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Basic Considerations When Filing for Divorce
By Brenda Coville Harrigan
Should I Stay or Should I Go?
If a couple is not getting along, frequently it is suggested that one of the parties vacate the residence and seek alternate living arrangements. If you are a joint owner of the real estate, or have children, you should always consult an attorney before moving out. Should you move out, your spouse has better odds of keeping the marital home in the division of property. If there are no children and neither party has a strong desire to remain in the house, or an ability to buyout the other's interest, the court may order the house sold. However, if children are involved, the court typically wants to keep the children in their home environment for stability purposes. Thus, the spouse who abandons the household frequently loses control not only of the marital domicile, but also of the children. It is much harder to be awarded the house once you abandon that property. The old adage that "possession is 9/10ths of the law" still applies.
Whose Fault is it Anyway?
Rhode Island is primarily a no-fault, 50/50 equitable distribution state. Unless one of the parties proves that the other spouse is guilty of a recognized at-fault ground for divorce, the court will find that irreconcilable differences exist which led to the irremediable breakdown of the marriage, and equitably distribute the property. For practical purposes, this means that each party is assigned 50% of the assets and 50% of the debt.
At-fault grounds include abandonment in excess of three years, mental and/or physical cruelty and/or adultery. If the court finds that one of the parties engaged in such behavior and that that behavior was the cause of the breakdown of the marriage, it may vary from the typical 50/50 distribution, and award the non-offending spouse somewhere between 55 and 65 percent of the assets. Only in those few rare and extreme cases is an award approximating 70/30 percent ever made by the court.
Although a party may wish to take their spouse "to the cleaners", Rhode Island law generally prohibits an inequitable distribution of assets.
Alimony
Alimony is considered by the court as a rehabilitative tool awarded to an unemployed or low-income spouse to allow that spouse to become self-supporting. Once your right to receive alimony from your spouse has been waived, that waiver is permanent. A party cannot come back before the court at a later date to ask for spousal support from his or her spouse. In the few instances where alimony is awarded, there is typically a significant difference in income between the parties, or one party has been out of the work force for a lengthy period of time, for example a homemaker.
In that instance, the court can award cash payment to be received on a weekly or monthly basis to supplement that party's household income while that spouse takes courses, attends college or is given the time and opportunity to do same, after which point the alimony will terminate. Alimony is also taxable to the receiving spouse as ordinary income, while the paying spouse receives a tax deduction.
Child Support
Child support is based on a guideline formula utilizing the gross income of both parties. Various deductions can be made, such as health insurance or prior support orders. Daycare expenses are incorporated as well. Typically, child support is garnished and paid through the State of Rhode Island. The State provides an independent bookkeeping/accounting of support payments to avoid disputes.
Brenda is available to answer your questions by e-mail at bharrigan@gunninglafazia.com or call her direct line at (401) 521-2629. All communications will remain confidential. Brenda will also provide you with a free initial consultation either by phone or in person.
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