RI Divorce Laws You Should Know

Divorce Laws In Rhode Island – What You Should Know

This is a overview of the five Rhode Island Divorce Laws covering the important issues that generally cause the most conflict and anxiety for all divorcing couples. There’s also a brief overview of a few laws pertaining to divorce procedure and filing requirements and definitions of commonly used legal terminology used in divorce paperwork. For specific legal advice regarding the effect of these laws in your divorce always consult with a licensed attorney.

Dividing Marital Property

• “In addition to or in lieu of an order to pay spousal support made pursuant to a complaint for divorce, the court may assign to either the husband or wife a portion of the estate of the other.” From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.1.
• The RI Family Court uses what’s described as the “Equitable Distribution” method to settle marital property disputes if a divorcing couple can’t reach a settlement on their own. The Equitable Distribution method is used to divide marital property fairly in a legally defined sense – and this doesn’t always automatically divide everything 50/50 down the middle. Like the awarding of Alimony, the formula is based on the length of the marriage; the parties’ individual income levels and financial contributions to their marital assets; the parties’ education or job related skills; the length of time out of the workforce caring for children and the home and a number of other factors. Pre-marital personal property and assets may be taken into account and set aside (with certain exceptions) if they exist, and the property settlement is typically determined before Alimony is awarded, if applicable. Typically, when a couple decides to divorce they feel a 50/50 split is fair and may agree verbally on such a division of assets and debt between themselves. But unfortunately, what can happen after they each consult with two different attorneys – telling two different versions of why their marriage is in trouble – they may come away with two different legal opinions as to what they’re entitled to and both believe they know the truth. This puts them at odds with each other right from the start. The truth is that if you both want 50% of what you had before you decided to divorce – not 50% of what’s left after you spend thousands of your hard earned dollars on legal fees fighting in court – the wisest and most reliable way to do this is to remain committed to avoiding an expensive legal battle and the best way to do this is to use divorce mediation to create your divorce settlement. Together.

Paying Child Support

• “In a proceeding for divorce, divorce from bed and board, a miscellaneous petition without the filing of divorce proceedings, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted by an administrative order of the family court.”From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.2.
• Child Support payments are based on the financial resources and income of the custodial parent; the standard of living the child would have enjoyed had the marriage not ended; the financial resources and income of the non-custodial parent and other factors and the legal obligation ends on the child’s 18th birthday or 90 days after high school graduation – unless, under IRS rules, the young adult child may be declared as a legal dependent. Check with your accountant or tax preparer to properly determine if this may apply to your children. The payment amount is calculated using the R.I. Child Support Guidelines which are based on the Income Shares method of determining financial support for children and are revised periodically by the court. Child support is not taxable for the recipient, or tax deductible for the payer and can be modified by petitioning the court and submitting the necessary evidence for approval of the change. Common examples of approved reasons for modifying child support are a substantial change in the cost of the children’s health insurance premiums or day care, one parties’ employment status or a major increase or decrease in either parties’ gross monthly income. Any modifications to the court ordered child support amount must be approved and granted by the court and the payment process is monitored by the R.I. Office of Child Support Services. Closely behind Alimony as possibly the most contentious financial issue between divorced parents, calculating child support has become more complex in recent years because of legitimate modifications and the increased number of divorcing parents wanting to customize their child custody/child placement arrangements. Child support is typically collected and paid to the recipient by a garnishment of the payer’s wages or salary by court order, with the recipient needing to waive this process during the divorce proceeding if they trust the other party and feel this isn’t necessary. Make no mistake, family court systems take this issue very seriously and the proliferation of stricter laws and the existence of organizations in all 50 states empowered to collect unpaid child support is evidence of this fact. Legal remedies and penalties for non-payment of child support start with mandatory garnishment of the payer’s wages or salary or even the seizure of various types of bank accounts, insurance settlements, income tax returns, inheritances and lottery jackpot winnings, in addition to the confiscation and sale of financial assets such as real estate, investments, automobiles and more.

