David Slepkow

Rhode Island divorce attorney, David Slepkow, takes a moment to look back at the infamous Cardinale v. Cardinale divorce. The license plate feud between the husband and wife in the Cardinale case was quintessential RI. However, This was a rather unfortunate moment in Providence Family Court history.

Blowing chunks in Providence Family Court?

This moment occurred in an infamous divorce brouhaha, the Cardinale v. Cardinale divorce. It is not surprising, that in Rhode Island there would be a dispute about a license plate.

During the trial, Ms. Cardinale was so upset about the license plate she left the Courtroom to barf. Before she exited the courtroom, the trial justice told her to “.. vomit and come back.”

Judge removed from the case as a result of insensitive comments

The trial justice also opined, “The court notes that whenever Mrs. Cardinale is not happy with the decisions of this court, she suddenly gets sick.” This unfortunate commentary by the trial justice resulted in the judge being eventually removed from the case by the RI Supreme Court.

worst 3 divorces in RI

The RI Family Court Justice lost control of  the Rhode Island divorce trial

After a seemingly endless divorce trial in Providence Family Court, the matter ultimately was decided by the Rhode Island Supreme Court.  The trial Justice lost control of the trial and the RI divorce lawyers were bickering like the Hatfield and Mccoys.  The matter was appealed to the RI Supreme Court numerous times, during the course of the trial. Read the Cardinale case here.

These quotes are from The Rhode Island Supreme Court ‘s decision. The Cardinale case is infamous in the corridors of Providence Family Court among old timers.

Cardinale v. Cardinale

“Moreover, the trial justice’s comments about the numerous orders issued by this Court were inappropriate, if not petulant…  The record discloses that even in the final stages of this saga, the parties were fighting over every item of personalty acquired during the marriage, including-consistent with this state’s rich history-a license plate from Joanne’s uncle. ” Supreme Court of Rhode Island, Joanne T. CARDINALE v. Norman A. CARDINALE. No. 2004-58-Appeal Decided: January 9, 2006 Present:  WILLIAMS, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ. Maureen Gemma, Esq., Cranston, for Plaintiff. James A. Bigos, Esq., for Defendant. OPINION

Quintessential RI: The troubling license plate transcript feud mess

The license plate feud was the straw that broke the camel’s back as far as the Rhode Island Supreme Court was concerned. The RI Supreme Court sitting in Providence summarily discharged the trial justice as a result of the license plate saga. The TOP Court reasoned in Cardinale “This commentary by a judicial officer is improper and suggests a preconceived or settled opinion against a litigant, such that the trial justice should be excused from further responsibilities in this case. “ Cavanagh v. Cavanagh, 118 R.I. 608, 621, 375 A.2d 911, 917 (1977) (citing State v. Buckley, 104 R.I. 317, 322, 244 A.2d 254, 257 (1968)).¹⁸”

“When the trial justice summarily decided to accept Norman’s testimony about who owned the plate, the following colloquy occurred:

“Joanne:  It was my plate, Your Honor, on my car.

“The Court:  Oh, you’re finally speaking up.

“Joanne:  When it comes to this plate, it’s very important to me.   It was my uncle who was like my father.   It means nothing to him.   This is purely revenge.   And I want that plate of [sic] anything.

“The Court:  I find it hard to believe that revenge is involved in this lawsuit.

“Joanne:  I have no revenge here.   All I want is fairness.   That plate is very special to me, and he knows that, and that’s the only reason he wants that plate.   And I think this is a travesty, that he would keep that.   And my mother cries everyday and she’s 83, your honor.

“The Court:  She cries because she doesn’t have that plate?

“Joanne:  Yes, she does.

“The Court:  For God’s sake, give her the plate and stop this 80-year old woman from crying over a plate.

“( [Joanne] Leaving Courtroom)

“The Court:  Mrs. Cardinale, get right back here and sit down.

“Joanne:  I am going to vomit.

