David Slepkow

When can a child decide which parent to live with?

August 29, 2015 By David Slepkow

Is there a particular age when a child in Rhode Island can decide which parent the minor child wants to reside with, in a RI child custody, post divorce or divorce? A Rhode Island child custody attorney discusses the important issue of when a child’s preference is important in a child custody case in RI.

child-decide-parent — Can a child decide which parent to live with?

Child preference in RI child custody

Can Children Choose Which Parent They Want to Live?
When Can a Child Choose Which Parent to Live with in Rhode Island?
At what age can a child decide which parent to live with?

Can a child in Rhode Island decide where they want to live?

The legal standard for child custody determinations is the best interest of the child.
The court can consider, “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”
The older a child is the more influence the child will have in the determination.

There is no set age under Rhode Island family laws when a minor child can decide to live with their mother or father in a Rhode Island child custody case. In fact, theoretically, the child is not allowed to make that decision.

Older children have a very significant impact on child custody determinations by a Providence RI Family Court Judge or General Magistrate. In the seminal RI child custody case of Pettinato v. Pettinato, The RI Supreme Court lists the ‘preference of the child’ as an important factor that the RI Family Court should consider in making a child custody determination. “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” 82 A.2d 909 (1990) Gregory J. PETTINATO v. Susanne L. PETTINATO

An older child’s wishes are often respected and followed by a RI Family Court justice. In making a child custody determination, the Providence Court Judge or Magistrate decides the case based on the “best interest of the child.”

Preference of child only one factor in physical placement determination

preference of children — Rhode Island child custody attorney

The preference of the child is only one of the factors that a Providence Family Court Judge may consider in determining the best interest of the child. The Factors a Family Court Judge should use in making a “best interest of the child” determination are set forth in the seminal Rhode Island case of Pettinato v Pettinato, 589 A.2d 909 (R.I. 1990) Please see below for all factors that the Rhode Island Family Court utilizes to determine Child Custody. see Child Custody Law in RI

(If you are in need of a child custody attorney in Rhode Island, contact East Providence child custody lawyer, David Slepkow.)

Older children have greater input into where they will live

If an older child such as a 15, 16 or 17 year-old has a preference and that opinion is expressed to the Judge, Court Investigator or Guardian ad Litem than the judge will usually respect the child’s desire. Of course, there may be countervailing factors which may convince the judge not to respect an older child’s parental preference.

These countervailing factors may include:

Drug and alcohol abuse by the minor child
Mental health problems of the child
Lack of a good relationship with the parent the child wants to live with
Poor judgment or decision making of the child
The stability of the child’s home environment and potential instability of the other parent
Lack of maturity or judgment of the child
How the child is adjusted to his or her home, school or community.

Exceptions to older children’s influence

There are some exceptions in Newport Family Court or RI family Court to an older child’s decision being the decisive factor. In some cases, despite the child’s advanced age, the child does not know what is in his or her best interest. In some cases the child abuses drugs and alcohol, does poorly in school, misbehaves, has a criminal record or has mental health issues.

Also if the child does not have a good reason for his decision then the judge can deny the child’s request. If the other parent is not a fit and proper person to have placement of the child, then the Judge can deny the request. The judge can deny a child’s request if the parent the child would like to reside with has a drug or alcohol problem, severe mental health condition or a serious criminal record. In some cases, RI Family Court Judges are hesitant to change placement if the child is very immature for her age and has behavioral issues and the child is merely rebelling against the imposition of rules and structure.

Do children have influence over visitation terms in Rhode Island

Children also may be given influence in Child Visitation cases in RI. Children may play a role in the determination of whether visitation should be overnight and the schedule and frequency of the visits. Children may play a role in whether visitation should be supervised or unsupervised and the length of duration of visitation. Children also may be given influence when the parent with physical custody files a motion to relocate out of state.

Practical Tip: If you are aware that your children support your position regarding Visitation, Custody, Placement or Relocation out of state then have your children interviewed by the Judge, RI Family Services or a Guardian ad Litem.

Can younger children decide where they want to live?

Children ages 11, 12, 13 & 14 may also be given significant influence over Rhode Island Child Custody, Visitation and Relocation cases.

Do all judges deal with children in the same manner?

Judges in Rhode Island Family Court have different philosophies on how they deal with children. Some judges will not interview children. They will have the Guardian ad litem interview the children. The Guardian ad Litem then will issue a report to the RI Family Court Judge or Magistrate handling the matter.

