Divorce in Rhode island from A-Z- Part 3 of 5

East Providence family law lawyer, David Slepkow describes the divorce process in Rhode Island in this comprehensive serious of articles about RI divorce.  This is part 3 of a 5 part series about divorce in Rhode Island. David has 19 years of experience in Providence Family Court.

Part 1 of 5 , Part 2 of 5(Part 4-5),  Part 5/5

Should I file a verified emergency motion in a RI Divorce Cause of Action?

 Nominal, uncontested divorce attorneys

Nominal Divorce attorney in RI

If there is a serious emergency in which irreparable harm will be caused if the party has to wait for a court date, then an emergency motion may be filed. This motion should be attached to the  complaint. The  Rhode island divorce attorney will bring the emergency motion to the proper judge and ask for an ex-parte order. Ex-parte means that the other side is not present to object. The Rhode Island Family Court judge will only consider the affidavit and documentation before him. If the judge signs the emergency order, it needs to be served on your spouse by the constable along with the divorce complaint.

Imminent danger or loss

These types of emergency motion typically deal with issues concerning abuse of a child or dissipation or unreasonable spending of marital assets. Emergency motions may also relate to domestic violence, child abuse or a plethora of other potential emergencies. If there is domestic violence involved, and someone is in fear of  imminent physical harm or has been abused or threatened with abuse, they need to consult with an attorney. He or she needs to consult with a  Rhode Island restraining order lawyer concerning the benefits of filing a separate case called a Complaint Protection from Abuse! The Complaint Protection from Abuse is very different from an Emergency motion.

Which should be filed first..

The timing of whether the divorce or Complaint Protection from Abuse case is filed first or whether they are filed simultaneously could be crucial to your case! If an emergency motion is

divorce in Rhode Island, attorneys

divorce law in RI

granted and emergency orders enters then a hearing will be set approximately 20 days to determine if the order should stay in effect while the divorce case is proceeding. At that hearing, your spouse has an opportunity to contest the motion and tell his or her side of the story. At that hearing, the  Providence Family Court will determine whether the emergency relief will stay in effect while the divorce case proceeds.

Nominal or Contested Track divorce?

When a RI divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in their initial divorce filing designates the track they desire. The vast majority of divorces filed in Rhode Island are placed on the nominal divorce track. A designation on the “nominal track” does not necessarily mean that the divorce will be uncontested. It usually means that the party who filed believes that the case can be settled relatively quickly or wants the divorce to be settled relatively quickly.

Answer to RI Divorce Complaint

The defendant must file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. If the Defendant does not answer the case he is subject to being defaulted. A default is when the defendant does not answer the case on a timely basis and the Plaintiff will usually get all of the relief that he or she requests.

Nominal divorce

RI divorce

Rhode Island divorce lawyer

If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing for divorce. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the divorce is not settled by the nominal divorce date then the case will automatically be changed to the contested track

If the matter is not settled by the nominal court date and both parties want to try to resolve the remaining issues in court and believe it is possible to resolve the remaining issues, then the parties can attempt to settle the case in the hallway or conference rooms in the courthouse and put the case through as a nominal uncontested divorce on that date.

If the defendant has not filed an answer, it is dangerous for the defendant to not appear in court at the nominal court date based on representations made by the other party. I have seen numerous occasions when a spouse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the defendant is defaulted and the other spouse gets 100 percent of the assets of the marriage.

Is the divorce settled?

On the date of the nominal divorce hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve the

divorce in Rhode Island, attorneys

divorce law in RI

remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the judge that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of the next pretrial conference date.

If the parties ask the clerk to hold the matter they will usually get a substantial amount of time to negotiate the remaining issues in the hallway. Upon settling all the remaining family law issues which may include issues of property division, child support, child custody, child visitation, alimony, contempt issues, restraining order issues etc the clerk should be informed that the case is now ready nominal. At that point the clerk and judge will put you back on the list of cases ready for the nominal hearing

Certain testimony required at nominal divorce trial

Pursuant to Rhode Island General Law a  Rhode Island divorce cannot be resolved without a nominal divorce hearing. At the nominal divorce hearing certain testimony must be elicited by the Rhode island divorce attorneys in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify. If you don’t have the required witness your  divorce case could be delayed or even dismissed and you may waste your time attending  Providence Family Court.

If the case was originally placed on the contested track calendar, then the clerk did not schedule any automatic nominal court date. If the case later becomes settled then the parties can ask the clerk for permission to come on a particular date for the nominal divorce hearing. Otherwise the parties can wait for a motion date or the pretrial date to do the nominal divorce hearing.

RI divorce lawyer experienced with nominal hearings

Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the Rhode Island divorce process without Rhode Island divorce and family law lawyer.

For a detailed explanation of whether or not you must have witnesses to testify on your behalf and the residency requirement for filing a Rhode island Divorce please go to my Ezine article “”Rhode Island Divorce Law FAQS How Long Until It’s Over? http://ezinearticles.com/?Rhode-Island-Divorce-Law-FAQS-How-Long-Until-Its-Over?-Residency-Requirements-and-No-Fault-Divorce&id=489082 http://rhodeislanddivorcelawyerarticles.com/ri-top-court-lawsuit-alleging-constitutional-abuse-by-family-court-is-moot/ http://rhodeislanddivorcelawyerarticles.com/can-a-custodial-parent-waive-child-support-in-ri-family-court/

Citations

“41 percent of first marriages end in divorce. 60 percent of second marriages end in divorce. 73 percent of third marriages end in divorce.” http://www.mckinleyirvin.com/blog/divorce/32-shocking-divorce-statistics/ 

  1. Kent’s Commentaries on American Law, p. 401.
  2. ^ Jump up to:a b c Evans, Michelle L. (2009). “Wrongs Committed During a Marriage: The Child that No Area of the Law Wants to Adopt”. Wash. & Lee L. Rev. 66. Retrieved 23 July 2016.
  3. Jump up^ “Advance Report of Final Divorce Statistics, 1988” (PDF). Monthly Vital Statistice Report. 39 (12 (supplement 2)). May 21, 1991.
  4. Jump up^ Lee, Felicia R. (May 9, 1996). “Influential Study on Divorce’s Impact Is Said to Be Flawed”. The New York Times. Retrieved 23 July 2016.

 

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