“The Court:  Then vomit and come back.

“( [Joanne] Leaves Courtroom)

“The Court: [The] [c]ourt notes that whenever Mrs. Cardinale is not happy with the decisions of this court, she suddenly gets sick.

“Now, what else do you have, [counsel]?” Cardinale v Cardinale

Judge’s comments “inappropriate”

“Moreover, the trial justice’s comments about the numerous orders issued by this Court were inappropriate, if not petulant.The plaintiff has alleged that “[h]er decision to seek instructions from this Court had an immediate impact on the trial judge’s attitude, much like throwing gas on a fire.” Id.

RI Supreme Court admonishes both divorce lawyers for inappropriate lack of civility

“In her brief to this Court Joanne has alleged that the conduct and comments of the trial justice suggest bias that would lead a reasonable person to question his impartiality.   This was not a simple case, and its difficulty was greatly compounded by the fact that counsel were antagonistic and caustic toward each other and the parties. Although we do not undertake this discussion lightly, the level of acrimony contained in this record requires our review. The lack of civility between counsel in this case is regrettable and inappropriate. It was the responsibility of the trial justice to control the proceedings and counsel. He failed to do so.” Id.

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A Rhode Island divorce attorney with extensive experience in Providence Family court discusses what constitutes marital property in RI. This article also explains Rhode Island divorce law concerning what is not marital property and thus not subject to the equitable distribution statute. If you need legal advice about a divorce in RI, contact a Rhode Island divorce lawyer.

Marriage is a “Partnership” and marital assets are divided in divorce fairly

Rhode Island is an equitable distribution of assets state. R.I.G.L 15-5-16.1 is the statute that pertains to equitable distribution of assets. (TITLE 15 Domestic Relations CHAPTER 15-5 Divorce and Separation)

The Rhode Island Supreme Court has stated on numerous occasions that marriage is an economic partnership. “The factors enumerated in the Rhode Island statute, G.L. 1956 (1981 Reenactment) § 15-5-16.1, clearly emphasize the partnership theory of marriage and focus on an equitable distribution of the marital assets.” D’Agostino v. D’Agostino  463 A.2d 200 (1983) Giacomo D’AGOSTINO v. Gina J. D’AGOSTINO. 81-3-Appeal. Supreme Court of Rhode Island. July 29, 1983. Robert S. Ciresi, North Providence, for plaintiff. Thomas E. Hefner, Providence, for defendant. OPINION BEVILACQUA, Chief Justice

In Rhode Island the RI Family Court justice must make a “fair and just” division of marital assets. The Court must look at the contributions that each party made to the “marital enterprise.” Stanzler v. Stanzler, 560 A.2d 342 (1989)

The assets capable of being divided obviously include real estate, pensions, retirement accounts, 401k, cars, boats, annuities, time shares, boats,  artwork, collectibles, bank accounts, individual retirement accounts (IRA) motorcycles, vehicles, time shares, furniture, televisions, computers, and business interests. Retirement benefits are marital assets under Rhode Island Law if acquired during the course of the marriage. Certain disability pensions may not be marital asset.

Equitable does not necessarily mean equal!

The equitable distribution statute is designed to fairly  and equitably assign marital property in a Rhode Island Divorce. The division is primarily premised on the contributions that each party made to the marital estate. Judges in Rhode Island and Providence Plantations have a lot of discretion to equitably divide marital assets. Equitable does not always mean equal!

