Edward G. Lawson

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THINKING OF DIVORCE? Part III: Children & Custody Issues

November 14, 2016 By Nicholas DaSilva

Part Three of our Four part series addresses children and custodial issues that may arise throughout the divorce process. This informational series will be useful to assist in reducing problems while obtaining your divorce in Rhode Island.

1.    Children – unless there are special circumstances, generally both parties are granted joint custody with physical placement of the minor child (children) placed with either one or the other party and the non-custodial parent being granted visitation rights.  If custody or placement become contested issues, there are a minimum of eight factors that the court must consider in the best interest of the child or children in determining custodial, placement and visitation rights.

2.    Custody – In Rhode Island there are two types of Custody:

a.    Joint Custody – both parties share more or less equal decision making in respect to the major health, education, welfare and social aspects of the child. Both parties have joint rights to the child.  The custodial parent makes most of the minor, day to day decisions.  The non-custodial parent however, has a right to be involved in major decisions concerning the child and has a right to any and all information and documents relating to the child’s health, education, welfare and social activities. It is important that both parties keep each other informed as to each other’s phone numbers and addresses. If the non-custodial parent objects to some action on the part of the custodial parent, it would be necessary to file a motion to prevent or terminate the action on the part of the custodial parent.

b.    Sole Custody – only one party is granted custody due to extenuating circumstances such as, but not limited to:

(1)    alcohol and/or substance abuse,
(2)    medical or mental disability or infirmity making it impossible or difficult for the non-custodial parent to participate in the decision making process regarding the health, education and welfare of the child,
(3)    criminal problems,
(4)    domestic abuse problems,
(5)    unfamiliarity of the other parent with the child,
(6)    neglect or abuse of the child,
(7)    non-custodial parent has no interest in the child.

3.    Placement of the Minor Children–

a.    Generally: the children are placed with the mother.  However, it is not uncommon for children to be placed with the father.  If the parties disagree then the Rhode Island Supreme Court cases set out the eight factors that have to be considered and a decision by the court will be made as to whom the child or children are placed with in the best interest of the children.

b.    Shared: infrequent as this concept is it is often difficult to make it work smoothly, the parties work out an arrangement where the child or children go back and forth between parents.  Some of the reasons are financial, educational, employment and availability of either one of the parents.

4.    Visitation–

a.    Generally – depending on the age of the minors involved, usually the non-custodial spouse has overnight visitation rights every other weekend, maybe one or two afternoons a week, and maybe an extended period during vacations.

b.    Reasonable Rights – if the parties have a good relationship then occasionally, no specific times will be set forth in the decree, the parties can work it out depending on their respective schedules.

c.    Special Circumstances:

i.    Disagreement between the parties as to time and place can lead to court intervention through mediation, home studies and possibly a court hearing with both parties presenting both lay and expert witnesses – a very expensive procedure.  The court again takes into consideration at a minimum, the eight factors delineated by the Rhode Island Supreme Court.

ii.    Supervised visitation can be ordered when the non-custodial spouse has provable, personal issues that place the child at risk or during a re-introduction period when the non-custodial parent has not seen the child for some time and/or the child is very young.

iii.    Termination of Visitation Rights can occur if it can be demonstrated that the non-custodial parent for among other reasons:
(1)    becomes abusive or neglectful of the children,
(2)    is a substance abuser in the presence of the children,
(3)    frequently misses or is late for visits

d.    Special Circumstances regarding children – the judges that rule over divorce issues, in particular children, have different points of view. Some are more strict than others, although most are fairly objective.  Depending on the judge, the following are examples of what may or may not be important:

i.    Visitation in the presence of an unrelated adult of the opposite sex,
ii.    Leaving the state with the children for an extended period of time without the consent of either the other parent or the Court,
iii.    Living with someone else before the divorce is final and expecting visitation, overnight or otherwise,
iv.    Living with your wife (possibly for financial reasons) during the divorce and/or at the time of the hearing date.

Please stay tuned for the next part in our “Thinking of Divorce” series pertaining to child support, alimony and the division of assets. Of course, if you need immediate assistance or information please call one of our expert divorce attorneys at (401) 725-1810.

