Rhode Island Child Support Law FAQS - Daycare, Overtime, Modification, College, Termination

1) What if my child's parent works overtime? Will overtime be included in child support?

There is no standard law or rule in Rhode Island regarding whether or not the non-possessory parent's overtime will be used to calculate child support. One Judge in Rhode Island consistently rules that overtime compensation cannot be used to calculate child support.

Other Judges in Rhode Island have different opinions regarding overtime. The Family Court is a court of equity and fairness. Judges in Rhode Island will typically look at whether or not a person consistently works overtime over a substantial period of time. Judges may also look at whether or not overtime is consistently offered to a spouse. If overtime is infrequent or not typically offered Judges may be hesitant to calculate overtime as a factor of child support. In that case, many attorneys argue that a person's income should be calculated using their W2 or gross income for the entire calendar year. By calculating gross income over an entire calendar year even infrequent overtime becomes an element of child support.

Judges may also look at other factors such as the needs and expenses of both parties and any extraordinary expenses for the child. At least one Judge has suggested that the possessory parent get a percentage of the overtime that is worked by the non-possessory parent. Other Judges in Rhode Island believe that overtime should always be a factor in child support. Often the issue of overtime is negotiated by the lawyers prior to any formal ruling by the Judge.

2) My child is about to turn 18 but is still in high school and living at home, can I still get child support?

Under Rhode Island Law, child support should end when a child turns 18 and graduates high school. If the child is still in high school, then child support will continue until the child turns 19.

Child support in Rhode Island automatically continues even after the child turns 18 unless a Motion to terminate child support is filed. If you are a non-possessory parent, your best option is to contact a lawyer to file a Motion to Terminate Child Support approximately 40 days prior to your child turning 18 and graduating high school. This will mean that the motion will be heard on a court date soon after the child turns 18. Please note that the non-possessory parent can still be found in contempt for failure to pay child support even after the child turns 18 if there is no motion granted to terminate the child support. If a child is seriously disabled, child support shall continue until the child turns 21 years old.

3) Can I get my child's father to be ordered to pay for my child's college education?

In Rhode Island the Court has no jurisdiction to order a parent to pay for the college education of his/her child. However, if pursuant to a Property Settlement Agreement or other contract, one party agrees to pay for a child's education, then that agreement may be enforced by a court of law. Therefore, if you seek to have your child's parent pay for your child's college education, then you must negotiate payment of college expenses as part of a global settlement of the divorce or custody agreement or other similar agreement.

4) Who is going to pay for my child's daycare?

The Rhode Island minimum child support guidelines take into account both the importance and expense of daycare. The child support guidelines and worksheet are used to determine the proper amount of child support to be paid by the non-possessory parent. The bottom line is that a party will be ordered to pay approximately the same percentage of the daycare that the party makes in relation to that party's percentage of the combined gross income of both parties.

For example: If the husband makes $100,000.00 and the wife makes $50,000.00 the combined gross income for the parties is $150,000.00. Therefore, the husband makes 66 percent of the income and will be ordered to pay 66 percent of the daycare in addition to child support. (There may be an adjustment to take into account the federal tax credit.) This amount is added onto the minimum Child Support Guidelines amount.

5) How do I modify, increase or terminate child support in Rhode Island?

In Rhode Island child support can only be modified if there is a substantial change of circumstances. In order to get a substantial change of circumstances, the child support amount must be 10 percent more or less than the old child support order. The change in circumstances could result from loss of a job, increase of income of either party, new dependents, loss of overtime, unemployment, a disability, etc.

David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, child support, alimony custody and visitation. David has been practicing for over 9 years and is licensed in Rhode Island, Massachusetts and Federal Court. Please goto http://www.slepkowlaw.com  to contact David Slepkow or to obtain more information. You can also call David Slepkow. 401-437-1100

Rhode Island Divorce - "Post Divorce Do's And Dont's" -Family Law & Child Support by a RI Lawyer

(For your convenience, I have prepared this list of "Post Divorce Do's and Don'ts" which are applicable to Rhode Island divorces. Some may be applicable to your case and many will not be applicable. Please take a few minutes to read this. If you have any questions about this article or need any legal help please contact a Rhode Island divorce attorney)

Do's

Keep accurate records of child support, alimony, or other property settlement payment(s). In the event that there is a dispute as to whether or not you have made payments, accurate records are important for proof of payment.

If you have a property settlement agreement in your case, any changes to the property settlement agreement must be in writing and signed by both parties.

