $225 plus an additional fee of $40 for the Certificate of Divorce.
The Complaint for Divorce is a Form 28, available at the Rhode Island Judiciary website. As with all lawsuits, the complaint requires the following information to be added: By way of example, the Defendant names may be set out as any of the following: "your Honor; "Mr. Caspersons;" "Mr. J . C.;" "Julian Caspersons;" "Julian L. Caspersons." There is no requirement that the Plaintiff use his or her spouse’s last name; however, the Plaintiff must set forth all names that he or she has ever used. Examples are: maiden name, married name, nicknames, and/or prior married names.
Next, the Plaintiff must supply the Court with an Affidavit regarding the venue, which is Form 4, along with a civil cover sheet, Form 1. The Divorce Complaint also requires that the Plaintiff include the date of marriage, the date and place of separation, and the reason(s) for the divorce (fault or no fault grounds). If children under the age of 18 years are involved, the Affidavit in Support of Statutory Grounds for Divorce is required, which is Form 7. The Rhode Island Family Court Supplemental Statement Form must also be completed.
To secure service of the documents upon the Defendant, the Plaintiff must prepare a Summons, Form 8, for review by the clerk who shall issue said summons or issue a waiver of said service. The Plaintiff must also submit an Affidavit and Military Service Form, Form 9, Attestation of Family Court Rules, Form 10, and Consent to Entry of Final Judgment, Form 11, if applicable.
The complaint must be physical served upon the other party by a law enforcement officer and/0r a process server. Alternatively, if the parties consent to service, a waiver of service may be obtained.
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