In Rhode Island (RI), A guardian ad litem is an individual who represents the hypothetical best interest of the minor child in a child custody, visitation or other type of Family Court case. Guardians are frequently used in in contentious custody cases when the parties can afford the additional expense. The judge could make an appointment or the parties can agree to a guardian being appointed.

Guardians do not make final decision

A guardian does not make the final decision as to which parent shall get physical placement or legal custody of the child. The judge makes the final decision regarding custody, visitation and physical placement / possession after hearing testimony at trial or hearing. The guardian drafts a report to submit to the Court with his or her findings and recommendations. see The Role of the Guardian Ad Litem in Family Court in Rhode Island http://www.hg.org/article.asp?id=18219 )

Judge Interviews of children in chambers

There are some family law judges who will bring the child into chambers for an interview. The Judge will usually bring the court reporter to transcribe the proceedings. Some judges will allow the RI divorce attorneys or Rhode Island child custody lawyers to question the child in chambers in front of the judge.

RI Family Court Practical Tip:

Don’t coach your children. This is unfair to the child and puts unnecessary stress and pressure on the child. Also, the Child will usually tell the Judge or Family services about the coaching. If the Judge believes that you have engaged in coaching, then there may be severe sanctions. The Sanctions may include the judge denying your request for placement, sole custody or relocation.

A child’s preference is not decisive, it may be given weight

The older a child is, the more weight / influence the judge will give to the child’s preferences regarding custody, placement, visitation and relocation out of state. Younger children usually have a greater influence on proving facts rather than making decisions. The child may tell the investigator or Judge that their parent abuses them or if they are afraid of their parent. The child may tell the investigator that the parent makes negative or disparaging comments about a parent in front of the child. The child may make allegations regarding parental alienation.

Children typically do not get to make the decision concerning legal custody. Legal custody pertains to who gets to make decisions concerning religion, education, social development, activities and medical decisions. Legal Custody will either be Sole Custody to one parent or Joint Custody to both parents. Child Custody matters involving preference of the child may play a role in Rhode Island Divorce, Paternity, Miscellaneous Petitions for Custody, DCYF, Motions to modify Custody or placement and visitation disputes. Children have no real influence on Child Support cases.

RI Child Custody Factors:

“1. The wishes of the child’s parent or parents regarding the child’s custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to the child’s home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child’s home environment.
7. The moral fitness of the child’s parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.” Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990).”

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Can the Court take into account a parent on public assistance as a factor in determining custody?

“In regulating the custody and determining the best interests of children, the fact that a parent is receiving public assistance shall not be a factor in awarding custody.” § 15-5-16. Alimony and counsel fees – Custody of children.

“Consequently the rendering of assistance to parents with dependent children is ordained by the public policy of the United States and furthered by the public policy of the State of Rhode Island. Neither the policy of the federal government nor that of the State of Rhode Island would authorize or encourage in any way the penalizing of an otherwise proper parent merely because she is receiving assistance from the AFDC program. We are constrained to hold that the determination by the general master that receipt of such assistance would authorize a change of custody on public-policy grounds constitutes a fundamental error of law.” Sammataro v. Sammataro, 620 A.2d 1253 (1993)Marianne SAMMATARO v. Robert SAMMATARO.

What is the standard of review of a RI child custody determination?

“Our review of this issue is limited to considering whether the general master abused his discretion in granting sole custody of Stephanie to plaintiff. Pettinato v. Pettinato, 582 A.2d 909, 914 (R.I. 1990)” Mattera v. Mattera, 669 A.2d 538 (1996) Jo-Ann MATTERA v. Steven A. MATTERA et al

Resources and Statistics

“About half (50.6 percent) of all custodial parents had either legal or informal child support agreements. • Custodial parents receiving the full amount of child support due declined between 2007 and 2009, from 46.8 percent to 41.2 percent. • Of the $35.1 billion in child support due in 2009, 61.0 percent was reported as received, averaging $3,630 per custodial parent who was due support. • Child support represented 62.6 percent of the average income for custodial parents below poverty who received full support.” Custodial Mothers and Fathers and Their Child Support: 2009 Consumer Income, Issued December 2011 P60-240 Current Population Reports By Timothy S. Grall http://www.census.gov/prod/2011pubs/p60-240.pdf

Rhode Island divorce attorney, David Slepkow represents clients in the following types of RI family law matters: child support, visitation, paternity and child custody. David has dozens of 5 star reviews. David is rated a “superb” RI lawyer by AVVO and was voted a top 3 attorney in Rhode Island by the Providence Journal’s readers.

Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers / attorneys in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.

Navigating a High Conflict Divorce in RI

August 22, 2015 By David Slepkow

Every divorce in RI is stressful and and often brings out the worst out in most of us. However, a high conflict divorce is far more nerve-racking when couples engage in hostile or aggressive confrontation instead of using legal negotiation tools to resolve marital issues including child custody, child support, spousal support and the division of marital assets.

High conflict divorce in RI

High conflict divorces in Rhode Island often leaves one or both parties unable to emotionally recover and get back to living a fulfilling and healthy life once the dissolution of marriage is complete. If you are involved in a divorce war in Rhode Island Family court, you should speak with a Rhode Island divorce lawyer. A RI divorce attorney can help you protect your legal rights in a divorce in RI.

Many high-conflict Rhode Island divorces involve serious issues that must be resolved before the end of the marriage can be finalized. Common problems that may cause conflict include:

An intense emotional investment between the couple
Difficult family dynamics
Questionable legal ambiguities
Tangled financial problems
Dirty tricks and antagonistic actions performed by one or more family members

These types of divorces often involve unremitting, ongoing hostility between the couple along with extended child custody battles and drawn out court actions. In some situations, the RI Family Court judge will issue restraining orders as a way to keep the peace between the divorcing couple until the marriage can be dissolved. Divorcing couples will argue about hostile dependency where one spouse claims they have sacrificed their career to marry the other or raise their children.

What is hostile dependency?

“Hostile dependence is a relationship in which one is dependent upon another person but resents it. It can be summed up well in this statement: I hate you because I need you so much. Hostile dependency is an unhealthy and immature dependency upon someone else. For adults, one depends upon someone else to do things for them that they should be capable of doing themselves. This could involve being supported financially, having tasks done for them that they should do themselves, and being protected emotionally and psychologically like a child should be.” https://www.eliterehabplacement.com/recovery/hostile-dependence-hating-to-love/

When Children Are Involved in a high conflict divorce

In some divorces, one spouse lacks the ability to talk to their children and provide care on a personal level, which often leads to unnecessary high conflicts.

Rhode Island Restraining order attorney — Automatic court orders in Rhode Island divorce

Emotions & verbal confrontations often run rapid during divorce

Differing parenting styles between the couple is a major factor that leads to the marriage’s dissolution. One parent may attempt to push their rules over the wishes of the other parent, which tends to escalate animosity between family members. When serious conflicts escalate between parents concerning issues about their children, it is best to turn the problems over to a reputable Rhode Island divorce attorney who specializes in high conflict divorces in Providence Family Court.

Preventing Confrontation in Providence Family Court

In many divorce cases involving high conflicts, one spouse is unable to let go of a strong attachment to the other spouse. Conflict is often created as an interaction with a partner who is leaving the marriage. Legal consultation and family counseling are absolutely necessary to ensure that both parties can resolve their issues and dissolve the marriage.

There are simple actions that can minimize the amount of conflict within the family’s dynamics during the divorce. These actions include:

Accepting responsibility to live your own life,
• Making decisions that benefit everyone in the family,
• Avoiding pointing a finger of blame, shame or indignity at the other,
• Developing and maintaining healthy boundaries as a parent and ex-spouse,
• Honoring every financial agreement you made with your ex.

Many individuals make a major mistake when divorcing in Providence Family Court by failing to take steps to protect their rights. If you and your spouse are considering a divorce, but there is high conflict in the family dynamics, it is essential to seek legal advice. It is essential to pick a RI divorce attorney that has experience and skills in preventing confrontation while remaining invested in helping you dissolve your marriage.

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Rhode Island divorce attorneys

“In the spring of 2010, an estimated 13.7 million parents had custody of 22.0 million children under 21 years of age while the other parent lived somewhere else.3 Although the population of the United States increased by 17.1 percent since 1994, the number of custodial parents was not statistically different from 1994 (Table 1).4 The 22.0 million children living with their custodial parent represented over one-quarter (26.2 percent) of all 83.8 million children under 21 years old living in families.5 Among White children in families, 22.4 percent lived with their custodial parents.” Custodial Mothers and Fathers and Their Child Support: 2009 Consumer Income http://www.census.gov/prod/2011pubs/p60-240.pdf

Haphazard life insurance trusts common in divorce | How to do properly

June 6, 2015 By David Slepkow

After months of arguing, motions and tedious discovery in a RI divorce, someone remembers the life insurance policies, at the last minute. Everyone is worn down. Everyone wants to get the ghastly divorce over, as soon as possible. Life insurance obligations for the benefit of the children are typically glossed over and often treated haphazardly in a RI divorce. Litigants do not want to spend the time to properly consider each other’s mortality. In a divorce in RI, spouses often do not properly insure that the financial future of the children is accounted for, in the event of the untimely death of either parent.

