Carl P. DeLuca, Attorney at Law, LLC

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Contested Divorce - Warwick Divorce Lawyer

Most divorces in Rhode Island are uncontested. Even if they are expected to be contested at the beginning, a good divorce attorney can work to resolve the issues before trial in most instances. There are still many divorces that go to trial as contested divorces in Rhode Island, but they are the minority of cases.  When the issues cannot be resolved by agreement of both parties a judge must decide the issues for them. There are many reasons that divorces are contested and require a trial. We discuss some of them below.

“Our family felt really comfortable with the guidance we received from Carl. It was nice to feel confident in a difficult situation.” – Randy V. 
Divorce Attorney, Warwick, RI 02886

Issues Re Division of Marital Assets in Contested Divorces

Usually, marital assets are divided equally. However, there are some instances when one party may receive a greater percentage than the other. But if a couple does not have much in the way of assets, it’s usually not worth fighting to get a slightly larger share of them as the attorney’s fees can grow so large that they will offset any gains made by getting a higher percentage of the marital property in a trial. But, sometimes the assets are large enough to fight over and sometimes an asset cannot be divided and both parties want to keep it for sentimental reasons, or even spite.  A good divorce attorney will help their client put things into perspective and come to a reasonable resolution or prepare a trial strategy that will result in a property division that is favorable to their client.

1. Behavior and Contributions to the Marital Estate

In case of fault, for instance when one party commits adultery or is physically abusive, more of the marital assets may be assigned to one spouse than the other. If a couple owns significant assets some spouses may decide that it is worth it to have a contested divorce trial because even a 10% increase in the assets allocated to them would amount to a lot of money. Therefore, some cases are contested to prove wrongdoing so that the aggrieved spouse can get a larger share of the marital assets.  Those can be very ugly trials.

The court can also consider things such as the length of the marriage or the respective contributions to the marriage of each spouse in determining equitable distribution. The length of the marriage is generally not in dispute, though it can be in the case of common law marriage, but the respective contributions of the spouses is sometimes in contention. Usually, the court will not stray much from the 50/50 presumed distribution because of “contribution” disparities. It is presumed that the parties agreed upon their respective roles in the marriage and the courts are not inclined to second guess the “partnership” agreement and the relative value of each spouse’s contributions. An experienced divorce attorney can help their client navigate through these issues.

Divorce Attorney or Mediator?

The family court has mediators they provide to divorcing couples and they provide them without charge! So, don’t go to a mediator you have to pay before you file for divorce when you have a better option. Outside mediators are well intentioned and may be very skilled at resolving conflict, but they need to know what a family court judge can and cannot order and they frequently don’t. The mediators who work for family court certainly do. Learn more about divorce mediation here

2. Dispute as to Whether an Asset is Marital

On occasion, there is a dispute as to whether a property is marital and even subject to division by the court. Why is that? Because Rhode Island divorce law does exclude certain categories of property from equitable distribution in a divorce.

Under Rhode Island law, marital property is property that is acquired during a marriage or as a direct result of the labor and investments of the parties during the marriage. Property determined to be marital property is subject to equitable division. Equitable division does not necessarily mean marital property is divided equally. But it is divided in manner that results in a fair or equitable result for each spouse and that is usually an equal division.

Property acquired by one spouse prior to the marriage or property by gift or inheritance, is not subject to equal division. A dispute can occur when a gift is presumed by one party to be solely theirs and the other party presumed it to be a gift to the marriage. That is a question of fact that the parties may wish to litigate if the asset is significant enough or if it cannot be divided and both parties want it.

Property that was acquired by one party before the marriage is considered not to be marital unless it is considered to be gifted to the marriage or if marital funds are used to maintain the property even though the property belonged to one spouse.  In those cases, whether the property belongs to the marriage or the individual may be in contention. For instance. if someone owns a yacht prior to their marriage but uses marital assets to maintain it and uses it for family outings, it may be considered marital property despite being acquired before the marriage.

3. Dispute Regarding Valuation of Assets

Another area of contention and a cause for contested divorce trials is a dispute over the value of an asset. It is common for experts to disagree on the value of some assets, such as real estate, jewelry, etc, and no less common for angry spouses.  When that occurs, a full-blown trial on the value of the assets may occur, complete with testimony from multiple experts. These can be very long and expensive trials and requires the assistance of an experienced divorce attorney.

Issues Involving the Children

One of the most common reasons for a contested divorce trial is a dispute over the children, whether it is about support or custody, placement, and visitation.  Child support may be litigated, but in the end, it’s determined by formula, so unless there is an unusual placement arrangement or a party’s income is variable or difficult to determine, very few trials actually occur over child support.

However, many trials occur over placement and visitation when one parent believes the other is not fit. Those are usually the most contested trials as the emotions and stakes are high.  These are often the most challenging trials for even the most experienced divorce attorney.

Another reason for a contested divorce trial is when one spouse believes they are entitled to alimony and the other does not agree. Parents are pretty much resigned to and understand why they must pay child support, but most ex-spouses do not want to pay alimony.  In Rhode Island, alimony is generally remedial. That means that it is only intended to get the other spouse back on their feet, perhaps because they were out of the work force because they were taking care of the children.

Still, if the receiving spouse has the need and the paying spouse has the income, it can involve the payment of large sums of money, even if only for a limited time. If the receiving spouse is disabled, the payments may continue indefinitely. Naturally, with stakes so high for both the spouse in need and the spouse who may have to pay, the issue of alimony can be highly contentious and result in a contested divorce.

Contested Divorce Cases Require an Experienced Divorce Attorney

A contested divorce is much more complicated than an uncontested case and it’s important to hire an experienced Rhode Island Divorce Attorney to best represent your interests. In addition to all the pre-trial discovery and investigation that needs to be done, the trial itself requires extensive experience and specific trial skills that not all lawyers have.

Examining and cross-examining witnesses requires not only a thorough knowledge of your case but of the intricacies of what it takes to elicit the desired responses in a legally sufficient manner and what is and is not admissible. A divorce attorney in a contested divorce may have to hire an expert to assist him or her regarding asset valuation, income earning capacity, etc, and then properly present the expert’s evidence at trial.

Don’t leave your contested divorce trial in the hands of an inexperienced lawyer. Carl P. DeLuca, Esq has over 35 years’ experience litigating and winning contested divorces.

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