Navigating Troubled Waters – Divorce Process and Strategy – From Filing to Trial!
This is the second part of a two-part series on the Rhode Island divorce process, including divorce strategy. The first part covers the initial stages of a divorce, from finding a Rhode Island attorney to filing for divorce. See below for a link to the first part of this series.
This article discusses divorce strategy and the divorce process 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.
Rated or contested track
When a divorce is filed in Rhode Island, the case is placed in one of two tracks, the contested track or the nominal track. The Plaintiff in her initial divorce filing designates the path she desires. The vast majority of divorces filed in Rhode Island are placed on the nominal divorce track. An appointment in the “nominal track” does not necessarily mean that the divorce will not be contested. It usually means that the party who filed the lawsuit believes that the case can be resolved relatively quickly or wants the divorce to be resolved relatively quickly.
Response to divorce petition
The respondent must file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. If the defendant does not answer the case, he is subject to default. A Default is when the Defendant does not respond to the case in a timely manner and the Plaintiff will generally get all the relief that the Plaintiff requests.
Nominal Divorce
If the case is put in the nominal track, then the clerk will automatically set a nominal divorce hearing when the Petitioner files the petition for divorce. Typically, this hearing will be scheduled 65-70 days after the Plaintiff appears. In the event that the divorce is not resolved before the nominal date of divorce, the case will automatically be changed to the contested track.
If the matter is not resolved by the nominal court date and both parties want to try to resolve the remaining issues in court and believe that it is possible to resolve the remaining issues, then the parties may attempt to resolve the case in the hallway or in the conference rooms. in court and file the case as a nominal uncontested divorce on that date.
If the defendant has not filed an answer, it is dangerous for the defendant not to appear in court on the nominal trial date based on representations made by the other party.
There have been many occasions where one spouse has assured the other party that there is no need to appear in court and no need to file an answer and the defendant is left in default and the other spouse gets 100 percent of the property. of marriage.
On the date of the nominal divorce hearing, at the call of the calendar, the case will be nominally ready or the parties will ask the judge to stop the case so they can try to resolve the remaining issues. If the parties are unable to resolve the remaining issues, they will inform the court clerk or judge that the case cannot be resolved and the case track will be changed to the contested divorce track. If the case is moved, there will be no hearing on that date and the court will inform the parties of the next pre-trial conference date.
If the parties ask the clerk to hold the matter, they will usually get a considerable amount of time to negotiate the remaining issues in the hallway. Resolving all remaining family law issues, which may include property division issues, child support, child custody, child visitation, alimony, contempt issues, restraining order issues, etc., the clerk should be informed that the case is now nominally ready. At that time, the clerk and judge will place you back on the list of cases ready for nominal hearing.
Under Rhode Island General Law, a divorce cannot be finalized without a nominal divorce hearing. At the nominal divorce hearing, certain testimony must be obtained in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses testify briefly. If you do not have the required witness, your case could be delayed or even dismissed and you could waste your time going to court.
Most Rhode Island divorce and family law attorneys have conducted these roll call hearings hundreds of times. It is a very bad idea for a person to represent themselves in a divorce! As the old adage goes, a person representing himself has a fool for a lawyer. Since everything you have worked so hard for is at stake, it is foolish to go through the Rhode Island divorce process without a Rhode Island divorce and family law attorney.
If the case was originally placed on the contested tracking calendar, then the clerk did not schedule any automatic nominal court date. If the case is resolved later, the parties may request permission from the clerk to attend the nominal divorce hearing on a certain date. Otherwise, the parties can wait for a motion date or the pre-trial date to hold the nominal divorce hearing.
Discovery in RI Divorce
After filing for divorce, the plaintiff and/or respondent may, at their option, proceed with “discovery.” Discovery in general is the process by which the parties obtain information or admissions from the other party. Discovery is most important and perhaps crucial in a case where a spouse is unaware of the nature and extent of the marital assets and property. Discovery can also be helpful in obtaining documents or other tangible evidence that is needed for a settlement or trial.
Rhode Island’s discovery process can also be used to gain admission 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 document written under oath, he may be committing the crime of perjury.
Additionally, if a judge believes a party is lying under oath, he or she could impose severe penalties and fines, including a referral to the attorney general for prosecution. However, in reality, most lying incidents in family court are not prosecuted as crimes. Many lawyers use the request for admissions or cross examinations to compel the other party to testify under oath whether or not they had an affair and the extent and details related to the affair, cheating or infidelity.
There are several discovery mechanisms that can be used: interrogatories, request for production of documents, request for admission, statements, subpoena duces tecum, subpoenas, etc.
interrogations
Interrogatories are written questions that one party can send to the other party. Each side is allowed up to 32 interrogations. Interrogatories can be helpful in obtaining lists of assets, claims your spouse will make, or other useful information. This requested information can range from child support to spousal infidelity and may include: child custody issues, child visitation, drug and alcohol abuse, gambling, alimony, health insurance issues, real estate, estate planning and trust issues, personal injury claims, domestic violence / restraining orders, criminal records, asset valuation, mental health history and any Rhode Island family law issues.
Questions must be answered within the time frame established by the Rhode Island Domestic Court Rules. Interrogatories are usually partially written and are also reviewed by your husband or wife’s attorney. Therefore, while it is a valuable tool, there are some limitations to the usefulness of the information received.
Application for Admissions
Admission applications, when used appropriately, can be a powerful discovery tool in an RI divorce. Requests for admission are written requests that are usually prepared by the lawyer, to which the other party must respond within a short period of time. If the party does not respond to the request for admission within the corresponding period, the allegation will be deemed admitted.
bowel movements
A plea is when a party, usually through their attorney, can question their spouse under oath in front of a court reporter. In Rhode Island Family Court, one of the parties must obtain permission of the court/permission of the court in order to take a deposition. Motions to take a statement from the other party are almost always granted by Family Court judges. Depositions are powerful but expensive discovery tools. Usually, a deposition is effective because the lawyer can ask the other party questions personally. The lawyer can ask follow-up questions and can ask questions in different ways. This is particularly effective if one party is evasive or uncommunicative. There is very little the other lawyer can do to help their clients answer the questions during a deposition.
Depositions are very expensive because court reporters’ transcripts can cost several hundred dollars. In addition, the deposition attorney may need several hours to prepare for the deposition. Additionally, both attorneys will need to attend the deposition, which could take several hours. Affidavits are often better ways to get information on sensitive topics than interrogations.
Document Production Request
The document production request is a list of requested documents that must be responded to within the applicable time period. I find this discovery tool particularly successful in obtaining documents and records related to: pension plan documents, 401k records, accounts, employment documents, retirement documents, health insurance records, stock accounts, estate planning, bank statements, real estate documents, etc. .
Citation
A Duces Tecum Summons can be very effective in obtaining third party documents such as bank records, stock records, employment and salary records, and other documents.
The third part of this soon-to-be-published three-part series addresses preparing for a divorce trial, the actual divorce trial, and the final judgment entry.