In Stanzler v. Stanzler, 560 A.2d 342 (1989) The Rhode Island Supreme Court stated, “It is well established that the intent of property division is to provide a fair and just assignment of the marital assets, D’Agostino v. D’Agostino, 463 A.2d 200, 203 (R.I. 1983), on the basis of the joint contribution of the spouses to the marital enterprise. Wordell v. Wordell, 470 A.2d 665, 667 (R.I. 1984). Property division, however, does not require an equal division of the property, Casey v. Casey, 494 A.2d 80, 82-83 (R.I. 1985), and is subject to the concept that nonmonetary, as well as monetary, contributions may enhance the marital partnership. Wordell, 470 A.2d at 667. In dividing property, a trial justice must decide which assets are marital property, consider the contribution of each party, and then distribute the property. Lancellotti v. Lancellotti, 481 A.2d 7, 10 (R.I. 1984). Finally we note that a trial justice’s assignment of property will not be overturned unless it constitutes an abuse of discretion. Centazzo v. Centazzo, 509 A.2d 995, 997 (R.I. 1986).

What factors must a Providence Family Court judge look at when dividing marital property?

“(1) The length of the marriage;

(2) The conduct of the parties during the marriage;

(3) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates;

(4) The contribution and services of either party as a homemaker;

(5) The health and age of the parties;

(6) The amount and sources of income of each of the parties;

(7) The occupation and employability of each of the parties;

(8) The opportunity of each party for future acquisition of capital assets and income;

(9) The contribution by one party to the education, training, licensure, business, or increased earning power of the other;

(10) The need of the custodial parent to occupy or own the marital residence and to use or own its household effects taking into account the best interests of the children of the marriage;

(11) Either party’s wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and

(12) Any factor which the court shall expressly find to be just and proper.” § 15-5-16.1. Assignment of property. 

What steps must a Rhode Island Family Court Judge use to make an equitable distribution in a Rhode Island Divorce?

Equitable division of assets in RI is a multi-step process. The first step is for the Judge to determine is: what property constitutes marital property in Rhode Island? After a judge determines what constitutes marital property, the Rhode Island Family Court judge must apply the factors set forth in § 15-5-16.1. Assignment of property.  15-16.1. The judge must lastly equitably divide the marital property.

“The equitable-distribution process requires three steps. First, the trial justice must determine which of the parties’ assets are marital property and which are non-marital property. Second, the trial justice must consider the factors enumerated in § 15-5-16.1. Third, he or she must distribute the marital property.In Rosemarie RUFFEL v. Lance RUFFEL  Quinn v. Quinn, 512 A.2d 848, 852 (R.I. 1986).” 535 A.2d 1268 (1988), Elaine VANNI v. Joseph VANNI. No. 85-495. Supreme Court of Rhode Island. January 26, 1988. Sanford M. Kirshenbaum, Providence, for plaintiff. Mortimer C. Newton, Providence, for defendant.OPINION MURRAY, Justice.  Vanni v. Vanni, 535 A.2d 1268, 1270 (R.I.1988).

Should I file motion for temporary Orders or Emergency Relief in RI Divorce?

What are the Automatic Court orders and when do they go into effect?

The Husband and wife must be careful not to violate the automatic court orders pertaining to the parties’ assets. This automatic order enters upon the Plaintiff signing the Divorce Petition as to the Plaintiff and becomes effective as to the Defendant in the divorce when the summons is served upon the Defendant. This order essentially prevents either party from unlawfully dissipating assets or canceling life or health insurance among other things. Read the automatic court order here.

What property and assets constitute Marital Property subject to equitable distribution in RI?

All property acquired during the course of the Marriage by either party constitutes Marital property subject to equitable distribution with certain exempt property set forth below.

Case law: “Identifying which assets are included in the overall marital pot is a crucial first step in the distribution process. See Vanni, 535 A.2d at 1270. “We have previously stated that a trial justice in undertaking to distribute marital assets must initially separate nonmarital assets from the marital assets in accordance with § 15-5-16.1.” DiOrio v. DiOrio, 751 A.2d 747, 751 (R.I.2000) (quoting Gervais, 688 A.2d at 1305). Under § 15-5-16.1(a), the Family Court is granted broad discretionary authority to “assign to either the husband or wife a portion of the estate of the other.” The Family Court is prohibited by statute from assigning three categories of property: (1) “property or an interest in property held in the name of one of the parties if the property was held by the party prior to the marriage” (although any income or appreciation in value of that property attributable to the efforts of either spouse during the marriage is included); (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.” Section 15-5-16.1(b).” Ruffel v. Ruffel

• Gifts given by the parties to each other are marital assets which can be equitable divided in a Rhode Island Divorce.

