| This article explores the different types of | | | | of approximately 65 days will be set by the |
| uncontested divorce in Rhode Island and explains | | | | Court. The Defendant must be served by the |
| the process of obtaining an uncontested divorce. | | | | constable. If the Defendant lives out of state he |
| Uncontested divorces should be much less | | | | or she can be served by certified mail |
| expensive then contested cases. Article by | | | | Nominal or Contested Track |
| Attorney David Slepkow 401-437-1100. It is a | | | | When a divorce is filed, the case is put onto one |
| bad idea for someone to try to represent | | | | of two tracks, the contested track or the nominal |
| themselves without a Rhode Island lawyer in a | | | | track. The Plaintiff in his or her initial filing |
| divorce or family law matter. | | | | designates the track they desire. The vast |
| The phrase "uncontested divorce" often means | | | | majority of divorces filed are placed on the |
| different things to different people. In my ten | | | | "nominal track". An uncontested divorce should |
| years of experience, I have seen many different | | | | be put onto the nominal track. Designation on |
| types of cases in which people claim that the | | | | the "nominal track" does not necessarily mean |
| divorce is uncontested. | | | | that the divorce will be uncontested. |
| There are three different paradigms that I have | | | | If the case is put on the nominal track then the |
| seen: | | | | clerk will automatically set a nominal divorce |
| 1) No assets and no children | | | | hearing upon the Plaintiff filing. This hearing will |
| This is a true uncontested divorce! The parties | | | | typically be scheduled from 65-70 days after the |
| have no assets, no real estate , no children and | | | | Plaintiff files. In the event that the case is not |
| no joint debt. No property settlement | | | | settled by the nominal divorce date then the case |
| agreement is needed. However, a significant | | | | will automatically be changed to the contested |
| amount of work is still required by the lawyer. | | | | track |
| The parties still must go to court for a nominal | | | | On the date of the nominal hearing, at the call of |
| divorce hearing. However, this type of divorce | | | | the calendar, the case will be either ready nominal |
| takes the least amount of time for an attorney. | | | | or the parties will ask the judge to hold the case |
| Therefore, it should be less expensive. I | | | | so they can try to resolve any remaining issues. |
| believe that attorneys should offer flat a fee | | | | If the parties cannot resolve the remaining issues |
| divorce when there are no assets and no issues | | | | they will inform the Court clerk or the judge that |
| to resolve. | | | | the case cannot be settled and the case track will |
| 2) Property division and / or | | | | be changed to the contested divorce track. If |
| children involved | | | | the case track is changed there will be no hearing |
| In an uncontested divorce, the husband and wife | | | | that date and the court will inform the parties of |
| agree to all or substantially all of the issues | | | | a future conference date. |
| between the parties including if applicable property | | | | A hearing is required under RI law! |
| division, child support, child custody, child visitation, | | | | Pursuant to Rhode Island General Law a divorce |
| alimony, automobile issues, real estate issues, debt | | | | cannot be resolved without a nominal hearing. At |
| issues etc. However, despite the agreements, | | | | the nominal hearing certain testimony must be |
| there may still be details to iron out! The parties | | | | elicited in order for the divorce to be granted. In |
| may need a property settlement agreement | | | | some circumstances, it is necessary to have |
| memorializing their agreements. | | | | witnesses to briefly testify to prove residency. If |
| If there are assets that need to be divided then | | | | you don't have the required witnesses your case |
| the family law lawyer may need to prepare a | | | | could be delayed or even dismissed and you may |
| property settlement agreement, deeds, | | | | waste your time attending court. |
| mortgages, promissory notes, qualified domestic | | | | Residency in RI |
| relation orders (QDRO) etc. For example, if the | | | | Is it necessary to prove compliance with the |
| parties need to divide a retirement account the | | | | residency requirements at the "nominal hearing" in |
| lawyer must prepare a qualified domestic relations | | | | order to obtain an uncontested divorce? Yes! |
| order. | | | | In order to file for divorce you need to have |
| Therefore, the cost of the divorce could vary | | | | been a domiciled inhabitant and resident of Rhode |
| depending on the circumstances. For example if a | | | | Island for one year prior to your filing of the |
| lawyer has to draft a property settlement | | | | complaint. If you have not been a domiciled |
| agreement than he/she will devote more time to | | | | inhabitant and resident of RI for one year prior |
| the case. | | | | to filing your complaint for divorce, you can file |
| What extra work is needed to divide a retirement | | | | based on your husband's / wife's residency for |
| account? | | | | one year prior to the filing. It does not matter if |
| In order to split a retirement account, Individual | | | | you change your residency or move out of town |
| Retirement Account (IRA), pension, 401k, 403b, | | | | the next day so long as you were a resident on |
| defined benefit plan, defined contribution plan or | | | | the date of the filing and for one year prior! |