In the event that you do not have a property settlement agreement and there is only a final judgment in your case, changes can only be made by application to the court for a modification of the final judgment based on a substantial change of circumstances.

If visitation of your children is in dispute, keep accurate records of your visitations documenting dates, times, activities and/or confrontations with your ex-spouse.

If your ex-spouse is on "welfare" (afdc benefits) then do not make direct payments to her or him! You must make the payment to the State of Rhode Island. In the event that your ex-spouse is on welfare and you make payments directly to her/him, then these payments will be considered a gift. The State of Rhode Island (RI) will still pursue you for the child support payments, despite the fact that you have made the payments to your ex-spouse directly. This means that you will have to make double payments of child support.

Do not modify the property settlement agreement by an oral agreement. ALL changes to a property settlement agreement must be in writing, signed by both parties.

Do not make cash payments of alimony or child support without a signed receipt from your ex-spouse.

If you make payments directly to your child or buy anything for your child, these payments will be considered gifts to your child and will not be a credit towards child support. Therefore, if you want these types of payments to be considered child support, they must be given directly to your spouse as child support.

If there is a restraining order or no contact order in your case, do not contact your ex-spouse without the restraining order being dismissed. Even if your ex-spouse initiates the communication or invites you over, you could still be arrested for violating the restraining order. Any type of communication is a violation of the restraining order including e-mails, letters, faxes or voice mail messages. Do not rely on your ex-spouse's insistence that a restraining order has been dismissed. You need to verify with the Clerk of the Rhode Island Family Court that the restraining order has been dismissed.

Important Information

If your circumstances change, look into filing a motion to modify alimony, immediately. This only applies if the alimony is modifiable. If there is a property settlement agreement that is incorporated into the final judgment that states that alimony is non modifiable then the alimony is non modifiable. If there is no property settlement in your case and an award of alimony, then the alimony is probably modifiable upon a substantial change in circumstances. A substantial change of circumstances could be a loss of income, loss of a job or a disability etc.

A. Child Support

Child support does not automatically terminate when your child reaches eighteen (18) years of age. Child support will automatically accrue unless a Motion to Terminate Child Support is filed.

If you are the parent with physical placement of your child/children and your income significantly decreases or your ex-spouse's income significantly increases, then you should contact a lawyer to file a Motion to increase your child support payments.

If you are the parent without physical placement of your child and your income decreases significantly or your ex-spouse's income significantly increases, then you should contact a lawyer to file a Motion to lower your child support obligation. If you cannot pay your child support because of a change in circumstances you need to file a motion to modify child support immediately otherwise you can be subjected to a contempt proceeding for failure to pay child support.

David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, child support, custody and visitation. David has been practicing for over 9 years and is licensed in rhode Island , Massachusetts and Federal Court. David is a partner at Slepkow Slepkow and Associates inc. The firm has been in existence for 75 years. You can contact David Slepkow by going to http://www.slepkowlaw.com  and using the convenient contact form or calling him. There is also more helpful information concerning Rhode Island divorce and family law on the website.

Rhode Island Divorce Law FAQS How Long Until It's Over? Residency Requirements & No Fault Divorce

1) How long does it take to get a Rhode Island divorce?

If all issues concerning divorce, child support, child custody, equitable division of assets, alimony, visitation and other issues are resolved between the parties, the earliest possible date for a nominal divorce in Rhode Island (a nominal divorce is a uncontested divorce in which everything is agreed to) is approximately sixty five to seventy days after the plaintiff files a complaint for divorce. Article by David Slepkow (401-437-1100) If the matter is set down as uncontested, then an automatic court date, "the Nominal Divorce Hearing", will be set by the clerk approximately sixty five to seventy days after filing.

In the event that one party does not want to go forward on that seventy day nominal divorce hearing date or if all issues are not resolved between the parties, then the case will not go forward on the nominal date and will be set for additional conferences and potentially the discovery process. The case may eventually culminate with a trial. Contested divorces typically resolve in 6 - 10 months but may take up to a year.

A divorce cannot become final until, at a minimum, ninety days after the parties attend the nominal court hearing. In other words final judgment of divorce in Rhode Island cannot enter until at least 90 days after the nominal divorce hearing. In the event that the parties do not go to court and resolve the matter at the nominal court date, then the divorce could take up to one year or potentially more. It is extremely rare for a divorce to take more then a year.

2) What does a "no fault" divorce mean in Rhode Island?