What assets are not marital property under Rhode Island Divorce Law?

Rhode Island divorce lawyer, David Slepkow explains what assets are not marital property in a RI divorce.

Premarital property is not subject to the equitable division statute.

Premarital property is property that was acquired by either spouse prior to the date of the marriage.  Premarital property in general is not a marital asset under RI law.

Applicable statute: 15-5-16.1 (b)  “The court may not assign property or an interest in property held in the name of one of the parties if the property was held by the party prior to the marriage, but may assign income which has been derived from the property during the term of the marriage, and the court may assign the appreciation of value from the date of the marriage of property or an interest in property which was held in the name of one party prior to the marriage which increased in value as a result of the efforts of either spouse during the marriage. The court also shall not assign 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. The court shall not assign 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.”

Appreciation of a premarital asset is a marital asset which can be assigned only if the appreciation resulted from “efforts of either spouse.”

The appreciation in value of premarital property during the course of the marriage is also subject to the equitable division statute. The appreciation of value of premarital property may be assigned pursuant to 15-5-16.1(b). “We recognize that ordinarily only the appreciation in value of property held in the name of one of the spouses prior to the marriage should be assigned as a marital asset. See § 15-5-16.1(b).^[5] 891 A.2d 885 (2006) Josephine K. HORTON v.Duane M. HORTON.No. 2004-353-Appeal. Supreme Court of Rhode Island. February 27, 2006.

In order for the appreciation of value of premarital property to be equitably divided, the appreciation must result from the efforts of either spouse during the marriage.  Only active appreciation of a premarital asset is marital property. The Rhode Island legislature is distinguishing “active appreciation” from more passive gains.

Income during the marriage from a premarital asset is a marital asset

Income procured from a premarital property is a marital asset. Income derived from premarital property during the course of the marriage is subject to the equitable distribution statute in a divorce.  It is irrelevant whether the income derived from the efforts of either spouse.

Are gifts to one spouse a marital asset in RI? | Gifted property

Gifts from third parties to one spouse whether acquired before or during the marriage are not marital property subject to equitable division in a divorce under Rhode Island Law.”…The court shall not assign 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….” 15-5-16.1

The income and appreciation from gifted property is not marital property. This specifically includes life insurance and distributions from trusts.

Inherited property is not marital property

Inherited property is not considered marital property in Rhode Island. The income and appreciation of inherited property is not subject to the equitable distribution statute in a RI divorce.”…The court also shall not assign 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…”  http://webserver.rilin.state.ri.us/Statutes/TITLE15/15-5/15-5-16.1.HTM

What is a gift under RI law?

In Ruffel v. Ruffel, 900 A.2d 1178 (R.I. 2006) the Rhode island Supreme Court defined a gift by stating: “The result of a valid gift of property is that title to that property is transferred from the donor to the donee.   The elements of a valid gift are a “present true donative intent on the part of the donor,” and “some manifestation such as an actual or symbolic delivery of the subject of the gift so as to completely divest the donor of dominion and control of it.”  Black v. Wiesner, 112 R.I. 261, 267, 308 A.2d 511, 515 (1973).

Is the existence of a gift tax return conclusive evidence as to whether the transaction was a gift?

“Our opinion in Chase, however, stated that the existence of gift-tax returns “is not conclusive evidence that a gift has been made.”  Id. at 547, 294 A.2d at 397.   We read this statement simply to mean that gift-tax returns should be considered but are not to be treated as a final litmus test. ” Virginia GERVAIS v. Donald GERVAIS

Advanced degrees

An advanced degree is not a marital asset. A professional’s license such as as a lawyer’s license to practice law is not a marital asset.

