Aside from the emotional and financial toll that divorce can take on you, understanding the legal aspects of divorce is essential for you to survive the complex challenges facing you.
While an attorney can help, you also need to educate yourself on the legalities of divorce. If you don’t, you run the risk of enduring an unfavorable outcome that could haunt you for years.
Here are some of the key divorce laws in Rhode Island that will help you better understand what lies ahead.
- Basic Laws Regarding Divorce in Rhode Island
- How is the Division of Property Handled?
- Retirement Plans and Pensions
- Gifts and Inheritance
- Determining Alimony (Spousal Support)
- How is Child Support Calculated?
- Figuring Out Child Custody
- Rhode Island Divorce FAQs
Basic Laws Regarding Divorce in Rhode Island
Rhode Island is both a fault-based and no-fault divorce state. This means you can either cite irreconcilable differences to get divorced (which is what most people do), or you can cite a fault-based reason such as adultery, extreme cruelty, impotency, or other similar behaviors.
You must be a resident of the state for at least one year prior to filing to meet jurisdictional requirements.
Property is divided according to equitable distribution guidelines. This means marital property is divided fairly, but not necessarily on a 50/50 basis. The court will consider several factors before approving how assets are assigned to each spouse. Debts are treated the same way.
Child support is determined by the Income Shares Model, which primarily bases the amount of support on the incomes of both parents.
Courts prefer that parents work out child custody issues as well. Unless there are extenuating circumstances, the preference is that both parents have an ongoing and active role in raising children. However, when substance abuse or domestic violence is present, Rhode Island courts will limit a parent’s interactions with their children.
Courts also grant alimony in many cases, but the amount and the duration vary from case to case. The court must use several factors to decide what is appropriate.
How is the Division of Property Handled?
Rhode Island is an equitable distribution state. This means marital assets are divided fairly and equitably, but not always on a 50/50 basis. In some cases, couples can reach an agreement between themselves. But in most cases, the court will need to intervene to decide the issue.
Before the court jumps in, many couples choose to go through mediation so they have some control over how a final property settlement will look.
By law, Rhode Island courts must look at the following factors when deciding what is marital property and how it should be equitably divided:
- the length of the marriage
- the conduct of the spouses during the marriage
- contributions to the acquisition, preservation, and appreciation in the value of property
- contributions and services of either spouse as a homemaker
- the health and age of the spouses
- each spouse’s income
- each spouse’s occupation and employability
- each spouse’s opportunity for future acquisition of capital assets and income
- the contribution by one spouse to the education, training, licensure, business, or increased earning power of the other spouse
- the best interests of the children and need of the custodial parent to own or occupy the marital home
- a spouse’s wasting of assets or any transfer or encumbrance of assets made in contemplation of divorce, and
- any factor which the court shall expressly find to be just and proper
Pre-marital property can be taken into account, even though it will not be divided. Instead, it will be set aside.
Also, a division of assets takes place before alimony is determined.
A judge can also consider bad behavior like an affair or abuse during the marriage when dividing the spouses’ property.
Retirement Plans and Pensions
In Rhode Island, pensions and 401k plans that are earned during a marriage are considered marital property. They are also subject to fair and equitable distribution. Retirement assets are often negotiated in such a way that one spouse may give up their interest in a family home to retain a greater share or all of their pension funds.
Due to the nature of retirement accounts, determining an exact value can be complicated. It’s common to get specialized help to do this by retaining a certified divorce financial analyst or a pension evaluator to reach an acceptable figure.
After the overall value has been determined and what each spouse will receive, the account must be split into two accounts. This requires created a qualified domestic relations order or QDRO for short.
The QDRO creates specific instructions on how the retirement account will be split, and each account requires a separate QDRO. The plan administrator and the court must approve it before an account separation takes place.
Dividing Bank Accounts
Bank accounts are treated just like any other marital asset in a Rhode Island divorce. Courts must first determine that funds in a bank account are a marital asset, and then the funds will be distributed as part of the overall division of assets.
In some cases, one spouse will have a separate bank account and as long as funds are not commingled, the spouse can keep those funds as a separate asset.
Any bank accounts with assets that were acquired during the course of the marriage are considered marital property in Hawaii and must be divided equitably.
What About Debts?
Just like assets, marital debt must also be divided in a divorce. Whether or not it is marital will depend on when it was acquired, how it was used, and which spouse (if not both) acquired it.
For example, a spouse who makes bad investment decisions without consulting a spouse during a marriage may be stuck paying the debt alone, even if it was accumulated during the marriage.
Debts are treated much the same way as assets in a divorce. Either the spouses must decide how they are to be divided, or the courts will decide for them.
In most cases, the court will award debts acquired before the marriage to the person who already had them. Debts acquired during the marriage will be divided fairly and equitably, but not always equally.