Deciding Child Custody, Physical Placement and Visitation

• “In regulating the custody of the children, the court shall provide for the reasonable right of visitation by the natural parent not having custody of the children, except upon the showing of cause why the right should not be granted”. From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.
• Family Court judges determine child custody based on what is believed to be in the best interests of the child although they will typically take into consideration the wishes of the parents in their decision also. Legal child custody is loosely defined as the day to day care, control and maintenance of a child and may be awarded to just one parent (sole legal custody), or shared by both (joint legal custody) depending on the circumstances. The physical possession, or child placement is a secondary aspect of the issue and it’s generally awarded to one parent whom the court designates as “the custodial parent”, with the other “non-custodial parent” having a regularly scheduled visitation or ‘time-sharing’ schedule. The court is usually flexible about modifying the arrangements to suit the couple if the divorce is reasonably amicable and both parties present as loving, responsible parents. Granting sole legal custody to just one parent is done in situations where there is evidence of abuse of the child by the other parent or evidence of that parent having substance abuse problems, severe mental or emotional health issues, is prone to violence or a convicted criminal with repeat offenses and the burden of proof is high. In such instances, the court may allow short, supervised visitation sessions but in extreme cases it may strip such a parent of their legal visitation rights to their minor child altogether. In recent years, increasing numbers of divorcing parents are choosing a shared child placement living arrangement for their children instead of the usual custody/visitation method the court typically designates, and while it has proven to be much healthier for the children it makes calculating child support more complicated. Divorcing couples wanting shared physical placement – a more equal amount of not only time spent with their children, but also the responsibilities of raising them – then implement a more cooperative sharing of children’s expenses plan instead of the usual custody/visitation – payer/recipient method. But because the process is more complex and requires additional calculations to pass muster with the court, the scrutiny of the parties’ living arrangements, their work schedules and their financial resources may be greater. We believe the increase in shared child placement arrangements is due to the increased awareness of the positive benefit of children spending as much time with both parents as possible after they divorce. Additionally, the fact that many working mothers are employed in demanding jobs and career level positions requiring more time at work and even work related travel also factors in – and Moms need time for themselves too! But we would suggest that the increasing use of divorce mediation and the sense of fairness and cooperation it teaches receptive couples – despite their divorce – makes a shared co-parenting plan actually workable.

Awarding Alimony

• “Alimony is designed to provide support for a spouse for a reasonable length of time to enable the recipient to become financially independent and self-sufficient.” From the R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-16.
• Alimony, or spousal support, the ongoing financial support payments paid to a former spouse for a designated period of time is awarded by the judge and based on the length of the marriage; the parties’ conduct and fidelity during their marriage in some instances; their overall health and age; their individual education and earning potential after the divorce; the length of time out of the workforce caring for children and the home and a number of other factors and it is not automatically awarded in every divorce. Very Important Fact:As of January 1st, 2019, alimony is no longer tax deductible for the payer or taxable for the recipient. This is due to the Tax Cuts and Jobs Act of 2017 passed by Congress. If you, like we do, feel this is unfair and unwarranted, we encourage you share your thoughts with your representatives in Congress and the Senate. Given the recent changes in the income tax status of alimony payments under federal law, this subject is likely to remain a contentious financial issue when couples divorce due to the fact that for the payer, it’s often piggybacked on top of child support payments, and for the recipient it can be vital to their financial stability once they separate and live apart. Another unfortunate reason alimony is such a sensitive subject is because the legitimate need and reason for ongoing spousal support payments is often overshadowed by the aggressive use of it by divorce attorneys as a tool for financial punishment and even humiliation of their client’s opponent. In contrast, during our divorce mediation sessions the detailed financial reports we provide our divorcing couples give a realistic picture of both the need by one party and the ability to pay by the other and this can make a world of difference when they’re trying to agree on a fair settlement. The honest, open discussion of this information plus the lack of aggression and courtroom drama can make the subject of necessary alimony payments much easier to discuss and agree on.

