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Uncontested Divorce in Rhode Island by a Family Law Attorney
This article explores the different types of uncontested divorce in Rhode Island and explains the process of obtaining an uncontested divorce. Uncontested divorces should be much less expensive then contested cases. It is a bad idea for someone to try to represent themselves without a Rhode Island lawyer in a divorce or family law matter.
The phrase "uncontested divorce" often means different things to different people. In my ten years of experience, I have seen many different types of cases in which people claim that the divorce is uncontested.
No assets and no children
This is a true uncontested divorce! The parties have no assets, no real estate , no children and no joint debt. No property settlement agreement is needed. However, a significant amount of work is still required by the lawyer. The parties still must go to court for a nominal divorce hearing. However, this type of divorce takes the least amount of time for an attorney. Therefore, it should be less expensive. I believe that attorneys should offer flat a fee divorce when there are no assets and no issues to resolve.
Property division and / or children involved
In an uncontested divorce, the husband and wife agree to all or substantially all of the issues between the parties including if applicable property division, child support, child custody, child visitation, alimony, automobile issues, real estate issues, debt issues etc. However, despite the agreements, there may still be details to iron out! The parties may need a property settlement agreement memorializing their agreements.
If there are assets that need to be divided then the family law lawyer may need to prepare a property settlement agreement, deeds, mortgages, promissory notes, qualified domestic relation orders (QDRO) etc. For example, if the parties need to divide a retirement account the lawyer must prepare a qualified domestic relations order.
Therefore, the cost of the divorce could vary depending on the circumstances. For example if a lawyer has to draft a property settlement agreement than he/she will devote more time to the case.
What extra work is needed to divide a retirement account?
In order to split a retirement account, Individual Retirement Account (IRA), pension, 401k, 403b, defined benefit plan, defined contribution plan or stock options, the lawyer must prepare a qualified domestic restraining order otherwise known as a QDRO so that there are no tax implications for the parties. That QDRO must be approved by the plan administrator for the retirement plan. It also must be entered as an order of the Family Court as well as sent to the plan administrator for implementation.
"Uncontested" divorce which is really "minimally" contested
Some people claim that the divorce is "uncontested" but it is actually minimally contested. In this scenario, the parties agree to most major issues but have some minor issues to work out. For example, the parties may agree that there will be reasonable visitation but not agree as to the actual dates and times. The parties may agree to child support or child custody but not agree to all the particulars. The parties may agree that the marital domicile is to be sold as soon as possible by a Licensed realtor but have not agreed on the listing price of the home or have not agreed how the proceeds from the sale will be divided.
This type of case is usually more expensive than a true uncontested divorce because the lawyers will have to get more involved in negotiation and attempting to work out the points of contention. Furthermore, the Lawyer may need to draft a property settlement agreement setting forth in writing issue concerning the marital domicile, equitable division of property, child custody, child support and visitation issues.
"Uncontested" divorce which really is contested
I have seen countless times when a client says that the divorce is uncontested. I then ask them to explain the agreement. The response is sometimes: 'we agree that we will agree'. As we all know, the devil can be in the details! An agreement to agree is not necessarily an agreement because nothing has been agreed to except that the parties think that they will agree.
Often people claim that the actual divorce is not being contested. Whether or not a person will dispute the obtaining of the actual divorce is immaterial because Rhode Island is a "no fault" state. If one party wants to terminate the marriage and meets the residency requirements they can obtain a divorce whether or not the other party agrees to it or not.
Intake process, drafting divorce documents for filing and filing
There is typically an intake process in which the lawyer gets the basic information so that he or she can properly represent you. The attorney typically drafts the documents and you sign them in front of him/her or another notary. These documents include a complaint, DR(6) financial statement, statement of children of the marriage, counseling statement, summons and automatic divorce order etc.
It is important that the DR6 form otherwise known as financial statement is accurately filled out. After the documents have been signed and notarized, the case must be filed. A Court date of approximately 65 days will be set by the Court. The Defendant must be served by the constable. If the Defendant lives out of state he or she can be served by certified mail.
Nominal or Contested Track
When a divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in his or her initial filing designates the track they desire. The vast majority of divorces filed are placed on the "nominal track". An uncontested divorce should be put onto the nominal track. Designation on the "nominal track" does not necessarily mean that the divorce will be uncontested.
If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the case is not settled by the nominal divorce date then the case will automatically be changed to the contested track.
On the date of the nominal hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve any 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 divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of a future conference date.
A hearing is required under Rhode Island law!
Pursuant to Rhode Island General Law a divorce cannot be resolved without a nominal 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 to briefly testify to prove residency. If you don't have the required witnesses your case could be delayed or even dismissed and you may waste your time attending court.
Residency in Rhode Island
Is it necessary to prove compliance with the residency requirements at the "nominal hearing" in order to obtain an uncontested divorce? Yes!
In order to file for divorce you need to have been a domiciled inhabitant and resident of Rhode Island for one year prior to your filing of the complaint. If you have not been a domiciled inhabitant and resident of RI for one year prior to filing your complaint for divorce, you can file based on your husband's / wife's residency for one year prior to the filing. It does not matter if you change your residency or move out of town the next day so long as you were a resident on the date of the filing and for one year prior!
(There are exceptions for people in the armed forces (army, navy, air force, marines, military) who are stationed in other states or countries)
Proof of Residency
In order to prove residency, it is sufficient, if both parties appear at the nominal court date and testify that at least one of the parties was a domiciled inhabitant and resident of Rhode Island for one year prior to the filing of the complaint for divorce. The Family Court will typically waive the requirement for additional witness if both husband and wife attend the nominal court date and testify that at least one party had the requisite residency as set forth above.
If only one party attends the nominal court date then you need one of the following in order to obtain a divorce (a) two additional witnesses in court to testify to the one year residency of the Plaintiff or Defendant (b) one witness in court to testify to the one year residency of the Plaintiff and an affidavit from a different witness attesting to the person's residency. (This affidavit form can be easily obtained by the clerk of the Rhode Island Family Court.)
If you do not meet these requirements to prove residency your case may be dismissed or you may be given additional time to obtain the necessary witnesses or affidavit.
What County in the family Court should the case be filed in?
Please note that all the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures. However, each County has different Summons. Make sure that your divorce case is filed in the appropriate County. At least one of the parties must reside in the County in order to file in that County. In Some Counties the same judge will hear the entire case.
In Providence County, the nominal hearing will usually be sent to a magistrate. Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol and other towns and cities. Kent County includes Warwick & East Greenwich as well as other towns. Newport County includes Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield etc.
Is representing myself "pro se" a good idea?
Pro se is a latin word which means a person represents themselves. Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. 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 lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the divorce process without a family law lawyer.
Documentation to finalize process
After the nominal Court date a Decision Pending Entry and Final Judgment must be submitted to the Court and signed by the Judge. Without a final judgment signed by the judge and entered as an order of the Court, the divorce will not be final and you will remain married.
Rhode Island is an equitable division state; courts divide property equitably. This does not mean equally but fairly. The court considers several factors if the parties have not agreed beforehand on distribution, including the duration of the marriage, each spouse's contribution to acquiring and maintaining the property, the best interests of the children if applicable, contribution of one spouse to the earning capacity of the other, and income, among other things.
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