How Can I Divide My Assets Without Destroying Them?

The concept of how to divide assets is often a primary focus of divorce. When you’re talking about liquid assets like bank accounts, dividing them is as often fairly straightforward. Generally, we can assign each person an amount and then transfer the money accordingly.

Unfortunately the division of a house or a pension, or other long-term investments like those, can mean “destroying” them. In divorce cases, the sale of a house can be disruptive, stressful, and further reinforce children’s fears about how dramatically their lives are changing. Cashing in certain investments, like stock options, 401(k)’s or IRA’s can result in tax penalties that further add to the costs of a divorce. [Read more…]

Have you been charged with Contempt of Court in Rhode Island?

by Attorney Christopher E. Heberg –

Notice of the Charge
Has a Motion for Contempt been filed against you for not paying your child support previously ordered by the court? Perhaps, you’re filing for contempt against your spouse for not doing what was required with a Divorce Decree.

No matter the precise scenario, the process can be quite contentious. In both situations, you should work with a competent Rhode Island family law attorney to insure you go through the proper steps to assure the contempt charge gets ironed out in the best possible way.

Your Response
If you are charged with Contempt of Court, you’re going to need to respond to the Court Summons immediately. The Summons is notice to you, delivered often by a Sherriff on behalf of your spouse, alleging you haven’t obeyed the previous court order. You must respond to this notice in a timely manner, generally within 20 days, or you could automatically lose your case.

This timely response is called an Answer. Your attorney must set forth in clear and concise language, relying upon legal theories and precedent, why you didn’t obey the court order. Your spouse and their lawyer will also receive this document, so they have your explanation in writing, within the minimum required time, by rule.

Attending the Court Hearing
If you are in fact guilty of failing to comply with the Court Order you may face an angry judge when attending the court hearing. Never attend a contempt hearing without a lawyer present to protect you or to advocate for you.

The consequences of disobeying a court order can mean you having to pay, sanctions to your spouse, immediately comply with the Order and bring yourself current and pay your spouse’s legal costs.

It is not uncommon for people to be sentenced to the Adult Correctional Facility in RI if they are chronically, habitually or willfully in contempt of the Court Order. No matter the situation of the contempt charge, either prosecuting or defending, you need to find an experienced family law attorney to negotiate the best possible outcome. Contact us directly if you’re involved in family law matter involving contempt charges.

Does my Spouses infidelity matter during my divorce?

The simple answer to this question in Rhode Island is yes. Rhode Island is not a so called community property state. Rhode Island is considered an equitable distribution state. This means a judge divides the marital assets, and marital debts, in accordance with equity, or fairness.

A Judge will absolutely consider a spouses infidelity when determining how to divide assets and debts. However, I must caution you that you will need to prove with particularity the alleged infidelity. Yes, this generally means audio or video proof. However, it could also come by a simple admission by your spouse.

Finally, a Judge will be reluctant to consider infidelity unless the marital estate warrants the consideration of the same. In other words, if you have a combined marital estate of $50,000.00 in assets, a Judge will not want to be bothered with discussing these issues. The main reason for that is the infidelity is rarely worth more than about a 10% shift in the distribution of marital assets. [Read more…]

Do children have a voice in the divorce or child custody process?

by Attorney Christopher E. Heberg

It’s an often-heard comment:  It’s the kids who suffer most when their parents separate and divorce.  Although this is undoubtedly true in many cases, in Rhode Island there is a concerted effort to at least ensure that the “voice” of the child is heard and taken into consideration by the parents in resolving their disputes, and by the family courts that hear cases.

The principle behind this is obvious:  Since children are inevitably and profoundly affected by their parents’ settlement agreements and by the court orders that spring from the process, it is only fair that their views and wishes are at least considered before their lives are involuntarily and irrevocably changed. Children can have a significant impact upon which parent has physical custody, where they will be living, and how often they see the non-custodial parent. [Read more…]

What is a Prenuptial Agreement?

by Attorney Christopher E. Heberg

Happy couples who decide to get married rarely consider what will happen if my fiancé and I were to divorce. Many times people bring an asset, like a home or 401k, into a marriage and they wish to protect, and keep that, asset as separate property. If this is a consideration, they should consider a prenuptial agreement.