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Filed Under: Alimony, Child Support, Custody, Divorce, Family Law, Visitation Tagged With: child support, custodial issues, custody issues, divorce, Divorce law, family law, joint custody, placement of minor children, sole custody, visitation rights

THINKING OF DIVORCE? Part II: Divorce Documents, Cost & Service

July 8, 2016 By Nicholas DaSilva

Part Two of our Four part series discusses the specific documents required for filing a divorce, along with the cost and service associated with it. This informational series will be useful to assist in reducing problems while obtaining your divorce in Rhode Island.

Documents Required for Filing – The following minimum documents are required for filing a petition:

1. Marriage certificate. It can be a copy or a foreign certificate. If it is in a foreign language an informal translation is required.

2. Summons.

3. Complaint or Petition for Divorce outlining the grounds for divorce and a general demand of what you are seeking. This demand includes topics like custody, placement and visitation of minor children and an equitable division of marital property. A party may ask to decline alimony and the wife may request that she resume her maiden name. When the issues are complicated the demand may be more specified in a document attached to the complaint.

4. A list of names, ages and residency of all minor children born during the marriage. There is a refutable presumption that all children born during the marriage are the biological offspring of both parties.

5. Financial statement called a DR-6.

Additional documents frequently filed:

a. Motion for Temporary Orders – one of the parties, usually the filing party, may ask for temporary joint custody and placement of the children, along with sole use and occupancy of the marital domicile, support for the children, funds to maintain the home and any other reasonable request to keep the family functioning. This motion will be given a hearing date prior to nominal date.

b. Emergency or Ex-Parte Motion – in cases where domestic violence or abuse, drugs, alcohol, dissipation of assets, or other activities on behalf of the other party to the detriment of the filing party, the filing party or responding party can ask for an emergency or ex-parte (one sided) immediate, temporary order for sole custody, placement, limited, supervised or suspension of visitation of minor children, child support, or a restraining order against the other party.

c. Cost – The cost of a divorce depends on if there are minor children, the nature and extent of assets and whether you and your spouse are disagreeing as to custody, placement and visitation of the children, as well as how to divide the assets.

d. Service on the defendant – the other party must be served twenty days or more prior to the nominal date. It is necessary to serve the defendant spouse the Summons and Complaint for Divorce in order for the divorce to be heard. It is critical to know where your spouse resides and/or works to obtain effective service.

Service can be obtained:

1. In hand by a constable at work or at home, which can be fulfilled by an appointment for privacy reasons.

2. If your spouse lives out of state, you know where your spouse lives and your spouse is willing to cooperate, service can be accomplished by e-mailing the documents for an e-mailed response, and/or by certified mail where your spouse signs for the certified documents. If your spouse is uncooperative and we know where your spouse works or lives, we can arrange for a local constable to serve your spouse at either location.

3. If you do not know where your spouse lives, but you do know the last known city and state of your spouse’s residency we can advertise as a last resort. Advertising can cost between $600.00 to $1,000.00 depending on the city.

4. If your spouse lives in a foreign country, depending on the reliability of the mail and if your spouse is cooperative, international certified mail can be used. Otherwise, it can be arranged through a friend or a government agent in that country for your spouse to be served.

Please stay tuned for the next part in our “Thinking of Divorce” series regarding children and custodial issues that may arise throughout the divorce process. Of course, if you need immediate assistance or information please call one of our expert divorce attorneys now at (401) 725-1810.

Le divorce

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Filed Under: Alimony, Child Support, Custody, Divorce, Family Law, Uncategorized, Visitation Tagged With: divorce cost, divorce documents, Divorce law, divorce lawyer, divorce service

THINKING OF DIVORCE? Part I: Types & Requirements

May 11, 2016 By Nicholas DaSilva

Part One of our Four part series will take a look at the different types of divorce along with the factors and requirements that separate them. This informational series will be useful to assist in reducing problems while obtaining your divorce in Rhode Island.

1. Residency Requirements – To obtain a divorce in Rhode Island you must be a resident for one year or more. If you are not a resident but your spouse is and has been a resident of Rhode Island for at least one year you can file a petition using the residency of your spouse to justify filing your petition in Rhode Island.