In some states it is necessary to prove fault grounds in order to obtain a divorce. In Rhode Island, it is not necessary to prove fault grounds in order to obtain an absolute divorce. All you need to do is prove irreconcilable differences in order to get a divorce. Irreconcilable differences can be anything from lack of communication, different goals and aspirations, affairs, domestic violence, arguing, fell out of love or actually anything. In other words, if either party wants to terminate the marriage, then that party can get a divorce in Rhode island so long as the other jurisdictional requirements in Rhode Island are met.

"No fault divorce" does not mean that fault is not significant! Fault can be extremely significant in Rhode Island. If a party can prove that the other party is at fault for the breakup of the marriage, then they can seek a disproportionate share of the marital assets. Fault can also be a factor to determine whether or not a party is entitled to alimony.The following types of behavior could be grounds to obtain more than fifty percent of the marital assets: alcoholism, drug addiction, domestic violence, extramarital affairs (cheating), abusive behavior, gambling, emotional abuse, sexual abuse, financial mismanagement, criminal activity, abandonment, etc.

3) What is the residency requirement to obtain a Rhode Island divorce?

In order to file for divorce in Rhode Island you need to have been a domiciled inhabitant and resident of Rhode Island for one year prior to your filing of the complaint for divorce. If you have not been a domiciled inhabitant and resident of Rhode Island for one year prior to filing your complaint for divorce, you can file based on your husband's / wife's residency in Rhode Island for one year prior to the filing. It does not matter if you change your residency or move out of town the next day so long as you were a resident on the date of the divorce filing and for one year prior!

There are exceptions for people stationed in the military who maintain a residency in Rhode Island. Even if you move the day after filing, you still meet the residency requirements in Rhode Island. If you do not qualify to file for divorce in Rhode Island you should look for an attorney in other states that you might qualify to file a divorce. If you live in Rhode Island, but dont meet the residency requirements to file for divorce, there are other types of actions such as a complaint for separate maintenance without filing for divorce that you may be able to file which would allow you to deal with issues concerning property rights and child custody and support issues.

3a) What are the residency requirements at the nominal divorce hearings in order to obtain a Rhode Island divorce.

-It is sufficient, if both parties appear at the nominal court date and testify that at least one of the parties was a domiciled inhabitant and resident of Rhode Island for one year prior to the filing of the complaint for divorce. The Family Court will typically waive the requirement for additional witness if both husband and wife attend the nominal court date and testify that at least one party had the requisite residency as set forth above.

-If only one party attends the nominal court date then you need one of the following in order to obtain a divorce in Rhode Island (a) two additional witnesses in court to testify to the one year residency of the Plaintiff or Defendant (b) one witness in court to testify to the one year residency of the Plaintiff and an affidavit from a different witness attesting to the person's residency. (This affidavit form can be easily obtained by the clerk of the Rhode Island Family Court.)

If you do not meet these requirements to prove residency in Rhode Island your divorce case may be dismissed or you may be given additional time to obtain the necessary witnesses or affidavit.

4) In Rhode Island family law, does it make a difference who files the divorce first?

It should make no difference which spouse files the divorce when the Family Court determines equitable division of the assets, child support, child custody, visitation, child custody, alimony, etc. However, in the event that a no contact order, restraining order or emergency motion is needed or filed, which party files first can be extremely significant! This is especially true if there is an emergency motion concerning child custody and/or child visitation concerning a child.

David Slepkow is a Rhode Island divorce lawyer concentrating in family law, child support, custody and visitation. David has been practicing for over 9 years and is licensed in Rhode Island, Massachusetts and Federal Court. David is a partner at Slepkow Slepkow & Associates Inc. Slepkow Slepkow & Associates inc is celebrating its 75th anniversary this years. Please goto http://www.slepkowlaw.com  to contact David Slepkow or to obtain more information.

Rhode Island Divorce Law- Equitable Division Assets By a Rhode Island Divorce Lawyer

1. What assets are marital property under Rhode Island law (RI) subject to being divided by the court in a divorce?

In Rhode Island, all assets acquired by the parties (with limited exceptions as set forth below) during the course of the marriage constitute marital property subject to equitable division by the Family Court. However, gifts and inheritances are not marital property subject to being divided unless the parties co-mingle the assets. A co-mingling could occur if a person puts the other spouse’s name on an account or puts the other spouse’s name on the deed to real estate.

The appreciation in value of gifts or inheritance during the course of the marriage does not constitute marital property. There are also other assets that although obtained during the course of the marriage do not constitute marital assets, such as personal injury settlement relating to pain and suffering and certain types of disability pensions. Please note that personal injury settlements pertaining to lost wages or other similar such damages do in fact constitute marital property.

