Rhode Island Family Law Distinctions Flashcards
(107 cards)
1
Q
In Rhode Island, what can happen if a marriage is called off?
A
Rhode Island recognizes a cause of action for “breach of promise to marry.”
2
Q
In Rhode Island, what remedies are available for a breach of promise to marry?
A
- loss of benefits she would have enjoyed as a spouse
- financial loss
- damages for humiliation or health impairment
3
Q
What model statutes has Rhode Island adopted relating to family law?
A
RI has adopted:
- Uniform Premarital Agreement Act
- Uniform Divorce Recognition Act
- Uniform Interstate Family Support Act
- Uniform Child Custody Jurisdiction and Enforcement Act
- Uniform Law on Paternity
RI has NOT adopted:
- Uniform Parentage Act
4
Q
What is the marriage license requirement in Rhode Island?
A
In RI, persons intending to marry must:
(1) personally obtain a license
(2) from the clerk of the town or city
(a) where either party resides or,
(b) if both parties are nonresidents, then
where the marriage is to be performed.
(3) produce an authenticated copy of any divorce decree
(4) declare intent to marry
5
Q
What are not required to obtain a marriage license in Rhode Island?
A
Rhode Island does NOT require:
- blood tests
- physical examinations
- waiting periods
6
Q
How many witnesses are required at the marrage ceremony?
A
At least 2 witnesses other than the officiant
7
Q
Does Rhode Island recognize common law marriage?
A
Yes
8
Q
What is required to establish a common law marriage under Rhode Island law?
A
It is not enough to show a long term, loving, committed relationship, cohabited, and an economic partnership.
(1) The parties must show by clear and convincing evidence that they “seriously intended to enter into the husband-wife relationship.”
(2) Their conduct also must be of such a character as to “lead to a belief in the community that they were married”.
(3) Inferences may be drawn from from cohabitation, declarations, and reputation among kindred and friends.
9
Q
Does Rhode Island recognize putative marriages?
A
Yes
10
Q
What is required to establish a putative marriage in Rhode Island?
A
Although the marriage is in valid, it will be deemed a putative marriage if the parties engaged in a marriage ceremony on the good faith belief in the marriage’s validity.
11
Q
What is the difference between common law marriage and putative marriage?
A
A putative marriage is created an attempt to get properly marriage through formalities that were technically flawed, unbeknownst the the spouses; a common law marriage is a genuine commitment to be a married couple without formalities or ceremony.
[Know this concept - don’t memorize.]
12
Q
In Rhode Island, when is a prenuptial agreement not enforced?
A
When shown by clear an convincing evidence that it is unconscionable as a matter of law.
13
Q
Where are domestic abuse proceedings heard in Rhode Island?
A
either:
- family court in the county where plaintiff resides, or
- district court in county where plaintiff resides
14
Q
In Rhode Island, where do appeals from the family get taken?
A
directly to the RI Supreme Court
15
Q
What relief can Rhode Island family courts award in a domestic abuse case?
A
- custody
- child support
- order defendant to vacate the family home
- order defendant to surrender firearms in his possession
- issue other protective order
16
Q
For how long can any relief by the Rhode Island family court be ordered?
A
any relief granted may not exceed 3 years
17
Q
What is the punishment for violation of a domestic protective order in Rhode Island?
A
A violation of a protective order is punishable by:
- fine
- imprisonment or
- both
18
Q
In Rhode Island, what rules apply to testimony by one spouse against the other spouse in (a) civil, (b) divorce/property division, and (c) criminal cases?
A
In civil cases: spouses can testify against one another, but neither spouse is permitted to give incriminating testimony or to disclose communications made during the marriage.
In divorce/property division cases: the spouses CAN giving incriminating testimony or disclose communications.
In criminal cases: a spouse’s testimony is admissible but the testifying spouse must offer himself as a witness.
19
Q
What fault-based grounds for divorce exist in Rhode Island?
A
(1) impotency
(2) adultery
(3) extreme cruelty
(4) willful dessertion
(5) continued drunkenness
(6) drug abuse
(7) neglect
(8) gross misbehavior and wickedness
20
Q
In Rhode Island, when is a divorce granted because of civil or presumed death?
A
when one spouse is
- deemed “civilly dead” as a result of imprisonment or criminal activity, or
- presumed “actually dead” because of absence or other circumstances
21
Q
In Rhode Island, when is a divorce granted because of willful desertion?
