Rhode Island Divorce Procedures

Rhode Island Divorce Procedures

Complete overview of Rhode Island divorce laws for people considering a Rhode Island divorce or filing a Rhode Island divorce with issues to be resolved about child custody, child support, visitation and alimony.

Rhode Island Divorce Residency Requirements

In order to file your Complaint for Divorce in Rhode Island, you must make sure the Family Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Rhode Island residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

No complaint for divorce from the bond of marriage shall be granted unless the plaintiff has been a domiciled inhabitant of this state and has resided in this state for a period of one year next before the filing of the complaint.

The divorce would be filed in the county in which the plaintiff resides or in the county in which the defendant resides if he or she meets the 1 years residency requirement. (General Laws of Rhode Island – Title 15 , Chapter 15-5-12).

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Rhode Island. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the Rhode Island residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Rhode Island Grounds for Divorce

The Complaint for Divorce is the initial document filed with the Rhode Island court. It is in this document that the filing will request the court to terminate the marriage under certain specified grounds.

A divorce shall be decreed by the court on the following grounds.

No-Fault Based Grounds:
(1) Irreconcilable differences which have caused the breakdown of the marriage. (2) Living separate and apart without cohabitation for at least 3 years.

Fault Based Grounds:
(1) Impotency; (2) Adultery; (3) Extreme cruelty; (4) Willful desertion for 5 years or for a shorter period if the court believes it is a valid amount of time to terminate a marriage. (5) Continued drunkenness; (6) Drug abuse; (7) Neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and (8) Any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant. (General Laws of Rhode Island – Title 15 , Chapters 15-5-2 15-5-3, 15-5-3.1 1505-5).

Every divorce case that is filed in the state of Rhode Island must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Rhode Island Uncontested Divorce

This information is an overview of the uncontested Rhode Island divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Rhode Island.

To file for a divorce in Rhode Island, either the husband or the wife must be a resident of the state for a year before filing, which may be done in the county of residence of the Plaintiff unless the residency requirement has been satisfied in the Defendant’s residence.

Grounds for divorce are No-Fault, which are 1) irreconcilable differences causing an irremediable breakdown in the marriage or 2) living separate and apart without cohabitation for three years. General grounds are 1) impotence, 2) adultery, 3) abandonment and presumed dead, 4) alcoholism and/or drug addiction, 5) willful desertion for five years (or less, at the discretion of the court, 6) cruel and inhuman treatment, 7) bigamy, and gross neglect.

Actions are filed in the Family Court.

The person filling the action is called the Plaintiff; the party responding is called the Defendant.

In all divorce actions, a court hearing is required. In all actions, an official Financial Statement must be filed. In addition in actions involving minor children, an official Child Support Guidelines form must be used.

Here are some of the forms that must be filed for a divorce:

a)  a Complaint for Divorce, which identifies the parties, states the ground, and starts the action;

b)  a Verification, which certifies the accuracy and truth of the Complaint;

c)  a Marital Settlement Agreement, which states the terms and conditions of the division and distribution of the marital estate;

d)  a Schedule for Visitation for Minor Children, which establishes the visitation schedule when there are minor children;

e)  Child Support Guidelines, Worksheet and Income Table, which deal with the support of minor children, if applicable;

f)  a Declaration Under the Uniform Child Custody Jurisdiction Act (UCCJA), which establishes the custody of minor children, if applicable;

g)  an Entry of Appearance and Waiver of Service, by which the Respondent enters an appearance in the action and waives service of process;

h)  a Notice of Hearing, which puts the Respondent on notice that a hearing in the action will be held;

i)  Final Judgment of Divorce, which ends the marriage when the court signs the Decree.

Rhode Island Simplified Divorce Procedures

A court hearing will be required in all divorce cases. An official Financial Statement must be filed in all divorce cases. In addition, an official Child Support Guidelines form must be filed in all cases involving minor children. Official sample forms are available for use in preparing the Complaint for Divorce and other documents are found in Rhode Island Rules of Procedure for Domestic Relations, Appendix of Forms. [Rhode Island Rules of Procedure for Domestic Relations; Appendix of Forms].

Each state has its own unique filing procedure. When filing for divorce in Rhode Island, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Rhode Island Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Rhode Island Laws and the filing requirements.

