Kenneth Kando Attorney at Law
 
Personal and confidential legal representation.

Divorce

• In Rhode Island, all matters involving the division of martial property, temporary allowances, alimony and the dissolution of marriages, or matters involving child support and custody of minor children, and are heard in the Family Court. (In Massachusetts, the Probate Court has jurisdiction over such matters.)

• Marriage is a contract, and dissolution of a marriage is a legal procedure that can only occur by way of a Final Judgment of Divorce entered in the Family Court.

• Even if the parties agree on the terms of an “uncontested divorce”, the specific terms of that agreement must be presented to and approved by the Court.

• In the event of a “contested divorce”, the Court must determine which property is property of the marriage subject to division between the parties, whether either party is entitled to alimony and for how long, and also matters pertaining to custody and support of any minor children (under 18 years old or older if still in high school).

 

Property of the Marriage:

• Generally, all property accumulated during the course of the marriage, whether real estate or personal property (including bank account and investment funds, pension benefits, jewelry, cars, etc.) may be deemed to be “marital property”) and subject to division between the parties.

• There are exceptions. For example, property owned by one party prior to the marriage or acquired by one party by way of inheritance or gift, if kept separate from "martial property", is generally deemed to belong to that party alone and is not subject to division during the divorce.

• However, the act of comingling property belonging to one party with "martial property" is generally deemed to be a "gift" of half to the other party. In such a case, solely owned property can become "martial property." For example, the act of transferring funds inherited from a deceased family member into a joint bank account of a couple is generally deemed to re-characterize those funds as martial property.

• Prenuptial Agreements, if properly prepared and executed, can alter, to some degree, what property is deemed to be "martial property." These agreements are governed by the Rhode Island Uniform Premarital Agreement Act.

 

Alimony and Counsel Fees:

• Alimony is support paid by one party to the other party and does not include child support. Generally, if one party has substantially more income than the other party, the party with more income may be required to pay alimony. By law, alimony is payable for a term of years (often 3 years), but may be indefinite under circumstances showing a need by one party. However, even if indefinite alimony is awarded, a change in circumstances may form the basis of a modification of alimony.

• In addition to alimony, a party may be ordered to pay the attorney fees of the other party. Again, the Court must determine the needs of the parties in making such a determination.

 

Child Custody and Support:

• When the parties to a divorce have minor children, both parents will have “joint custody” as long as neither parent was found to be neglectful or pose a risk to the child(ren). One party is often given “placement” of the children and the other awarded “visitation”. The parent with placement is ordinarily awarded child support from the parent that is awarded visitation.

• The amount payable for child support is based upon federal guidelines. (Although divorce is a matter of state law, the federal government has imposed these standards on the states as a condition of receiving federal funds.) Under the federal guidelines, the number of children, each party’s income or income potential, and allowable deductions are applied to a formula used to determine a total amount for child support and each party's share of the amount. 

• Job loss or any "significant" change in circumstances can be the basis of a modification in the child support order. 

 

Unmarried Parents of Minor Children:

The Family Court has jurisdiction over child custody and child support involving minor children of unmarried parents in the same manner as the minor children of married parents. However, the Family Court does not have jurisdiction over the property of unmarried parents. Instead, the Superior Court may determine the ownership of property held by an unmarried couple.