Property acquired prior to the date of the marriage is not marital property. However, the appreciation in value of that account, real estate or property, is marital property. For example, if husband had an IRA account with $20,000 on the date of the marriage and the IRA account increased during the course of the marriage, the portion of the increase in value of the IRA would be marital property.

2. Because Rhode Island is a no fault state, does that mean the assets are always divided 50% to the wife and 50% to the husband in a divorce?

No. A no fault divorce in Rhode Island simply means that a fault grounds is not necessary in order to obtain a divorce in Rhode Island. In other words, all the parties have to prove to obtain a divorce in Rhode Island is irreconcilable differences that led to the breakdown of the marriage. However, the parties are free to allege other various fault grounds as a cause of the break up of the marriage.

3. How does fault affect a Rhode Island (RI) divorce?

Even though Rhode Island is a no fault state, fault can play a very important role in how the court equitably divides the assets and debts of the parties. After the family court has determined what assets are in fact marital assets, then the court will look at various factors to determine the equitable division of assets. The court may consider the following factors in determining equitable assignment of the property.

a) The length 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;

- Source: R.I.G.L. 15-5-16.1 (Rhode Island General Laws)

among other factors which are set forth in R.I.G.L. 15-5-16.1. That statute specifically states that the court can consider any factor which the court so expressly finds to be just and proper.

Please note that in many cases the parties decide to divide the property 50% to the wife and 50% to the husband. One of the most important factors the judge will look at in granting the husband or wife a disproportionate share of the marital assets is if the other party had an affair, was emotionally or physically abusive or had substantial drug and alcohol problems. The court will also look at other negative conduct in awarding a disproportionate share of the marital assets. It is not uncommon for a judge to award a 60/40 or 55/45 distribution if the court finds that one party had an extra marital affair and that affair led to the breakdown of the marriage.

4. Can the Rhode Island Family Court defer a sale of the marital home for the child/children?

If one of the parties requests a deferred sale of the home, then the court must determine whether or not it is economically feasible for the person who is living in the home to pay the mortgage, liens, taxes and insurance on the home until the home is sold. In making that determination the court will look at the income of the resident parent, any alimony the parent receives, child support and other source of income to make those payments. The intent of this law is to prevent foreclosures, uninsured property, and deterioration of the marital home and to protect the parents’ equity in the house. R.I.G.L. 15-5-16

After the court determines that it is “economically feasible” for the parent to remain in the house with the minor child, the court will consider whether it is in the best interests of the minor child or children to live in the house. The court will use its discretion in making this determination.

In most cases where there are children and the custodial parent can afford the marital home, the court will exercise its discretion and allow the children to remain in the house for a period of time, which may be until the youngest turns 18 years old and graduates from high school.

In the event that the court defers the sale of the house, the court will usually determine the equity in the house. The court will determine the equitable share of the person leaving the marital domicile. In many cases, if the parties cannot agree to the fair market value of the real estate then the parties will need to hire real estate appraisers. The court will hear testimony from the appraisers and determine the fair market value of the home. In some cases the parties agree to use the same real estate appraiser. Please note that in the vast majority of cases, these matters are settled out of court prior to any trial or hearing.

After the period of deferment the house must be sold and the parent who is out of the house will be paid his or her equitable share at that time. The court will usually order a mortgage to protect the person who is owed money for their equitable share. The court may also award interest on the mortgage. If the court orders a deferred sale of the house, it can be modified or terminated at the discretion of the court. If the party living in the house with the children remarries or there is a substantial change of circumstances in the economic status of the person living in the house, then the property may be ordered sold.

In many cases when the custodial parent can afford an increased mortagage payment, the parties will settle with the custodial parent refinancing and buying out the noncustodial parents equitable share of the equity in the house. At that refinance the non custodial parent receives cash and typically deeds over his/her interest in the house to the custodial parent.

Please call me or use my convenient contact for at my website if you have further question or need any help.

David Slepkow is a Rhode Island attorney / lawyer concentrating in divorce, family law, personal injury, automobile accidents, child support, child custody and visitation. He is a partner at Slepkow Slepkow & Associates, Inc in East Providence RI. He is a member of the Rhode Island Bar, Massachusetts Bar and the federal Bar for the First Circuit District of Rhode Island. David Slepkow has been practicing for ten years and is a member of the Rhode Island Family court Inns Of Court. Please go to http://www.slepkowlaw.com

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