A
willful desertion = spouse left without good cause and has not returned for a period of at least 5 years, or for a shorter period in the court’s discretion
22
Q
In Rhode Island, when is a divorce granted because of neglect?
A
(1) neglect and refusal
(2) for at least 1 year prior to filing the petition
(3) by the husband
(4) to provide necessaries for his wife’s subsistence
(5) the husband being of sufficient ability
[may be enforced against a wife to the extent reasonably practical]
23
Q
In Rhode Island, when is a divorce granted because gross misbehavior and wickedness?
A
gross misbehavior and wickedness is conduct repugnant to the marriage covenant
24
Q
In Rhode Island, when is a divorce granted because of physical separation?
A
Physical separation is a “no fault” ground for divorce in Rhode Island. It is established where:
(1) the parties lived apart
(2) for at least 3 years
(3) voluntarily or involuntarily, and
(4) usual relations that exist between married persons, including intercourse, do not continue
25
In Rhode Island, when is a divorce granted because of an irremediable breakdown?
Rhode Island permits a "no fault" divorce when the spouses have irreconcilable differences which have caused the irremediable breakdown of the marriage.
26
In Rhode Island, what evidentiary limitation is there in a divorce proceeding based on an irremediable breakdown of the marriage?
Specific acts of misconduct are inadmissible on the issue of whether there has been an irremediable breakdown of the marriage but may be admitted concerning child custody and family support.
27
In Rhode Island when is divorce granted for drug abuse?
based on habitual, excessive, and intemperate use of opium, morphine, or chloral
28
What are the no-fault grounds for divorce in Rhode Island?
(1) physical separation
| (2) irreconcilable differences
29
In Rhode Island, how is the plaintiff's uncorroborated testimony treated in a divorce proceeding?
The court may in its discretion grant a divorce on plaintiff's testimony alone if the acts giving rise to divorce are such that the plaintiff could not ordinarily produce corroborating testimony.
30
What defenses to fault-based divorce are available in Rhode Island?
- "Collusion of the parties" to procure the divorce
- Condonation of past acts (at least for acts of extreme cruelty)
- "Recrimination" - where the petitioner is not free from fault or provoked domestic discord
31
In Rhode Island, what is the personal jurisdictional requirement to grant a divorce decree?
Either the petitioner or defendant must have been a Rhode Island domiciled inhabitant and resident for one year before the complaint is filed.
32
If a person leaves Rhode Island to engage in military service, what is the effect on the person's domicile?
Rhode Island continues as the person's domicile during military service and for 30 days thereafter.
33
What subject matters do the Rhode Island family court have jurisdiction over?
Original:
- divorce proceedings and allowance motions
- family support
- child custody
Ancillary:
- other matters arising from the petition, such as partitions, accountings, receiverships, asset sequestration, resulting and constructive trusts, trust impressions, and other equitable matters
34
When does the Rhode Island family court's ancillary jurisdiction expire?
when a final decree is entered, with the exception of partitions of real estate held by spouses as tenants by the entirety, which lasts for 6 months after the entry of final decree
35
What venue is proper for a divorce proceeding in Rhode Island?
- in county where plaintiff resides, unless complaint is based on defendant's residence
- if based on defendant's residence, then in Providence county or the county where defendant resides
36
On what grounds can a Rhode Island family court transfer venue, even though venue is proper?
The family court may transfer venue:
(1) to Providence County family court if trial would require at least 3 days of hearings
(2) to any other county for convenience
37
In a divorce petition in Rhode Island, what is the notice requirement?
Defendant must:
(a) be personally served with process in the state,
(b) be served with personal notice, duly authenticated, out of state,
(c) enter an appearance in the case, or
(d) be noticed by publication if authorized by the court.
38
In Rhode Island, when does the court authorize a defendant in a divorce proceeding to be noticed of the action by publication?
When plaintiff:
- does not know the defendant's address, and
- has not been able to ascertain it
- after reasonable inquiry and search for 6 months
39
In Rhode Island, if a defendant is noticed of a divorce action by publication, what power does the court have?
The court can grant a divorce but cannot bind the defendant to personally pay any sum of money or do any other affirmative act.
40
When will Rhode Island not give full faith and credit to a divorce decree obtained in another jurisdiction?
if both spouses were domiciled in Rhode Island at the time divorce proceedings commenced
41
What is the trial requirement for divorce in Rhode Island?