Rhode Island Property Division Factors

In Rhode Island, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Family Court within the Final Judgment of Divorce.

Rhode Island is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Family Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.

The following will be considered by the court when making a property award: (A) The duration of the marriage; (B) The conduct of the parties during the marriage; (C) The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates; (D) The contribution and services of either party as a homemaker; (E) The health and age of the parties; (F) The amount and sources of income of each of the parties; (G) The occupation and employability of each of the parties; (H) The opportunity of each party for future acquisition of capital assets and income; (I) The contribution by one party to the education, training, licensure, business, or increased earning power of the other; (J) 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; (K) Either party’s wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and (L) Any factor which the court shall expressly find to be just and proper. (General Laws of Rhode Island – Title 15 , Chapter 15-5-16.1).

Since Rhode Island is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Rhode Island Spousal Support/Maintenance/Alimony Factors

In Rhode Island the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Family Court will order support from one spouse to the other on a case-by-case basis as follows:

The amount and duration of alimony will be determined by the court by examining the following economic factors: (1) The duration of the marriage; (2) Any marital misconduct; (3) The health condition, age, station, occupation, amount and source of income, job skills, and employability of the parties; and (4) The state and the liabilities and needs of each of the parties. (5) Whether or not a party is capable of being self-supporting; (6) The extent to which a party was absent from employment while fulfilling homemaking responsibilities, and the extent to which any education, skills, or experience of that party have become outmoded and his or her earning capacity diminished; (7) The time and expense required for the supported spouse to acquire the appropriate education or training to develop marketable skills and find appropriate employment; (8) The probability, given a party’s age and skills, of completing education or training and becoming self-supporting; (9) The standard of living while married; (10) The opportunity of either party for future acquisition of capital assets and income; (11) The ability to pay of the supporting spouse, taking into account the supporting spouse’s earning capacity, earned and unearned income, assets, debts, and standard of living; (12) Any other factor which the court expressly finds to be just and proper. (General Laws of Rhode Island – Title 15 , Chapter 15-5-16).

Rhode Island Child Custody Factors

In Rhode Island, after making a custody decision that is in the best interest of the children, the court shall provide for the reasonable right of visitation by the natural parent not having custody of the children, except upon the showing of cause why the right should not be granted. The court shall mandate compliance with its order by both the custodial parent and the children. In the event of noncompliance, the noncustodial parent may file a motion for contempt in family court. Upon a finding by the court that its order for visitation has not been complied with, the court shall exercise its discretion in providing a remedy, and define the noncustodial parent’s visitation in detail. However, if a second finding of noncompliance by the court is made, the court shall consider this to be grounds for a change of custody to the noncustodial parent.

In Rhode Island, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Rhode Island Child Support Factors

Either parent may be ordered to provide child support, after a consideration of the following factors: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional conditions and educational needs of the child; (4) the needs of the noncustodial parent; (5) the financial resources of both the noncustodial and the custodial parent; and (6) any other factors. Family Court child support guidelines have been adopted. In order to guarantee child support payments, the court may require: (1) income or property assignments; (2) posting of bond; or (3) wage withholding. There is an official Child Support Guidelines Form which must be filed in cases involving minor children. [General Laws of Rhode Island; Title 15, Chapters 15-5-16.1, 15-5-16.2, 15-5-16.6, 15-5-22, and 15-9-1 and Rhode Island Rules of Procedure for Domestic Relations; Appendix of Forms].

Rhode Island child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Rhode Island child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Rhode Island child support deviation factors that may be applicable to the situation.

Rhode Island Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted if the court finds that it is in the best interest of the child for the grandparent to be given visitation, that the grandparent is a fit and proper person to have visitation, that the grandparent has repeatedly attempted to visit the grandchild during the twelve months immediately preceding the filing of the application and was not allowed to visit as a direct result of the actions of either or both of the parents, that there is no other way the grandparent is able to visit the child, and that the grandparent by clear and convincing evidence has successfully rebutted the presumption that the parent’s decision to refuse the grandparent visitation was reasonable. Visitation may also be granted if the grandparent’s child is deceased or if the child’s parents are divorced. G.L.R.I. §15-5-24.1 et seq.

When Adoption Occurs: Adoption terminates all rights.