Life insurance and divorce — Life Insurance and divorce in RI

Life insurance obligations should be a critical part of divorce settlement negotiations!

Often someone remembers life insurance, at the last moment. During settlement negotiations. Someone suggests: ‘why don’t you just agree that if you pass away then your life insurance will be held in trust by the surviving spouse for the benefit of your children.’ Everyone agrees that this will be an irrevocable obligation. Everyone including the Rhode Island divorce attorneys, husband and wife agree to this arrangement. The litigants do not engage in meaningful thought or reasoned discourse. After all, there is a “sense of relief” that this RI divorce brouhaha has concluded.

Slipshod divorce “trust” agreements

The above mentioned slipshod and careless language is set forth in the property settlement agreement or in the final judgment of divorce in Rhode Island. Is this a real trust? It may be a trust but it may be a hit and miss proposition as far as the trust accomplishing what it was intended for. I have raised objections to this type of disorganized trust language dozens of times in Providence Family Court divorce. Despite my objections, nearly every time I am overruled by my client or someone who wants it all over with. They tell me to figuratively ‘stand down’ and not create a REAL or ORGANIZED trust and get this over with.

Do not wait until the end of a divorce to consider life insurance

The parties should consider life insurance and its effect on the children’s future towards the beginning or middle of the divorce case. It should not be treated as a last minute throw-in. Life Insurance and divorce has become that ‘Just one more thing’, remembered at the end. It is not being considered as an important part of the settlement negotiations. Litigants may spend hours fighting over the couch, flat screen tv and dining room table but life insurance is agreed to at the last few minutes. Life insurance is typically decided in a last minute exchange between the parties or their RI Family Court Lawyers. This makes no sense does it?

Here are 7 potential issues that could arise by such a haphazard life insurance trust:

The purported trust does not set forth when, if ever, the children are entitled to the remaining trust money. Is the mother obligated to give any remaining money to the children upon a child’s 18th birthday? The 23^rd birthday? or never?
What if the owner of the life Insurance has another child and does not obtain life insurance for that child? Isn’t that child also entitled to be supported after the untimely death of their parent? What can the Trustee (mother or father), use the funds for? Is it for the child’s college education? Is it to replace child support the deceased parent would have paid if he or she lived? If it is to replace child support, can it be used to pay for rent or mortgage payments for the former marital domicile?
Can trust funds be used to fund a new house partially owned by the spouse’s paramour or a new husband? How about vacations with the child? Can the trustee use the funds for things that benefit the trustee parent but only tangentially benefit the minor child or children? For example, the trustee uses the funds as a down payment on a new house or pool that the child will be using and enjoying?
When does the obligation to name the trustee end when the children are 18? 21? 23? or 25?
What happens if the owner and trustee parent die together or in short succession? Who is the secondary trustee?
If there is more than 1 child, is 1/2 of the trust funds for 1 child and the other half for the other child or does the trustee mother have the right to make the decision on how the funds are delegated? What happens when a child is an adult and wants his share of the money and the other child is a minor with important needs such as critical medical expenses?
Is the trust money going to be set in a separate account with the trustee in a fiduciary capacity? Can the trust funds be mixed into the checking account of the trustee?
Should the trustee be a different person than the parent with physical custody of the child? A neutral person can insure that the trust objectives are satisfied for the best interest of the trust beneficiaries.

What is the Solution?

The proper way to do a trust in a divorce is to write up a trust and have the person who owns the life insurance policy name the trust as beneficiary of their life insurance. The trust will spell out the obligations of the trustee and when the trust beneficiaries will obtain the trust corpus and will deal with all of the issues set forth above in a meaningful and clear manner.

Another solution

A person could draft a will leaving everything to a “testamentary trust” naming the children as beneficiary. “A testamentary trust (sometimes referred to as a will trust or trust under will) is a trust which arises upon the death of the testator, and which is specified in his or her will.” https://en.wikipedia.org/wiki/Testamentary_trust The owner of the life insurance policy would then name their estate as beneficiary of the life insurance. This could raise issues because a person can change their will later. A person could also change their will if he or she has another child.