In Rhode Island, a divorce decree requires a trial before court in open session and cannot be entered solely on the basis of:
- admissions in pleadings or
- default.
42
In Rhode Island, when is a divorce petition heard after filing?
not until at least 60 days after filing
43
What categories of automatic orders are issued upon the filing of a divorce petition in Rhode Island?
Orders relating to:
- PROPERTY - disposal
- INSURANCE - maintaining
- CHILDREN - removal, contact
- RESIDENCE - access, relocation
44
In a divorce proceeding in Rhode Island, what automatic orders can be entered relating to property?
Prohibitions against:
- sale, transfer, concealment, disposal of assets
- incurring unreasonable debts
- encumbering assets
- unreasonably using credit cards
45
In a divorce proceeding in Rhode Island, what automatic orders can be entered relating to insurance?
Prohibitions against:
- removing the other spouse or children from medical or dental insurance or failing to maintain coverage
- changing beneficiaries of life insurance policies
- failing to maintain life, car, homeowner's, or renter's insurance
46
In a divorce proceeding in Rhode Island, what automatic orders can be entered relating to children?
Prohibitions against:
- permanent removal of minor children from the state
- denying the other spouse contact with children
- failing to maintain pattern of contact with the children
47
In a divorce proceeding in Rhode Island, what automatic orders can be entered relating to the family residence?
Prohibitions against:
- denying the other spouse use of the residence
- failing to disclose relocation address where communication can be received (w/in 48 hours of the move)
48
In Rhode Island, when are automatic orders in divorce proceedings effective?
- plaintiff: upon signing the complaint
| - defendant: upon service of summons and complaint
49
In Rhode Island, when can the family court enter a restraining order?
(1) upon a petition for a restraining order OR upon filing of a complaint for divorce
(2) if defendant is "insane" OR a cause exists that would be grounds for divorce
(3) to protect a party from:
(a) interference with personal liberty
(b) bodily harm
(c) fear of imminent bodily injury by
physical menace or threat
50
In Rhode Island, how is a violation of a restraining order enforced?
- it is a misdemeanor crime
- punishable by up to $1,000 or 1 year imprisonment
- subject to the jurisdiction of the district court
51
In Rhode Island, what remedies are available for a "harmed or menaced spouse"?
- treatment, such as outpatient counseling
- regulation of custody
- spousal and child support
- attorneys fees
52
What concept does Rhode Island apply in property distribution upon divorce?
Rhode Island follows equitable distribution principles and does not observe the doctrine of community property.
53
In Rhode Island, what property is not subject "assignment" by equitable distribution?
The court may not assign property or an interest in property:
- held in the name of one of the parties and acquired by that party before the marriage
- transferred to one of the parties by inheritance or gift before, during, or after the term of the marriage
54
In Rhode Island, are income and appreciation subject to "assignment" by equitable distribution?
The court may assign income which has been derived from one spouse's separate property during the term of the marriage.
The court may assign the appreciation of value from the date of the marriage if it increased in value as a result of the efforts of either spouse during the marriage.
55
In Rhode Island, when are marital assets valued?
- at the time of trial
| - property acquired prior to final judgment may be considered, e.g., lottery winnings
56
In Rhode Island, what categories can the 12 equitable distribution factors be grouped into?
12 factors are weighed in considering the nature and value of property to be assigned at divorce.
Remember:
- conduct
- contributions
- needs
- opportunity
- other
57
In Rhode Island, in equitable distribution what factors relating to conduct are considered?
- The CONDUCT of the parties during the marriage;
- Either party's wasteful DISSIPATION of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration
58
In Rhode Island, in equitable distribution what factors relating to contributions are considered?
- The LENGTH of the marriage;
- The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in VALUE of their respective estates;
- The contribution and services of either party as a HOMEMAKER;
- The contribution by one party to the EDUCATION, training, licensure, business, or increased earning power of the other;
59
In Rhode Island, in equitable distribution what factors relating to needs are considered?
- The HEALTH and AGE of the parties;
- The amount and sources of INCOME of each of the parties;
- 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;
60
In Rhode Island, in equitable distribution what factors relating to opportunity are considered?
- The occupation and EMPLOYABILITY of each of the parties;
| - The opportunity of each party for FUTURE ACQUISITION of capital assets and income;
61
In Rhode Island, in equitable distribution what other factors can the court consider?
The court may also consider "any factor which the court shall expressly find to be just and proper."
62
In Rhode Island, are professional degrees or licenses subject to division upon divorce?