Child Custody Statutes: Best interest of child. No statutory factors. G.L.R.I. §15-5-16 et seq.

Parents May Choose: Yes

Rhode Island Military Divorce Laws

A Rhode Island military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Rhode Island Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Rhode Island court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Rhode Island court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in Rhode Island
- You or your spouse must be stationed in Rhode Island

Grounds for Rhode Island Military Divorce

The grounds for a military divorce in Rhode Island are the same as a civilian divorce.

Dividing the Property

Along with the normal Rhode Island property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Rhode Island, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Rhode Island child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Rhode Island Child Support Guidelines

The Rhode Island child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Rhode Island child support order.

Rhode Island Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: NO
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES

* The Income Shares Model: Rhode Island child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the Rhode Island child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

Rhode Island Child Support Definitions

At the Courts Discretion the following Optional Adjustments can be made to the monthly gross income of each parent.

1. A deduction for payments to a pension or retirement plan.

2. A deduction for life insurance premium payments.

3. A deduction for parents extraordinary medical expenses.

4. A deduction for income tax exemptions adjustment.

5. A deduction for payments of assigned marital debt.

Child Support – General Provisions

In a proceeding for divorce, divorce from bed and board, a miscellaneous petition without the filing of divorce proceedings, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted by an administrative order of the family court. If, after calculating support based upon court established formula and guidelines, the court, in its discretion, finds the order would be inequitable to the child or either parent, the court shall make findings of fact and shall order either or both parents owing a duty of support to pay an amount reasonable or necessary for the child’s support after considering all relevant factors including, but not limited to:

(1) The financial resources of the child;
(2) The financial resources of the custodial parent;
(3) The standard of living the child would have enjoyed had the marriage not been dissolved;
(4) The physical and emotional condition of the child and his educational needs; and
(5) The financial resources and needs of the non-custodial parent.

The court may, if in its discretion it deems it necessary or advisable, order child support and education costs for children attending high school at the time of their eighteenth birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth (19th) birthday. In addition, the court may order child support to continue, in the case of a child with a severe physical or mental impairment, until the twenty-first (21st) birthday of the child.

Any order for child support issued by the family court shall contain a provision requiring either or both parents owing a duty of support to a child to obtain health insurance coverage for the child when coverage is available to the parent or parents through their employment without cost or at a reasonable cost.

Child Support Guidelines – General Provisions

In fixing the amount of support or reimbursement which the parents shall be ordered to pay, the court shall take into account the following factors:

(1) All earnings, income, and resources of the parent including real and personal property;
(2) The earnings potential of the parent;
(3) The reasonable necessities of the parent;
(4) The needs of the child for whom support is sought;
(5) The reasonable expenditures of the custodial agency for the support and maintenance of the child;
(6) The existence and needs of other dependents of the parent;
(7) Any other factors which bear upon the needs of the child and the ability of the parent to provide financial support for those needs.

Definition of Gross Income:

Gross Income includes , but is not limited to, income from salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, alimony or maintenance received, self-employment or business income including rents and royalties (defined as gross receipts minus ordinary and necessary expenses), expense reimbursements or in kind payments received in the course of employment such a s a company car, free housing or reimbursed meetings (if they are significant and reduce personal living expenses, and all other forms of earned or unearned income.

Specifically excluded from gross income are benefits received from means-tested public assistance programs, including but not limited to, Aid to Families with Dependent Children (AFDC), Supplemental Security Income (SSI), Food Stamps, and General Public Assistance.

Rhode Island Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Rhode Island Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
State of Rhode Island and Providence Plantations, Family Court, __________ Division

The proper name of the court in which a Divorce is filed in the state of Rhode Island. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the Rhode Island Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Judgment of Divorce

The title and name of the legal document that will finalize the Rhode Island Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

Legal separation (or divorce from bed and board) may be granted for the same grounds as that required for a divorce. The spouse seeking legal separation must have been a resident for a period of time that the court deems proper. [General Laws of Rhode Island; Title 15, Chapters 15-5-1, 15-5-2, 15-5-3, 15-5-5, and 15-5-9 and Rhode Island Case Law].

Property Distribution:
Equitable Distribution

The applicable Rhode Island law that will dictate how property and debt is to be divided upon Divorce.

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