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To Prenup or Not to Prenup in RI? That is the question…

March 28, 2015 By David Slepkow

While the prospect of marriage in Rhode Island is often a fulfillment of a lifetime dream for most couples, it is unfortunate to note that the majority of the marriages end up in a divorce. This is where a prenuptial agreement, otherwise known as an ante-nuptial agreement or premarital agreement comes in handy. The agreement is entered into by two parties prior to their getting into a legal relationship, including a marriage. It serves to lay down the terms of separation in the event that the two parties decide to part ways and break their marriage.

Rhode Island prenuptial

Such terms of separation will often revolve around the division of property, spousal support and compensation. It may also consist of such other terms that relate to sharing of assets under peculiar circumstances such as adultery. A prenup essentially allows the separating or divorcing couple to agree to proceed with the process expeditiously as the terms are already agreed upon.

Key Components of Prenuptial Agreements

A prenuptial agreement may appear extremely confusing for couples who are contemplating on getting married in Rhode Island, especially because it entails discussing the term of a RI divorce even before tying the knot. However, making the agreement does not necessarily mean that you are going to get divorced; it is simply a legal and practical step that is designed to smooth out the procedure of divorce in RI, in the event that it becomes inevitable.

What are the benefits of signing a prenuptial agreement?

A prenuptial agreement will decrease the legal wrangling involved in settling the terms of Rhode Island divorce. It essentially allows efficient settlement of such matters as asset distribution and financial support, while taking into consideration the best interest of both parties.
Contrary to the popular misconception, a prenuptial agreement in Rhode Island does not demonstrate the lack of trust or the presence of skepticism between a couple, and it will not lead to the failure of your marriage. Instead, it will serve to protect your financial well being by avoiding a situation where the court would decide on how your matrimonial assets are to be divided after a divorce. While you may acquire a substantial award from a court’s ruling, you may also end up completely broke.
The agreement is especially beneficial in the event that you are coming into the marriage with more money than your partner. However, even when you have the least amount of money in your relationship, this document can still protect you.
A prenuptial agreement will serve as a contingency plan. Just as you make plans for such situations as loss of employment or unexpected death, you should also make prior arrangements in anticipation of the possible failure of your marriage. While a marriage is entered with the hope that it will last a lifetime, it is important to be realistic and prepare for the unexpected.
It is not uncommon to find that majority of the couples who create a prenuptial agreement have immense respect for each other. This is because it allows each party to express their deepest concerns, goals and objectives, without humiliation or fear of having their feelings attacked.
Signing a prenup will also allow you to understand your spouse’s financial circumstances. This is because it will compel you to discuss your individual finances with your spouse; each party must disclose their entire assets and debts. This is extremely beneficial especially because you may experience financial difficulties at some point, and since most couples will tend to avoid discussing the situation, a prenup will not give you a choice. Besides, learning everything about your spouse’s finances may actually bring you close to them as you approach your wedding.

“In Rhode Island, the enforceability of a premarital agreement is governed by the Uniform Premarital Agreement Act as codified in § 15-17-6. Section 15-17-6 states:

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

“(1) That party did not execute the agreement voluntarily; and

“(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

“(b) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.

“(c) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

“(d) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” (Emphases added.)

We have noted that when the Legislature enacted the provisions of § 15-17-6, it “clearly evidenced the intent to preserve the validity of such agreements [and] * * * [maintain] the integrity of such agreements [.]” Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I.1994). “To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable-that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence.” Rubino v. Rubino, 765 A.2d 1222, 1225 (R.I.2001).” Supreme Court of Rhode Island. Debra L. MARSOCCI v. David A. MARSOCCI, No. 2005-149-A. Decided: December 15, 2006 Present: WILLIAMS, C.J., and GOLDBERG, SUTTELL, and ROBINSON, JJ. Alfred Factor, Esq., for Plaintiff. Donald R. Lembo, Esq., North Providence, for Defendant.

Proper form is crucial

It is however essential that you ensure that your prenuptial agreement is in proper form, including being in a written format that can be reproduced. The agreement must be entirely voluntary; both parties must consent to it. Moreover, ensure that it is supported by a fair and complete disclosure of the essential facts at the time of execution. You should also understand that in some special circumstances, the prenuptial agreement’s terms may become unenforceable in accordance with the pre-agreed terms. This is especially true with matters relating to children, custody and guardianship, since such issues must be settled in the best interest of the children.

Toughest state in Country to invalidate a Prenuptial!

