I have been a regular in Providence Family Court for over 20 years. I have watched hundreds, perhaps, thousands of nominal divorce hearings. I have represented clients in hundreds of such hearings in Providence Family Court. I have watched hundreds of default nominal cases.
RI divorce lawyer explains nominal divorce hearing
A default nominal trial is when the judge allows the nominal trial to go forward without the defendant present in Rhode Island Family Court.
The Plaintiff testifies at the nominal trial seeking a divorce by default. The defendant should have been properly served with the summons and complaint pursuant to RI law.
The defendant does not answer or appear. In order for the nominal hearing to move forward, more than 20 days must elapse since the service of process of the summons and complaint. At the end of the hearing, the judge awards an absolute divorce which is not finalized until final judgment enters.
Nominal divorce trial
In almost every default nominal plaintiff counsel asks their client the nearly same questions, almost like an automaton!
How old are you? How is your health? What is your education level? What is your occupation? How much do you earn per week / month or year? Are you able to support yourself? Do you understand what spousal support is in RI? Do you understand that if you waive alimony today, it is permanent meaning you can never come back to this court or any court at any time in the future to get alimony? Are you asking this judge for permission to waive alimony permanently?
Waiver of Spousal support
For decades RI divorce lawyers have been asking their clients to waive spousal support in a default divorce
This is the way it has been done for time immemorial. I do this, other lawyers do this and judges expect this! It is done this way because it has always been done this way. Why is this done? Can someone tell me why? Can an old timer, matrimonial lawyer step to the plate and justify this? Can a judge force me to do this, if I do not want to play along? Is there a law, a justification or rationale for this? Can someone explain?
What is legal justification?
Is there a law, rule, administrative order, a justification/ rationale for this? There does appear to be lots of rationalizations but few justifications. Did this evolve over
the years based on some sort of culture in which judicial expediency took precedence over a RI divorce lawyer acting as zealous advocates for their clients?
Group think?
In other words is this done so that the Providence Family Court calendars do not get clogged by litigants coming back many years later requesting alimony when circumstances changed? Could this be an example of group think?
Wikipedia defines group think as: ” Group think is a psychological phenomenon that occurs within a group of people, in which the desire for harmony or conformity in the group results in an incorrect or deviant decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative ideas or viewpoints, and by isolating themselves from outside influences.”
Alimony in RI
It makes no sense for someone who is struggling financially to request to waive alimony permanently in a Rhode Island Default nominal divorce irrespective of a spouse ability to pay support.
It is perplexing, to say the least, why a person who has three children, makes minimum wage and is struggling to make ends meet would ask for permission to waive spousal support permanently! Understandably, her husband, who was defaulted, may be a drug addict who does not have a penny to his name to pay spousal support. But what if he hits Powerball tomorrow?
Factual scenario in Providence Family Court
Lets look at another factual scenario. Husband is a millionaire and wife earns a good living, 100k a year. Clearly, husband has an ability to pay alimony. Wife does not have the need for alimony. Husband does not show up for the divorce nominal hearing. Wife waives alimony permanently at the nominal divorce trial asserting that she is able to support herself. Wife falls down the stairs at the Garrahy Judicial Complex in Providence. She becomes permanently disabled while exiting the courthouse after her nominal hearing. This occurs after waiving alimony permanently. She is unable to work and has to live off a meager stipend from social security disability. What was the upside of asking the judge permission to waive alimony permanently? If the judge wanted to deny alimony then so be it.
I get it…
I get it. The judge may be unwilling to award alimony even if the plaintiff requested spousal support and testified accordingly because husband does not have the ability to pay. But having said that, why not put on the record that alimony is left open so that if something unforeseen occurs wife would have a window of opportunity to get support? This is especially the case if this was a long marriage and the spouse is struggling to make ends meet.
I understand why a spouse who is well off would waive alimony permanently at the nominal divorce hearing. It is the path of least resistance perhaps.
Typically, in a contested case, both parties who do not currently qualify for alimony will waive alimony permanently at the nominal hearing. This makes perfect sense
because the other side is not going to agree to the divorce or settlement if alimony is left open. This is bargained for exchange. But in the case of a default divorce, there is no opposition and NO ONE TO BARGAIN WITH and no one to EXPLAIN THE OTHER SIDE OF THE STORY.
Rhode Island divorce attorney
As Rhode Island divorce attorneys, we are supposed to be representing the best interests of our clients. If the opposing litigant is not in attendance and no one is opposing our case, then why is it in the best interest of our clients to REQUEST to waive spousal support permanently? WHY not leave alimony open? This is clearly allowed under Rhode Island law, and is validated by The Rhode Island Supreme Court in Calitri v Calitri 347 A.2nd 631 (1975). However, in Thompson v. Thompson the RI Highest Tribunal sitting in Providence discussed open ended separate maintenance in the context of a “window of opportunity” to seek alimony. In, Thompson, The RI Supreme Court determined:
Spousal support is rehabilitative in Rhode Island
“[A]limony is a rehabilitative tool intended to provide temporary support until a spouse is self-sufficient, and is based purely on need.” Giammarco v. Giammarco, 959 A.2d 531, 535 (R.I.2008) (quoting Berard v. Berard, 749 A.2d 577, 581 (R.I.2000)). It is prospective, not retroactive, in nature and is designed to provide support for a party until he or she can become self-sufficient. We are of the opinion that the window of opportunity for an award of prospective alimony is closed and there shall be no alimony in this case.” Read my post regarding open ended alimony in RI.
Husband or wife is disabled
To be fair, I have seen numerous cases in which wife is disabled at the time of the nominal hearing and does request that
alimony be left open. It is perplexing, to say the least, why a person who has three children and makes minimum wage and is struggling to make ends meet would waive alimony permanently in a divorce. Nonetheless, this happens in Providence Family Court on a day to day basis.The judge may be unwilling to award support even if the plaintiff requested alimony because husband does not have the ability to pay. Ability to pay separate maintenance is a crucial prong to an alimony decision! Also the other side is not there to give their side of the story. But having said that, why not put on the record that alimony is left open so that if something unforeseen occurs, wife would have a window of opportunity to get support. Even if the judge refuses to leave alimony open, there is no legal requirement to ask PERMISSION to waive alimony permanently!
Quote:
“The economic, social, and cultural factors that have changed our views of marriage have shattered our once cohesive understanding of alimony. Some courts and commentators, and even a few legislatures, have reasoned that since women now work, alimony should be curtailed drastically or even abolished. This trend was most recently exhibited in Massachusetts, where on September 26, 2011, the governor signed legislation, ending alimony when the payor retires, and generally limiting alimony to a number of years based on the length of the marriage.Most states have not yet taken such a drastic step: alimony continues to stumble along, based on habit and precedent as much as logic, as part of the modern divorce case. We have difficulty explaining its precise purpose; yet at some level, we are reluctant to get rid of it entirely. In short, the law of alimony is in the midst of an identity crisis. It was well understood a generation ago; however, today it often is seen as a relic of earlier times. Our reluctance to abolish alimony entirely shows that at some level, in some cases, it must serve a very important purpose.”Current Trends in Alimony Law: Where Are We Now?Vol. 1, No. 9aura W. Morgan is the owner and operator of Family Law Consulting, in Charlottesville, Virginia, providing research and writing services to family law attorneys nationwide. Along with Brett R. Turner, she is the author of the forthcoming Alimony Handbook, to be published by the ABA. American bar