Health Insurance Coverage For A Former Spouse

• “In the event of a final judgment of divorce, whether absolute or otherwise, where one party to the divorce was at the time of the entry of the judgment for divorce a member of a health plan providing family coverage […] or a member of a health maintenance organization […] or any similar health plan […] the person who was the spouse of the party prior to the entry of judgment for divorce may remain eligible for continuing benefits under the plan and health maintenance organization without additional premium or examination if the order is included in the judgment when entered.” From the R.I. General Laws: Title 27 Insurance – Insurance Continuation Act § 27-20.4-1 .
• Remaining covered under your ex-spouse’s health insurance policy is addressed by the RI State Law quoted above and the federal regulations often referred to as “COBRA”. However, if you’re looking for the answer as to how these laws apply to your situation – whether you’re the covered employee or the possibly not covered ex-spouse – you’ll need to do a little bit of research and the best place to start is with the employer sponsoring your current plan. Get a copy of the company’s health insurance benefit policy and the current cost schedule for coverage – in writing – you’re likely to need it during your divorce settlement negotiations anyway. If you both have access to employer-sponsored health insurance coverage you should both obtain this information for a cost and benefit comparison. The company is required by law to assist and inform you of your rights on this matter. By law the length of time you could remain on a former spouse’s health insurance policy under used to be 36 months under COBRA, but with the passage of the Affordable Care Act, that window was shortened to 18 months, presumably since the ACA made health insurance coverage available to individuals privately. What we see working with our clients, more often than not, is that employers will discontinue coverage for an employee’s former spouse unless it is mandated in their divorce decree by the judge at the time of their divorce. There is no hard and fast rule that will apply to everybody on this issue as employers are entitled to set their own policies so it’s important to do your due diligence for your own peace of mind on this important matter.

The Affordable Care Act

The Affordable Care Act is still in effect at the time of this writing, but but some of the rules and regulations have changed since it went into effect in 2014. What has remained is the ability for someone to sign up and pay for health insurance with a provider without having to go through their employer. What is no longer in effect is the “individual mandate”, the legal requirement to pay for a health coverage plan and the possible IRS penalty imposed when you file your income taxes if you fail to do so. This and other health insurance availability and coverage concerns is a politically contentious issue that is constantly being debated in Congress, so it would be in your best interest to stay well informed on the status of the law and any possible changes that may be implemented in the future. Because of the out-of-pocket expense and uncertain nature of eligibility for an ex-spouse, discussions about health care can get pretty tense pretty quickly… As part of our commitment to our divorce mediation clients we make every effort to be creative in helping couples integrate this expense fairly and equitably into their divorce agreement.

RI Divorce Laws Governing Filing Procedure and Other Divorce Issues

Grounds For Divorce

• The grounds for divorce in Rhode Island are Irreconcilable Differences, Living Separate and Apart Without Cohabitation For Three Years, Impotency, Adultery, Extreme Cruelty, Willful Desertion For Five Years (or at the discretion of the court) , Habitual Drunkenness, Habitual Drug Use, Neglect and Refusal of Support (for at least one year), Gross Misbehavior and Wickedness (in violation of the marriage covenant).R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-2, § 15-5-3, § 15-5-3.1.

Residency Requirements

• You must be a resident of Rhode Island for one year to file for divorce under Rhode Island law.R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-12.

Changing Your Name After Your Divorce

• A divorced woman may restore her maiden name.R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-17.

Court Mandated Mediation For Child Custody and Visitation Matters

• The court can mandate mediation in child custody and visitation matters to help a couple resolve their differences. R.I. General Laws: Title 15 Domestic Relations – Divorce and Separation § 15-5-29.

Commonly Used Legal Terminology

Plaintiff – The “plaintiff” is the person initiating the legal proceeding; the person filing the complaint for divorce.
Defendant – The “defendant” is the other party to the divorce proceeding; the person the suit is being filed against.
Litigation – The act or process in and of itself, of bringing a lawsuit before the court; a judicial contest; an action brought in court.
Motion – A written or oral request made to the court to obtain a ruling; an order directing that some act be done in favor of the person making the request.
Order – The direction of the court normally made or entered in writing, and not included in a judgment, which determines a point or directs some step in the proceedings.
Decree – A judgment of a court that announces the final legal ruling on the facts of the case and orders that the court’s decision be carried out; the final decision.
Process of Service – Usually done by a Constable of the Court, the act of serving formal notification of a legal action taken against someone; example: “being served with divorce papers”.
Continuance – An adjournment or postponement of an action pending in the court to a later date, granted by the court in response to a motion made by a party to a lawsuit.