2. Time to Obtain a Divorce – Upon filing, a “nominal” date is set which is normally three months from filing. Assuming you have a hearing on that date it takes another three months for the divorce to finalize. An uncontested divorce with no issues/problems can be heard by the court within 60 days of filing after which time you will receive a certified copy of the Decision Pending Final Judgment. Thereafter,

a. If the reasons for the divorce were “irreconcilable differences” you must wait another 90 days (unless a motion is presented to the Chief Judge to shorten the time – unusual) before it is final at which time we will provide a certified copy of a Final Judgment for you.

b. If reason was due to living separately/apart for more than three years then the waiting period until you obtain your Final Judgment is twenty days after filing of the Decision Pending Final Judgment.

3. Kinds of Divorce – There are two kinds of divorce in Rhode Island:

a. Nominal: this is basically an uncontested divorce. To reach this stage often involves extensive negotiations between the parties either directly, through their attorneys, mediation or a combination of the preceding. The most prevalent/efficient method of resolving differences is through attorney to attorney negotiations frequently involving the parties in the discussions.

b. Contested: when the parties cannot agree on issues concerning placement, custody or visitation of the minor children (under age of 18) or parties cannot agree on an equitable division of the assets considered to be marital, eventually a trial is held and a family court judge or magistrate decides these issues.

4. Grounds for Divorce – There are several reasons in Rhode Island that are grounds for the basis of a divorce. They are:

a. “Irreconcilable differences leading to an irretrievable breakdown of the marriage.” This is the most commonly used reason for divorce and is often referred to as a “no fault” divorce. However, irreconcilable differences is a broad term that can cover a virtually endless list of reasons. Once the parties have reached an agreement it is the practice of this office to suggest to the court that the reasons are the parties argued, fought and developed separate lifestyles. Our belief; there is no reason to spell out specific details of why a marriage failed saving embarrassment of either or both parties.

b. “Living separate and apart for more than three years.” If you have not co-habituated (lived together as husband and wife in the same home nor been intimate) for more than three years, filing for this reason will speed up the process and you would receive your final judgment twenty days after filing the Decision Pending Final Judgment.

c. Additional but rarely utilized grounds for divorce:

i. Impotency;
ii. Adultery;
iii. Extreme cruelty;
iv. Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;
v. Continued drunkenness;
vi. The habitual, excessive, and intemperate use of opium, morphine, or chloral;
vii. Neglect and refusal, for period of at least one year before the filing of the petition, on part of the husband to provide necessities for his wife, the husband being of sufficient ability; and (8) Any other gross misbehavior and wickedness, in either of the parties, in violation of the marriage covenant.

d. Divorces from bed, board, and future cohabitation, until the parties are settled, is another rarely used provision.

Please stay tuned for the next part in our “Thinking of Divorce” series detailing the specific documents required for filing a divorce, as well as the cost and service associated with it. Of course, if you need immediate assistance or information call one of our expert divorce attorneys now at (401) 725-1810.

Divorcelife

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Filed Under: Divorce, Family Law Tagged With: divorce blog, divorce information, Divorce law, divorce lawyer, divorce requirements, divorce residency requirements, family law, grounds for divorce, kinds of divorce, types of divorce

Common Bankruptcy Myths- Fact or Fiction?

August 3, 2015 By Nicholas DaSilva

Fact or Fiction

Common Bankruptcy Myths- FACT OR FICTION?

The internet provides a vast and nearly infinite amount of information about any topic you can imagine. That being said, it should come as a surprise to no one that there is a large amount of information available to people considering filing for bankruptcy. Information in general is a great thing to have. However, misinformation, or inaccurate information can be more problematic than it can be helpful. A quick query on any search engine for “bankruptcy” will undoubtedly lead a person to any number of websites providing them information about the topic. Today, we hope to clarify some of the confusion about filing for bankruptcy and more importantly, debunk some of the myths surrounding it.

1. If I file for bankruptcy I will lose everything I have.

FICTION: This is likely the myth most responsible for dissuading people from filing bankruptcy. The truth of the situation is that only “non-exempt” property of a debtor is sold in order to fund the bankruptcy estate and pay off debts. That undoubtedly begs the question: what is “non-exempt” or “exempt” property? The federal and state bankruptcy codes provide exemptions to protect certain property of the debtors. This is exempt property. Any property that does not fit into an exemption category, or any property that does exceeds the value of the given exemption is considered non-exempt and could be sold to pay off debts. The important thing for any debtor to remember is that in the vast majority of bankruptcy cases, the debtor will finish the bankruptcy proceeding with all of their personal property and assets.

