This is part two of a two part series on the Rhode Island divorce course of action including divorce strategy. Part one, pertians to the initial stages of a divorce from finding a Rhode Island Attorney to filing for divorce. Please see below for a link to part one of this series.
This article discusses divorce strategy and the divorce course of action after filing for divorce. This article is for informational purposes only and does not constitute legal advice. It is a very bad idea for a person to represent themselves in a Rhode Island divorce without a lawyer.
moderate or Contested Track
When a Rhode Island divorce is filed, the case is put onto one of two tracks, the contested track or the moderate track. The Plaintiff in their initial divorce filing designates the track they desire. The great majority of divorces filed in Rhode Island are placed on the moderate divorce track. A designation on the “moderate track” does not necessarily average that the divorce will be uncontested. It usually method that the party who filed believes that the case can be settled comparatively quickly or wants the divorce to be settled comparatively quickly.
Answer to Divorce Complaint
The defendant must file an answer to the divorce within 20 days of service and absolutely no later than the moderate court date or any motion date. If the Defendant does not answer the case he is unprotected to being defaulted. A default is when the defendant does not answer the case on a timely basis and the Plaintiff will usually get all of the relief that he or she requests.
If the case is put on the moderate track then the clerk will automatically set a moderate divorce hearing upon the Plaintiff filing for divorce. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the divorce is not settled by the moderate divorce date then the case will automatically be changed to the contested track.
If the matter is not settled by the moderate court date and both parties want to try to resolve the remaining issues in court and believe it is possible to resolve the remaining issues, then the parties can attempt to settle the case in the hallway or conference rooms in the courthouse and put the case by as a moderate uncontested divorce on that date.
If the defendant has not filed an answer, it is dangerous for the defendant to not appear in court at the moderate court date based on representations made by the other party.
There have been many occasions when a souse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the defendant is defaulted and the other spouse gets 100 percent of the assets of the marriage.
On the date of the moderate divorce hearing, at the call of the calendar, the case will be either ready moderate or the parties will ask the estimate to keep up the case so they can try to resolve the remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the estimate that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of the next pretrial conference date.
If the parties ask the clerk to keep up the matter they will usually get a substantial amount of time to negotiate the remaining issues in the hallway. Upon settling all the remaining family law issues which may include issues of character division, child sustain, child custody, child visitation, alimony, contempt issues, restraining order issues etc the clerk should be informed that the case is now ready moderate. At that point the clerk and estimate will put you back on the list of situations ready for the moderate hearing.
Pursuant to Rhode Island General Law a divorce cannot be resolved without a moderate divorce hearing. At the moderate divorce hearing certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify. If you don’t have the required observe your case could be delayed or already dismissed and you may waste your time attending court.
Most Rhode Island divorce and family law attorneys have done these moderate hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go by the Rhode Island divorce course of action without Rhode Island divorce and family law lawyer.
If the case was originally placed on the contested track calendar, then the clerk did not schedule any automatic moderate court date. If the case later becomes settled then the parties can ask the clerk for permission to come on a particular date for the moderate divorce hearing. Otherwise the parties can wait for a motion date or the pretrial date to do the moderate divorce hearing.
Discovery in RI Divorce
After the divorce is filed the Plaintiff and or the defendant can at their option proceed with “discovery”. Discovery in general is the time of action by which the parties get information or admissions from the other party. Discovery is most important and perhaps crucial in a case when a spouse is unaware of the character and extent of the marital character and estate. Discovery can be also useful to acquire documents or other tangible evidence that is needed for settlement or trial.
The Rhode Island discovery course of action also can be used to acquire admissions of certain allegations. While it is unethical and perhaps immoral for a person to lie about cheating or an affair to their spouse it is not illegal or criminal for a person to lie to their spouse about an affair. If a person lies under oath either in testimony or in a written document under oath they may be committing the crime of perjury.
Also if a estimate believes a party is lying under oath there could be stiff sanctions and penalties including a referral to the attorney general for prosecution. However, in reality, most incidents of lying in family court are not prosecuted as crimes. Many attorneys use request for admissions or interrogatories to force the other party to state under oath whether or not they had an affair and the extent and details concerning the additional-marital affair / cheating/ infidelity.
There are several discover mechanisms that can be used: interrogatories, request for production of documents, request for admissions, depositions, subpoena duces tecum, subpoenas etc.
Interrogatories are written questions that a party may sends to the other party. Each side is allowed up to 32 interrogatories. Interrogatories can be helpful in obtaining lists of assets, allegations that will be made by your spouse or other useful information. This information requested can run the gamut from child sustain to marital infidelity and may include: child custody issues, child visitation, drug and alcohol abuse, gambling addiction, alimony, health insurance issues, real estate issues, estate planning and trust issues, personal injury claims, domestic violence / restraining orders, criminal history, valuation of assets, mental health history and any Rhode Island family law issues.
Interragaoties must be answered in the time frame set by the Rhode island domestic Court Rules. Interrogatories are usually slightly written and also reviewed by your husband or wifes’ lawyer. consequently, while a valuable tool there are some limitations to the usefulness of the information received.
Request for Admissions
Requests for admissions when used appropriately can be a powerful discovery tool in a RI divorce. Request for admissions are written requests usually prepared by the attorney, which the other party must reply within a short period of time. If the party does not reply to the request for admissions within the applicable time the allegation will be deemed admitted.
A Deposition is when a party usually by their lawyer can ask their spouse questions under oath in front of a court reporter. In Rhode Island family Court, a party must acquire leave of court / permission from the court in order to take a deposition. Motions to take deposition of the other party are almost always granted by Family Court Judges. Depositions are powerful in addition expensive discovery tools. A deposition usually is effective because the attorney can ask the other party questions confront to confront. The attorney can ask follow up questions and can ask questions in different ways. This is particularly effective if a party is being evasive or less than forthcoming. There is very little the other attorney can do to help their clients answer the questions during a deposition.
Depositions are very expensive because the Court reporters transcript could cost several hundred dollars. Also the attorney doing the deposition will need perhaps several hours to prepare for the deposition. Also both attorneys will need to attend the deposition, which could take up to several hours. Depositions are usually better ways to get information about sensitive topics then interrogatories.
Request for Production of Documents
Request for production of documents is a list of requested documents that must be responded to within the applicable time period. I find this discovery tool to be particularly successful in obtaining documents and records concerning: pension plan documents, 401k records, retirement accounts, employment documents, wage documents, health insurance records, stock accounts, estate planning documents, bank statements, real estate documents etc.
A Subpoena Duces Tecum can be very effective in obtaining documents from third parties such as bank records, stock records, employment and wage records and other documents.
The third part of this three part series which is coming soon addresses preparing for a Divorce trial to the actual divorce trial to the entry of Final Judgment