Debts incurred by both parties are always divided equally in the eyes of creditors. However, you may be able to negotiate a settlement that allows one spouse to be responsible for the debt.
Gifts and Inheritance
In Rhode Island, gifts or inheritance received during a marriage is not considered marital property.
Also, the income and appreciation from a gifted property is not marital property, and specifically includes life insurance and distributions from trusts.
Non-marital separate property can become marital property through transmutation. This means if one spouse transfers property to the other spouse in joint names, then it becomes marital property. Also, if a spouse deposits funds into a joint bank account, this can also be considered marital property.
A spouse will need to present clear and convincing evidence that the property was intended to be kept separate if they didn’t want to create joint ownership.
Related to this, a personal injury settlement or judgment for pain and suffering, future lost earnings, and reimbursement for future medical bills are not marital property in Rhode Island either.
Determining Alimony (Spousal Support)
Alimony may be granted temporarily while a divorce case is happening, or it may be granted for a short period, as a means to help a spouse rehabilitate their skills and work experience, or on a permanent basis.
Rehabilitative support is the most common and is based on need. It gives a spouse time to go back to school, job search, and enter the workforce in such a way that it allows them to become self-sufficient.
Permanent support is rare and usually only awarded when a spouse can’t support themselves due to declining age, a disability, old age, or if they have been out of the job market for too long.
By law, the court must use the following factors when determining the duration and the amount to be awarded.
- the length of the marriage
- the conduct of each spouse during the marriage
- each spouse’s health, age, station, occupation, amount and sources of income, vocational skills, and employability
- the liabilities and needs of each spouse
- whether the supported spouse the custodial parent of a child whose age, condition, or circumstances make it difficult to seek employment outside of the home, or find only part-time or flexible employment
- how long a spouse was absent from work while fulfilling responsibilities as a homemaker and the extent to which the spouse’s education, skills, or experience are outdated and earning capacity diminished
- the time and expense necessary for the supported spouse to acquire education or training to develop marketable skills and find employment
- the probability, given a spouse’s age and skills, of completing education or training and becoming self-supporting
- the standard of living during the marriage
- the opportunity of either spouse to receive assets or income
- the paying spouse’s ability to pay support while maintaining financial independence, and
- any other factor the court finds to be just and proper.
A judge has broad discretion on how to award alimony and none of the factors above are weighted more heavily than the others.
Typically, alimony is paid each month, but in some cases, a lump sum may be awarded instead. There are also some instances when a judge may award real property or other assets as part of the overall alimony agreement.
When a spouse refuses to pay, the courts can step in to enforce the alimony order. This could mean a spouse’s pay is garnished, or they will have to pay a fine, and possibly spend time in jail.
Alimony ends when the spouse receiving payments gets married or either spouse passes away.
Due to the Tax Cuts and Jobs Act, any alimony payments made after December 31, 2018, are no longer tax-deductible to the payor and no longer must be treated as taxable income for the recipient.
How is Child Support Calculated?
Child support in Rhode Island is based on the fact that both parents are responsible for contributing to the welfare of their children.
Basically, the court looks at the combined incomes of the parents, and then after adjustments are made for things like childcare, health insurance, basic living needs, and other expenses, it will determine how much a parent must pay.
The legal obligation of child support ends on the child’s 18th birthday or 90 days after the child graduates from high school. The exception to this is if the adult child can be declared as a legal dependent.
Based on recent changes in the law, child support is not taxable for the receiving parent, and it is not a tax deduction for the paying parent.
The amount can be modified either up or down depending on if there have been substantial changes in either parent’s life. Modifications may be allowed if a parent loses a job, if there is a jump or loss in overall income, or if other expenses have changed dramatically (healthcare premiums, child care expenses. A court must review and approve all requests.
Child support in the state is processed and monitored by the Rhode Island Office of Child Support Services.
When a parent does not comply with child support orders, he or she can be subjected to a garnishment of wages, seizures of bank accounts, insurance settlements, income tax returns, inheritances, and other windfalls of money. Assets such as cars and homes can also be seized to pay child support obligations.
Figuring Out Child Custody
When minor children are involved in a divorce, a Family Court judge will determine custody based on the best interests of the child.
Legal and physical custody will need to be determined. Physical custody is with the place and parent where a child lives. Legal custody is which parent is responsible for making the major decisions in a child’s life, such as medical decisions, church and school attendance, and other important issues.
Both parents can be granted both types of joint custody, or a judge may decide to grant physical custody to one parent and allow legal custody to be shared.
In some cases, a child may be placed with one parent for half the week, and then the other parent the other half of the week. This is knowns as shared physical placement.
When there are two or more children and a child lives with the father and other children live with the mother, this is known as split physical placement.