Can property, which was originally non-marital separate property, be converted to marital property?

Yes. The Rhode Island divorce case of Quinn v Quinn is the seminal RI case pertaining to doctrine of transmutation. The doctrine of transmutation can change the character of non marital

property to marital property. In Quinn v. Quinn, 512 A.2d 848, 852 (R.I. 1986), the Rhode Island Supreme Court stated that the “transfer of non marital assets from one spouse to both spouses jointly, in the absence of clear and convincing evidence to the contrary, will be understood as evincing an intention to transfer the property to the marital estate. This doctrine, known as transmutation, is consistent with the recognition that marriage is a partnership … The provisions in 15-5-16.1 are designed to achieve that end. Oliviera v. Oliviera

If one spouse transfers non-marital property to the other spouse in joint names then that will usually change the property to marital property. However, the spouse can by clear and convincing evidence prove that the spouse did not intend to create an ownership interest in the property. There is, however, a rebuttable presumption that the transfer was intended to gift the property to the other spouse.

Personal Injury Settlements and Car accident Claims in RI

A personal injury settlement or judgment for pain and suffering, future lost earnings and reimbursement for future medical bills are not marital property in RI. Awards for past medical expenses and past lost wages for a personal injury, slip and fall or workers compensation claim are marital property. Workers compensation awards compensating disfigurement is not marital property.

“We find that that portion of the personal-injury settlement that compensates for future losses, losses incurred after entry of a final divorce, including future loss of wages, future medical expenses, and future loss of earning capacity, are separate personal property of the injured spouse, not subject to equitable distribution under § 15-5-16.1.”

“We find that a pain-and-suffering award of an injured spouse is compensation for or replacement of personal property, that spouse’s good health, which was acquired before the marriage. Therefore, that portion of a personal-injury settlement that is intended to compensate an injured spouse for his or her pain and suffering is nonmarital property, not subject to equitable distribution under § 15-5-16.1.” Kirk v Kirk.

Past Lost Wages and Past Medical Expenses are Marital Property Subject to Equitable Division in a RI Divorce

“We find, however, that that portion of the personal injury settlement compensating for past loss of wages and past uninsured medical expenses incurred during the marriage, losses that have depleted funds of the marital estate, are marital property subject to equitable distribution under § 15-5-16.1.” Id.

Workers compensation or injury awards for past lost wages and past medical expenses are marital property in Rhode Island

“Accordingly payments that compensate for past loss of wages and past medical expenses incurred during the marriage are marital property subject to equitable distribution under § 15-5-16.1. Those payments that compensate for disfigurement and/or loss of use of a limb and those payments that replace lost future wages and future medical expenses are separate personal property of the injured spouse, not subject to equitable distribution under § 15-5-16.1. Future wages and future medical expenses are losses incurred after entry of a final divorce. This analysis applies both to one-time lump-sum payments and to regular weekly payments. Consistent with our analysis of personal-injury settlements, only that portion of the injured spouse’s one-time lump-sum payment or weekly payment that replaces marital property is subject to equitable distribution under § 15-5-16.1.” KIRK v.  KIRK., 577 A.2d 976 (1990)

Are Social Security, SSI benefits or SSDI Benefits Marital property?

Social security benefits are not marital property subject to equitable distribution in a divorce. Social security benefits are an entitlement not an asset.

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Property held prior to marriage- Premarital property

Under Rhode Island divorce law, not all assets are marital  property subject to equitable division by the Rhode Island Family Court. The general rule is that property acquired prior to the marriage is not a marital asset subject to equitable division by a Justice of the Rhode Island Family Court. RI law 15-5-16.1 (b)Premarital property is not marital property subject to the equitable division statute under Rhode Island law.

Commentary: Please note that the statute particularly states that the court cannot assign premarital property “which increased in value as a result of the efforts of either spouse during the marriage.” This is commonly known as active appreciation. Active appreciation is distinguishable from passive appreciation.