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RI prenuptial agreement attorney

David Slepkow is a RI prenuptial agreement lawyer. David is also a top RI divorce lawyer He has authored dozens of prenuptial agreements in Rhode Island. David has 22 years experience in Rhode Island Family Court. Dvaid has a superb rating with avvo. He was voted a best 3 lawyer in Rhode Island by the Providence Journal Reader’s poll.

RI Prenuptial Agreement lawyer: Important Drafting Considerations

March 28, 2015 By David Slepkow

A prenuptial agreement in Rhode Island should be drafted by a RI divorce attorney or a Rhode Island prenuptial agreement lawyer. In modern times, prenuptial agreements are typically referred to as “premarital agreements.”

premarital agreement RI — RI premarital agreement attorney

At the end of the day, whether you call these types of agreements ante-nuptial agreements, prenuptial agreements or premarital agreements, they are all contracts. Prenuptial agreements usually make divorces in RI much simpler to resolve.

If you are seeking a prenup, contact Rhode Island prenuptial agreement lawyer, David Slepkow

The basics of a premarital agreement in RI:

Required to be written
both parties must sign

Pursuant to RI law what can a party agree to in a prenuptial?

(1) “The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4) The modification or elimination of spousal support;

(5) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(6) The ownership rights in and disposition of the death benefit from a life insurance policy;

(7) The choice of law governing the construction of the agreement; and

(8) Any other matter, including their personal rights and obligations, which are not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.” § 15-17-3. Content

Can the enforceability of a prenuptial agreement be challenged in RI?

It is nearly impossible to nullify a prenuptial in Rhode Island. A party seeking to nullify a prenup in Providence Family Court must establish ALL three elements:

“That party did not execute the agreement voluntarily; and
The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” 15-17-6

The Providence County Family Court would determine whether a premarital agreement could be enforced. The spouse seeking to invalidate the prenuptial would have the burden of proof to establish all three elements by clear and convincing evidence.”The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.” 15-17-6 (b)

“We have noted that when the Legislature enacted the provisions of § 15-17-6, it “clearly evidenced the intent to preserve the validity of such agreements [and] * * * [maintain] the integrity of such agreements[.]” Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I.1994). “To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence.” Rubino v. Rubino, 765 A.2d 1222, 1225 (R.I. 2001).” Marsocci v. Marsocci, 911 A.2d 690 (R.I. 2006)

Can parties modify or amend a RI prenuptial?

“After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. (b) The amended agreement or the revocation is enforceable without consideration.” § 15-17-5. Amendment – Revocation.

If you are looking to amend a premarital agreement, contact a RI prenuptial agreement lawyer.

Under what circumstances should a prenuptial agreement be considered in Rhode Island?

Premarital agreements are not right for every couple in Rhode Island and Providence Plantations! Prenuptial agreements are most prevalent in second, third or fourth marriages. They are especially prevalent in first or second marriages when one or both of the parties have children of a prior marriage or relationship. They are also prevalent in Rhode Island when a future spouse has a child or children from a prior relationship. (Rhode Island May be the toughest state in the country to invalidate or challenge a prenuptial / premarital agreement. The RI supreme Court sitting in Providence has made ante-nuptial agreements very difficult to set aside! (perhaps nearly impossible) The seminal case concerning the enforce-ability of prenups in RI is Marsocci v Marsocci.

Marsocci stands for the proposition that, pursuant to Rhode Island General Law § 15-17-6, in order for a prenuptial agreement to be unenforceable, it must be both involuntary and unconscionable. (Unconscionable means totally and completely unfair) see also: Toughest state to invalidate a premarital agreement

When should a prenuptial be considered?

A prospective spouse had substantial premarital assets that he or she wants to protect
protecting the rights of the spouses’ children to obtain the assets
Protecting a premarital business
Limiting or protecting against exposure to an alimony award

Is there any difference between a prenuptial and a premarital agreement in Rhode Island?

No. Premarital agreement, ante-nuptial agreements and prenuptial agreements are all different terms for the same document and are used interchangeably.

Preserving assets for children in a RI Prenup

RI prenuptial attorneys — Rhode Island prenuptial

When a person has a child from a previous relationship and is considering a marriage, he often wants to insure his child will inherit hard earned assets. A person wants to insure their assets will go to their children rather than their new spouse or the new spouses’ children. This is perhaps the best rationale for a prenup in RI.

Many parents fear that their hard-earned assets that were acquired before the marriage will go to their new spouse or her children upon divorce or death rather than their own child.

Can child custody, visitation and child support be agreed to in a RI prenuptial?