No
63
In Rhode Island, are damage awards and settlement income subject to division upon divorce?
Personal injury settlements and damages are subject to equitable distribution if they compensate for losses that have depleted the marital estate.
Includes: lost wages, out of pocket medical expenses
Does not include: pain and suffering, lost future earning capacity, future medical expenses, disfigurement, loss of limb
64
In Rhode Island, are worker's compensation benefits subject to division upon divorce?
Yes if compensating for losses that depleted the marital estate
(same rules apply as to personal injury awards and settlements)
65
In Rhode Island, are social security benefits subject to division upon divorce?
- NOT for equitable distribution
| - but yes for child or spousal support
66
In Rhode Island, are disability pensions subject to division upon divorce?
only the portion of the disability pension attributable to retirement pay
67
What is the doctrine of transmutation in Rhode Island?
Transmutation is a change in the character of property from separate to marital by an exercise of "actual intention objectively manifested."
68
In Rhode Island, is marital debt subject to assignment upon divorce?
Yes
69
What is the precedent in Rhode Island regarding a loan taken out for a child's education?
Where the loan was taken out by the mother for a child's education without the father's consent or knowledge, the court assigned the debt obligation solely to the mother.
70
(RI) What is a "deferred sale of the home"?
an order that temporarily delays the sale and awards the exclusive possession of the family home to a custodial parent in order to minimize the adverse impact of divorce on the welfare of the children
71
(RI) What must a court determine before ordering a deferred sale of the home?
(i) whether it is economically feasible to maintain mortgage payments, property taxes, insurance to avoid foreclosure, considering the resident parent's income, support, and other resources
(ii) whether a deferred sale of the home would minimize adverse impacts of divorce on the welfare of the children
72
(RI) Is an order deferring sale of the home modifiable?
Yes at the court's discretion
73
(RI) What events alter the burden of proof during a petition for modification of an order for deferred sale of the home?
- party awarded the deferred sale of the home remarries
| - change in the economic status of the parties or children, affecting the determinations on which the order was based
74
(RI) In a petition to modify an order for deferred sale of the home, where there was remarriage or were changes in economic status affecting the original determinations, how is the burden of proof affected?
There is a rebuttable presumption that a deferred sale of the home is no longer an equitable method of minimizing the adverse impacts of divorce on the children.
75
(RI) What happens if a spouse who is receiving alimony remarries?
The alimony obligation automatically and immediately terminates.
76
(RI) Does cohabitation affect alimony?
Cohabitation with a new romantic partner is not itself grounds for a modification of alimony, but a substantial change in economic circumstances as a result of cohabitation would be grounds for modification.
77
In Rhode Island, how is child support determined?
In RI, child support is determined by:
first - referencing a Schedule of Basic Support Obligations, using the combined monthly income and number of children
second - adjusting the support amount if the amount would be inequitable to the child or either parent, considering all relevant factors
78
(RI) What factors are considered in adjusting the basic child support amount?
(1) child's financial resources
(2) custodial parent's financial resources
(3) the standard of living the child would have enjoyed with no divorce
(4) the child's physical and emotional condition and educational needs
(5) the non-custodial parent's financial resources and needs
(6) all other relevant factors
79
In Rhode Island, what provisions regarding insurance is required in all child support orders?
There must be a provisions requiring either or both parents to obtain health insurance for the child when available through employment at a reasonable cost.
80
(RI) When does a child support duty terminate?
- The child support obligation continues until the child turns 18.
- It may be extended if the child is still in high school on his 18th birthday or has a severe mental or physical impairment
81
(RI) If a child is in high school on his 18th birthday, how long may a judge extend the child support obligation?
for 90 days after graduation, but in no case beyond the child's 19th birthday
82
(RI) When may a judge require child support to be extended beyond emancipation for a child who is severely physically or mentally impaired?
(1) if the onset of the disability occurred before the child's 18th birthday, and
(2) in the court's discretion, considering 6 factors
83
(RI) What six factors does the court consider in determining whether to award child support beyond emancipation for a disabled child?
(1) nature and extent of the disability;
(2) extraordinary medical expenses;
(3) ability of the child to earn income;
(4) financial resources of the child;
(5) financial resources of the parents;
(6) inability of the primary caregiver of the child to work full-time due to the care necessitated by the child.
84
(RI) If a parent with a child support obligation dies, what happens?
The child support obligation continues and the estate will be bound.