Most people have heard about a pre-nuptial agreement, but don’t really know exactly what it is. Basically, a pre-nuptial agreement is a contract between two parties, entered into before marriage which specifically identifies how certain property will be treated during the marriage, and upon the unfortunate dissolution of the marriage.

The contract identifies all assets that each party is bringing into the marriage. Some or all of a person’s assets may be labeled as separate property. Generally, the characterization of the asset continues during the course of the marriage and dissolution of the marriage. [Read more…]

How is Child Custody Determined in Rhode Island?

by Attorney Christopher E. Heberg

Generally, custody decisions are quite complicated and take months of negotiation and Court appearances to resolve. Unfortunately that means they can often be expensive as well. However, through good preparation and quality lawyering, you should be able to achieve your desired result.

While the process is complicated, and the Court will consider many things, Rhode Island law requires the Judge to consider several very specific factors prior to awarding one party custody.

The numerous aspects that they look at include:

  • Whether both parties are “fit and proper” to be parents
  • Both parents’ wishes regarding the custodial arrangement
  • The home and school adjustments the kids will have to make [Read more…]

How Do Divorce Modifications Work?

by Attorney Christopher E. Heberg

1. Modification. While you should not act contrary to your Decree or Court Order without consulting your attorney, it is possible that the agreement you originally made regarding child support, custody and division of property is no longer functional. Please also do not wait if you believe there has been a substantial change in circumstances warranting a modification of you agreement. It is important for you to contact your attorney immediately so that they can begin protecting your rights as soon as possible. Please note that certain portions of a Property Settlement Agreements are not modifiable, and that may include alimony and property division.

2. Contempt. If you owe child support and cannot pay, please be certain to contact your attorney immediately. The sooner they can take steps to protect you, the better. If you are owed support, you should wait approximately two (2) weeks and then contact your attorney who can then take any steps necessary to protect your rights. You should never retaliate against your ex for their contempt. If you do this, your own failure to comply with the terms of the Decree may inhibit your ability to hold your ex in Contempt of Court.

3. Alimony. Be certain to consult with your attorney if you believe an event terminating alimony has occurred or may occur immanently. Please note that alimony is generally deductible to the payer and includable to the receiver’s income. You should always consult an accountant relative to these issues. [Read more…]

Do I need to file something when kids are emancipated?

Additional Information:

One of my kids is graduating from Providence College next month.  The settlement agreement says kids are emancipated upon completion of a four year degree. Can I stop paying child support as soon as he graduates or must I file something with the Court?

ATTORNEY ANSWER:

Interesting question. I think you probably must file a motion to stop the payment of support. While support in RI normally terminates upon graduation form high school, it sounds like you contracted to pay for a longer period of time. As such, it may be necessary to have a court affirm that the obligation is over. Moreover, RI has recently passed legislation allowing for child support to essentially go on permanently and you want to make sure you get a definitive ruling terminating your obligation.  [Read more…]

Will my ex get half of my house and 401K even though we’ve been separated for years?

Additional Information:

Can my wife that I have been separated from for 30 years get half of my house and 401k?  I married my wife in ’82 and we separated in ’85. We didn’t get divorced but we are both seeing someone else. She has her own place and also retirement benefits from her job,  so can she really get half of my home in Elmwood and take half of my 401k when we get divorced?

ATTORNEY ANSWER:

Unfortunately, she has a very solid claim to ½ of your home. Of course you also have a claim to ½ of her 401k or home. Any assets acquired by either of you are subject to potential division. In your case, you may be able to argue that she never contributed to the acquisition or preservation of the asset and as such should not be entitled to the home. However, your failure to file a divorce in over thirty year unfortunately has consequences.  [Read more…]

What are the requirements for an annulment in RI?

Additional Information:

My boyfriend and I got married 3 months ago, and I now realize we rushed into things.  How do I know if I am eligible for getting an annulment in Rhode Island?

ATTORNEY ANSWER:

Unfortunately, the fact that you rushed into it is not a basis for an annulment. While you certainly may regret getting married, unless you can prove that you had no idea what you were doing when you married or did not marry the actual person you thought you were marrying, you have little or no chance to annul a marriage.   [Read more…]