Category Archives: Family Court

How Does the Rhode Island Family Court Divide Property During a Divorce?

A Family Court  judge in Rhode Island determines how property is distributed in a divorce in a three step process.

First, the judge must identify which assets are marital property.  In doing so, the judge must exclude the following three categories of property:

(1)         Property held by a party prior to the marriage ;

(2)         Property or an interest in property which has been transferred to one of the parties by inheritance before, during, or after the term of the marriage ; and

(3)          Property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage.

Property that does not fall into the above property AND has been acquired during the marriage is generally considered part of the marital estate. However, property that would qualify as excluded according to the above criteria may be deemed by the court to be “gifted” to the marriage and therefore NOT excluded.  For instance, if a party inherits money but then puts it into an account with marital money, the inherited money may no longer be considered separate from the marital estate.

Second, once the trial judge makes the determination of which of the parties’ assets are marital properties, he or she must consider certain factors to determine the proportion of the marital estate each party should be awarded.  If the judge finds these factors to be of no consequence, the property that is deemed to be marital property is usually divided equally between the parties.   Among the factors the trial justice must consider are the length of the marriage, the contributions of the parties to the marital estate and the conduct of the parties during the marriage. For instance, a court may find that a party committed wrongdoing during the marriage, such as infidelity, that would justify awarding that party a smaller percentage.

Third, the court must determine a way to distribute the marital estate in the proportion the court deemed appropriate.   A judge could rule that one party may keep the family home and the other may get a retirement fund of equal value.  Other times there may not be enough liquid assets to give to one party to balance off the value of a house, for instance, and the house must be sold so that both parties may get their share.  When there are minor children involved, the sale of a marital home to distribute the assets may be deferred until the children reach adulthood if the court determines that such a deferment would be fair and in the best interests of the children.

Please remember that the above is intended to provide general guidance, not advice.  There are other factors that help determine which assets and debts are part of the marital estate and it is important to meet with an experienced attorney to learn how the laws apply to your particular situation.  Please feel free to contact us to schedule your consultation.

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What Constitutes Income for Purposes of Calculating Child Support in Rhode Island?

          The Rhode Island Supreme Court has indicated that ” [t]he guiding principle in setting a child-support award is to balance the needs of the child against the financial ability of the absent parent.” Paradiso v. Paradiso, 122 R.I. 1, 3, 404 A.2d 60, 61 (1979). ” A court may consider all relevant factors, including the financial resources and needs of the child and each of the parents * * * [and] the Family Court may ‘ consider every factor that would serve to reveal in totality the circumstances and conditions’ bearing on the welfare of the children.” Sullivan, 460 A.2d at 1250 (quoting Bellows v. Bellows, 119 R.I. 689, 693, 382 A.2d 816, 819 (1978)). This Court defines a parent’s ability to pay very broadly, to ” provide the child or children with the greatest possible support.” Lembo v. Lembo, 624 A.2d 1089, 1090 (R.I.1993); see Adam v. Adam, 624 A.2d 1093, 1097 (R.I.1993); Sullivan, 460 A.2d at 1250; Brierly, 431 A.2d at 415.

           Income “[I]ncludes, but is not limited to, income from salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or maintenance received, and all other forms of earned [or] unearned income. Specifically excluded are benefits received from means-tested public assistance programs * * *.” Family Court Administrative Order 87-2, IV.B.1.

           What does this mean?  The Family Court must consider all the income that is available to the parties, not just taxable income.  If a party has rental income, for instance, but the rental income runs at a loss for tax purposes the Family Court must consider whether or not there is net income available to the party from the rental property regardless of whether or not “paper” losses, such as depreciation, result in a net paper loss.  The definition of income is not in any way related to whether it is reportable to the IRS so non-taxable gifts and benefits must also be considered.

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