No. a premarital agreement in RI cannot contractually bound the parties related to the care, custody, control and support of the children of the marriage. The RI Family Court has jurisdiction to determine custody, visitation and support of children. The parties to an ante-nuptial in Rhode Island cannot agree to child support provisions that would “adversely” affect the rights of a child. “The right of a child to support may not be adversely affected by a premarital agreement.” § 15-17-3. Content This means that a Prenup in RI could include provisions that the parties contribute to college or pay child support above the minimum guidelines since these do not adversely affect the rights of the child.

When does a prenuptial in RI become enforceable?

“A premarital agreement becomes effective upon marriage. ” § 15-17-4. Effective upon marriage.

Estate planning can be a crucial element of a good prenuptial agreement in Rhode Island!

Without protection through estate planning, will, trust or a prenuptial agreement, a substantial portion of your separate assets may go to your new spouse upon divorce or upon your death. Estate planning can also be a very important element in premarital agreements. I strongly advise that you retain a Rhode Island divorce and family law attorney to draft or represent you concerning the execution of the premarital agreement.

Premarital agreements are often utilized when either husband or wife has acquired significant premarital “separate” property. In many cases, one of the spouses will have a more substantial estate and assets than the other spouse.

Be careful! The suggestion of a prenuptial can be a very emotionally charged issue!

Tread carefully when suggesting a premarital agreement with your future spouse especially in a first marriage! Often, your future wife will be very upset with the suggestion that they should sign a premarital agreement. This is a very delicate subject. It could potentially imperil the entire relationship. Some people feel that premarital agreements run contrary to the marriage covenant. Others are against a prenuptial because they believe that it is planning for divorce when marriage is ideally “forever.”

Negotiate the prenuptial well in advance of the wedding!

It is a very bad idea to suggest a prenuptial at the last minute. You should propose the prenuptial well in advance of the wedding. The last thing you want to do is negotiate a complex contract a week or two before the wedding. It can be unseemly to be contacting a RI divorce lawyer or Providence family Court attorney right before the wedding and can put unfair pressure on your spouse.

What are standard provisions put into a simple prenuptial agreement?

The most standard prenuptial agreements simply protect a person’s separate premarital property. In many instances the parties waive all right title and interest to the premarital property of the other party. The most simple, prenuptial agreements simply state that all property that the parties owned prior to the marriage would be their separate property free and clear of all claims of the other party. Prenuptial agreements can essentially state any provisions that the parties desire and the law allows.

Are both the prospective wife and husband required to get an attorney / lawyer?

No. The parties are not required to have an attorney / lawyer to review the prenuptial in Rhode Island (RI). Prenuptial agreements in Rhode Island are still valid and enforceable even if one of the parties had an attorney draft the agreement and the other party did not have a lawyer review the agreement.

Unconscionable Prenuptial may be Enforced in RI Unless Involuntary & No Disclosure

What are the most important elements of a good ante-nuptial agreement?

The most important facet of a good premarital agreement is clarity. The second must important facet of a prenuptial is complete and full disclosure.

Both parties must disclose all assets and liabilities.

If the parties have not disclosed material and substantial assets and liabilities, the prenuptial may not be enforceable. Husband and wife should attach a financial statement as an exhibit to the prenuptial. If the parties do not properly disclose their assets and liabilities, then it is questionable whether the parties agreed to anything because they do not know what they were agreeing to.

Retirement Accounts, 401k, 403(b), pensions

You may consider a provision concerning 401k, 403(b), Stock Options, Pensions, Retirement Accounts as well as the increase in value, additions and or re-investments of such retirement accounts after the marriage. In order to waive marital rights to certain retirement accounts you may need a provision under IRS guidelines agreeing that your spouse will sign appropriate forms to waive or relinquish spousal benefits.

Waiver of Alimony

Some premarital agreements in RI require one or both spouses to waive their rights to alimony or temporary alimony. This can be a crucial portion of a prenuptial agreement. This is often also the most contentious area of negotiations.

Real estate

Some premarital agreements address issues concerning Real Estate especially separate real estate of the parties. You want to discuss with your Rhode Island family Law lawyer whether or not your spouse will be agreeing to waive their right to elect against the will of the other upon death and waive the statutory life estate. This is very important in Rhode Island. You may want to consider putting the real estate in trust. This is all very complicated and should not be done without an attorney

Jointly Held – Marital property

You need to consider whether you want the agreement to include how marital property will be divided upon divorce. Some people agree that all marital property will be divided 50/50 upon divorce or separation. Other agreements are silent on this issue.