There are 8 factors a judge will normally look at in determining the best interest of the child for both physical and legal custody of children. The judge will use a combination of the following factors:
- The wishes of the child’s parent or parents regarding the child’s custody.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
- The child’s adjustment to the child’s home, school, and community.
- The mental and physical health of all individuals involved.
- The stability of the child’s home environment.
- The moral fitness of the child’s parents.
- The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.
When there are disputes, the court may require assessments by various professionals such as therapists, social workers, and psychologists.
The impact of substance abuse
Substance abuse (either drugs or alcohol) is one of the fault-based reasons a spouse can file for divorce in Rhode Island. It can play a role in several facets of the divorce. For example, a court may rule that a parent’s visitation rights could place a child in jeopardy.
This could limit or eliminate contact with a child until a parent can prove they have been rehabilitated.
In some cases, when it can be shown that abuse has impacted a marriage, this may influence how assets are divided as well.
What role does domestic violence play?
Before you do anything else, if you are experiencing domestic violence, the first thing you must do is protect your safety and the safety of anyone else being threatened. Call 911 if needed and vacate your premises immediately.
When a spouse files for divorce based on domestic violence in Rhode Island, the courts can issue a restraining order that can keep one spouse from interfering with the liberty of the other, or keep the spouse from causing or attempting to cause bodily harm, or restraining either party from the threat of physical menace, such as fear or intimidation.
Domestic violence is not limited to a spouse. It can include any adult related by blood or marriage, people who have children in common, adults who have lived together in the past, or people who have been in a serious dating or engagement relationship in the past year.
There are also many forms of domestic violence, ranging from simple assault to more serious crimes such as kidnapping, sexual assault, homicide, stalking, arson, child-snatching, and others.
As you work through your divorce, domestic violence will impact child custody, visitation, and a division of assets.
Rhode Island Divorce Law FAQs
How is adultery treated Rhode Island divorce laws?
When adultery takes place in a marriage it can be considered when a division of assets takes place. If a spouse spent significant funds on an affair, the distribution could be affected in favor of the innocent spouse.
What is a bifurcation of marital status, and how does it work?
In a bifurcated divorce, a judge will allow a couple to divide the case into two separate legal actions. This bifurcation may take place when certain issues can be resolved, but a few key issues cannot be decided.
Some states allow this as an option, but Rhode Island does not.
All issues such as child custody, visitation, support, distribution of property, and attorney fees must be resolved completely prior to reaching a divorce agreement.
What are disclosure obligations?
In Rhode Island, you must disclose all your assets, income, debts, and other financial obligations as part of the divorce process. The court will use this information to make an informed decision about dividing assets, alimony, and child support.
Do not attempt to hide assets during this process. If you’re caught you could face penalties that could cost you more in the long run.
What about health insurance during and after divorce?
Rhode Island is a bit different from other states when it comes to health insurance during and after a divorce. The state has enacted the Rhode Island Health Insurance Continuation Act. This allows some ex-spouses to remain on their spouse’s health insurance after a divorce has been finalized.
Some employers are balking at this law and citing federal law instead of in an effort to remove spouses from health care coverage following a divorce.
If you are in this situation, you will need to check with the spouse’s employer if you want to continue coverage to see if they will allow it. This needs to be included in the final settlement language so an official record is created.
In other cases, a spouse may be required to pay for health insurance as part of the final settlement agreement, both for a spouse and any children. Courts are especially concerned that children are covered.
In other cases, an ex-spouse who is no longer covered will need to get coverage on their own either through COBRA or through the insurance marketplace.
Are there special rules and considerations for military divorces?
You or your spouse must either live or be stationed in Rhode Island for the state to have jurisdiction over your case.
The grounds for a Rhode Island military divorce are exactly the same as they are for a civilian case. You can either file a fault-based or no-fault action.
The active-duty spouse must personally be served with the summons. However, a spouse can waive service if he or she files a waiver affidavit to acknowledge the divorce action.
Child custody and visitation issues can be more complicated due to relocation or deployment orders. Child support is determined the same way as it is for civilian cases, using the Income Shares method. Combined child support and alimony awards may not exceed 60% of a military member’s pay and allowances.
For example, a military spouse can request a delay in divorce proceedings so that his or her military duties are not impacted. Legal action can be delayed when he or she is on active duty plus 60 days beyond the end of his or her enlistment.
A court will not divide and distribute any of the military member’s retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
What if my spouse does not respond to any divorce actions in a timely way?
Your spouse has 20 days to file a response after being served a summons. If they choose not to respond, a judge can issue a default judgment for your divorce.
In most cases, all terms you are asking for are granted, including things like child support, alimony, a division of assets, and other key issues.
Essentially, not answering a divorce summons means that you are signing a blank check and giving it to your spouse, and that’s never advisable.
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