85
(RI) When the Department of Children, Youth, and Families or another agency pays for a child's support, how is reimbursement handled?
The parents are severally liable.
86
In Rhode Island, can religion be considered when determining the best interests of the child?
Yes religion can be considered as one factor but it may NOT be determinative.
87
In Rhode Island, what factor are courts not allowed to consider when determining the best interests of the child?
that a parent receives public assistance
88
What rights do grandparents have under Rhode Island family law?
By statute, grandparents can petition for visitation rights where they are being repeatedly and unreasonably denied visitation and it would be in the best interests of the child. This statute may be vulnerable to a constitutional challenge, since parents have a fundamental right to raise their children as they see fit.
89
What rights do siblings have under Rhode Island family law?
Courts may grant reasonable visitation rights to siblings, half-siblings, and step-siblings if (1) it would be in the best interests of the child and (2) if visitation was repeatedly and unreasonably denied within the last 30 days.
90
What is child snatching in Rhode Island?
A civil claim for child snatching can be brought against any person, including a parent, who:
(1) intentionally removes, causes removal, or detains
(2) a minor child
(3) with intent to deny another person's custody right under existing decree or family court order
91
(RI) Where is a civil claim for child snatching filed?
In the superior court
92
(RI) What remedies are available for a civil claim of child snatching?
- emotional distress damages
- loss of service, society, and companionship damages
- compensatory damages for expenses incurred in searching for the missing child
- punitive damages
- injunctive relief
- attorneys' fees
93
In Rhode Island, what additional grounds for a presumption of paternity are there (in addition to MEE flash cards)?
- child born within 300 days of cohabitation
| - a written acknowledgement of paternity is filed with the family court clerk and the mother does not dispute it
94
In Rhode Island, where is jurisdiction and venue proper for a paternity proceeding?
In the family court in the county where:
- the child or the alleged father resides or is found, or
- if the father is deceased where probate could be commenced.
95
In Rhode Island, what is the statute of limitations for bringing a paternity action?
A paternity action is not barred until four years after the child reaches the age of majority.
96
(RI) What is a father liable for in a suit to establish paternity?
Compensation within a six year limitations period prior to filing for:
- mother's pregnancy and confinement
- child's education, necessary support and maintenance, and medical and funeral expenses
- reasonable attorneys' fees
97
(RI) Can a petitioner recover in a paternity action after the father has died?
- Yes if the paternity suit was commenced before the father died.
- Recovery from the estate will be limited to amounts accruing prior to the father's death (for six years prior to filing).
98
(RI) How is estoppel applied in a paternity proceeding?
A party can be equitably estopped from challenging paternity when that party by conduct has accepted that the man is the child's father.
99
What duty do children have to their parents in Rhode Island?
In RI, persons over 18 have a duty to provide support and maintenance for destitute parents residing in the state when:
(1) the parent through misfortune and without fault
(2) is destitute by means of sustenance
(3) and unable by reason of old age, infirmity, or illness to support himself.
Violation of this duty is a misdemeanor.
100
(RI) What defenses are there for violating a duty to support destitute parents?
(1) as a minor the person was not reasonably supported by the parent and the parent had a duty to do so
(2) the child, who has siblings, has made proper reasonable contribution toward the destitute parent's support
101
(RI) What grounds are there for termination of parental rights?
abuse, neglect, extended imprisonment, unfit by reason of conduct seriously detrimental to the child, substance abuse, etc.
102
(RI) Where is jurisdiction proper for an adoption petition?
- If the child is under 18: family court
| - If the child is over 18: probate court of the city or town where the petitioner(s) lives
103
(RI) Who may file an adoption petition?
- Any resident of Rhode Island may file a petition to adopt any person younger than himself.
- A non-resident may petition to adopt in Rhode Island if the child, at the time of filing, is in governmental or state-licensed child placement care.
104
(RI) Who must normally be joined in an adoption petition?
- The petitioner's spouse must be joined as a petitioner unless good cause is shown.
- If non-residents both spouses must join if they are married.
105
(RI) What is required for a parent who is a minor to give a child up for adoption?
The minor parent must have consent of his/her parent, guardian, or guardian ad litem.
106
In Rhode Island, do children have a say in whether they are adopted?
If over the age of 14, a child must consent to adoption.
107
What waiting period is required for adoption in Rhode Island?
The child must usually reside in the proposed home for 6 months before an adoption can be granted. This residence period may be waived for good cause.