2. All debts are discharged in a bankruptcy proceeding.

FICTION: Although a majority of debts are in fact discharged in a bankruptcy proceeding, there are certain debts which are not discharged. The main areas of non-dischargeable debts include child support and/or alimony payments, some local, state and federal tax obligations (particularly those incurred sooner than 3 years from the filing), student loans and restitution for criminal acts incurred as the result of fraud.

3. My credit will be ruined forever.

FICTION: This is a very common misconception about filing bankruptcy. Although the bankruptcy does have a long-term effect on your credit score as it remains on your report for 10 years, it often surprises people to see that their credit score may improve slightly immediately after filing. Further, it will not be long before certain credit card companies begin sending offers for cards, albeit with high interest rates and very low balances. However, the opportunity will still arise shortly after filing to begin the rebuilding process. Larger purchases like a home may be more difficult to be approved for initially, but may be possible within a few years after a bankruptcy filing. There are even companies who work with debtors to facilitate the purchase of a vehicle following a bankruptcy filing.

4. Only irresponsible people file for bankruptcy.

FICTION: There is no denying that many irresponsible people have filed for bankruptcy. What people don’t realize is that many more responsible and hardworking people have filed after having no other alternative. The reality is that life sometimes takes a turn for the worst- people get sick, lose their jobs, experience marital problems or legal problems, among others. When these unfortunate circumstances arise, people who had always paid bills and paid them on-time, now find themselves unable to pay. They then turn to filing bankruptcy to get themselves a fresh start. In fact, this is the reason that our forefathers chose to constitutionally guarantee the right to file bankruptcy. Surely our forefathers did not intend to reward people for spending lavishly and living beyond their means- they meant to provide the opportunity for a constitutionally guaranteed fresh start.

5. Filing bankruptcy is the only true, surefire way of getting rid of debt and getting a fresh financial start.

FACT: Today there are many companies out there who promise to relieve people of their debts while avoiding filing for bankruptcy. These companies typically offer debt consolidation services where they settle your debts for a certain percentage of what is actually owed, saving the debtor what is seemingly a substantial amount of money. However, what debtors fail to realize is that they are still going to end up paying 50%-60% (or more!) of their total debt in addition to the company’s exorbitant fees. The amount being repaid is also dragged out over 48 or 60 monthly payments until the amount is paid off. By the way, miss one payment and you void your agreement and are back on the hook for all of your debts at their original amounts. Bankruptcy on the other hand, discharges ALL of your debt in a process that typically takes about 3-4 months and does not require ANY monthly payments. Further, once you are granted your discharge, you are relieved of those debts FOREVER and never have to worry about them again.

Some may argue that the damage to their credit is worse with a bankruptcy because it is reported for 10 years. However, in all likelihood the debtor’s credit score is already very low and not likely to increase in the near future. Additionally, one missed payment and all of that effort can be erased in a heartbeat. Combine these things with the fact that bankruptcy is a relatively quick process and that you can begin rebuilding your credit almost immediately there is no reason why anyone should ever consider these debt consolidation programs over filing for bankruptcy.

If you have any additional questions about any of the information you just read, please do not hesitate to contact our office to speak with one of our experienced bankruptcy attorneys today.

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Filed Under: Bankruptcy Tagged With: bankruptcy, bankruptcy lawyer, chapter 13, chapter 7, debt relief, foreclosure

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With nearly 46 years practicing law and decades of real-world business experience, the Law Offices of Edward G. Lawson provides effective, efficient legal services to businesses throughout:

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We can accommodate clients at our Pawtucket location or we can meet you at your office to address your legal matters. Call (401) 725-1810 or (800) 511-1347 or contact us online today to schedule your initial consultation.

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Law Offices of Edward G. Lawson
260 Lonsdale Ave
Pawtucket, RI 02860
Phone: 401-725-1810
Phone: 800-511-1347
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