Choice of Law:

The parties should state under which law the prenuptial agreement should be interpreted. If the parties reside in Rhode Island, then they should have Rhode Island law apply in the future.

Debt, credit cards, premarital debt, student loans

Will each party be responsible for separate premarital debt? Who will be responsible for joint premarital debt? Will the parties agree to split joint marital debt 50-50? Who will pay individual / sole debt incurred during the marriage?

Life Insurance

Is either party agreeing to maintain a life insurance policy for the benefit of the other spouse? This is often done to make sure the spouse will collect upon death even if the person’s estate plan otherwise excludes the spouse. Will the life insurance be required to be maintained after the divorce or separation?

Gifts

Who will get to keep gifts between the parties? What will happen to joint gifts or gifts given to one person but not the other. Who will get the engagement ring, wedding band, jewelry, art etc.?

Severability clause

Most good premarital agreements contain a severability clause such as the one set forth here: “SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a Court of competent jurisdiction, this Agreement shall be construed as if such illegal, invalid or void provision were not a part hereof and the validity of the remaining provisions shall be unaffected thereby.”

Legal fees upon divorce. Will either party be required to pay the others legal fees as part of the divorce?

Some prenuptial agreements address the issue of legal fees in a potential divorce.

Acknowledgments of counsel, the opportunity to retain a lawyer and an acknowledgment that agreement is freely and voluntarily entered into

It is important that the parties acknowledge that they carefully read the agreement, that they signed it freely and voluntarily and that they believe that the agreement is fair and equitable to them.

Many agreements contain a paragraph similar to this: ACKNOWLEDGMENT. The parties have, during a series of conferences between themselves, mutually agreed upon the arrangements set forth herein. Each party hereto declares that he or she has had the opportunity to seek independent legal advice by counsel of his or her own selection and that each is satisfied as to this agreement’s fairness. The wife has retained Attorney X to represent her. The provisions of this Agreement and their legal effect have been fully explained to the parties and each party acknowledges that he and she believes the Agreement is fair and equitable and is freely and voluntarily entered into.

Integration and modification provision

It is crucial that there are no side agreements or verbal agreements outside of the four corners of the documents. An integration clause is an important facet of a prenuptial agreement.

Cooperation provision

A Cooperation provision is essential to a good ante-nuptial agreement. “COOPERATION. The parties hereto shall at any time, and from time to time, execute and deliver all such deeds and other documents as may be necessary, and do all such things as the other of them, his or her heirs, executors or administrators shall reasonably require for the purpose of giving full effect to this Agreement. Each of the parties hereto shall release and quitclaim unto the other, or to such others as he or she respectively may request, all of his or her rights of courtesy or of dower. It is the intention of this clause to permit and empower each of the parties hereto to deal with his or her own separate property now owned or hereafter acquired, in all respects, except as limited by this Agreement, as if each party hereto were single.”

Disclosure Provision

“DISCLOSURE. Each of the parties has made a full disclosure to the other of all property, assets and liabilities owned or otherwise held by each respective party, as listed in Exhibits “A,” “B,” “C,” and “D” attached hereto. The parties hereby acknowledge that they are aware that in the future the financial circumstances of either or both of them may be altered in some way, whether substantially, directly, indirectly or otherwise.”

Notary and Attestation of Counsel

The agreement must be signed in front of a notary and if the parties both have attorneys they may want to include an attestation of counsel paragraph that both lawyers

David Slepkow is a Rhode Island Lawyer concentrating in divorce, family law, restraining orders, child support, personal injury law, child custody and visitation. David Slepkow was voted a top three lawyer in RI by the Providence Journal Reader’s choice poll. David has been practicing for over 20 years and is licensed in Rhode Island and Massachusetts. Free initial consultations. You can contact attorney David Slepkow by going to Rhode Island Divorce Family Lawyer

Statistics

“15% of people who have been through a divorce regret not having a prenuptial agreement in place.44% of singles believe that having a prenup is a good idea before entering into a marriage. The three top reasons why a prenuptial agreement is put into place is to provide protection of separate property, alimony/spousal maintenance, and the division of property.” http://brandongaille.com/18-interesting-prenuptial-agreement-statistics/

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David Slepkow is a Rhode Island premarital agreement attorney with over 22 years of divorce experience. RI prenuptial agreement lawyer, David Slepkow was voted as a top 3 lawyer in RI by the Providence Journal Reader’s poll.

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The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer or attorney as an expert or specialist in any field of practice.