| stock options, the lawyer must prepare a qualified | | | | (There are exceptions for people in the armed |
| domestic restraining order otherwise known as a | | | | forces (army, navy, air force, marines, military) |
| QDRO so that there are no tax implications for | | | | who are stationed in other states or countries) |
| the parties. That QDRO must be approved by the | | | | Proof of Residency |
| plan administrator for the retirement plan. It also | | | | In order to prove residency, it is sufficient, if both |
| must be entered as an order of the Family | | | | parties appear at the nominal court date and |
| Court as well as sent to the plan administrator for | | | | testify that at least one of the parties was a |
| implementation. | | | | domiciled inhabitant and resident of Rhode Island |
| 3) "Uncontested" divorce which is | | | | for one year prior to the filing of the complaint |
| really "minimally" contested | | | | for divorce. The Family Court will typically waive |
| Some people claim that the divorce is | | | | the requirement for additional witness if both |
| "uncontested" but it is actually minimally contested. | | | | husband and wife attend the nominal court date |
| In this scenario, the parties agree to most | | | | and testify that at least one party had the |
| major issues but have some minor issues to | | | | requisite residency as set forth above. |
| work out. For example, the parties may agree | | | | If only one party attends the nominal court date |
| that there will be reasonable visitation but not | | | | then you need one of the following in order to |
| agree as to the actual dates and times. The | | | | obtain a divorce (a) two additional witnesses in |
| parties may agree to child support or child | | | | court to testify to the one year residency of the |
| custody but not agree to all the particulars. The | | | | Plaintiff or Defendant (b) one witness in court to |
| parties may agree that the marital domicile is to | | | | testify to the one year residency of the Plaintiff |
| be sold as soon as possible by a Licensed realtor | | | | and an affidavit from a different witness attesting |
| but have not agreed on the listing price of the | | | | to the person's residency. (This affidavit form can |
| home or have not agreed how the proceeds | | | | be easily obtained by the clerk of the Rhode |
| from the sale will be divided. | | | | Island Family Court.) |
| This type of case is usually more expensive than | | | | If you do not meet these requirements to prove |
| a true uncontested divorce because the lawyers | | | | residency your case may be dismissed or you |
| will have to get more involved in negotiation and | | | | may be given additional time to obtain the |
| attempting to work out the points of contention. | | | | necessary witnesses or affidavit |
| Furthermore, the Lawyer may need to draft a | | | | What County in the family Court should the case |
| property settlement agreement setting forth in | | | | be filed in? |
| writing issue concerning the marital domicile, | | | | Please note that all the counties in Rhode Island |
| equitable division of property, child custody, child | | | | (Providence, Kent, Newport and Washington |
| support and visitation issues. | | | | County) follow the same general rules and |
| 4) "Uncontested" divorce | | | | procedures. However, each County has different |
| which really is contested | | | | Summons. Make sure that your divorce case is |
| I have seen countless times when a client says | | | | filed in the appropriate County. At least one of |
| that the divorce is uncontested. I then ask them | | | | the parties must reside in the County in order to |
| to explain the agreement. The response is | | | | file in that County. In Some Counties the same |
| sometimes: 'we agree that we will agree'. As we | | | | judge will hear the entire case. |
| all know, the devil can be in the details! An | | | | In Povidence County, the nominal hearing will |
| agreement to agree is not necessarily an | | | | usually be sent to a magistrate. Providence |
| agreement because nothing has been agreed to | | | | County includes East Providence, Providence, |
| except that the parties think that they will agree. | | | | Cranston, Cumberland, Barrington, Bristol and |
| Often people claim that the actual divorce is not | | | | other towns and cities. Kent County includes |
| being contested. Whether or not a person will | | | | Warwick & East Greenwich as well as |
| dispute the obtaining of the actual divorce is | | | | other towns. Newport County includes Newport, |
| immaterial because Rhode Island is a "no fault" | | | | Middletown & Portsmouth. Washington |
| state. If one party wants to terminate the | | | | County includes South Kingstown, Wakefield etc. |
| marriage and meets the residency requirements | | | | Is representing myself "pro se" a good idea? |
| they can obtain a divorce whether or not the | | | | Pro se is a latin word which means a person |
| other party agrees to it or not. | | | | represents themselves. Most Rhode Island divorce |
| Intake process, drafting divorce documents for | | | | and family law attorneys have done these nominal |
| filing and filing | | | | hearing hundreds of times. It is a very bad idea |
| There is typically an intake process in which the | | | | for a person to represent himself or herself in a |
| lawyer gets the basic information so that he or | | | | divorce! As the old adage goes a person who |
| she can properly represent you. The attorney | | | | represents themselves has a fool for a lawyer. |
| typically drafts the documents and you sign | | | | Since everything you have worked so hard for is |
| them in front of him/her or another notary. | | | | on the line it is foolish to go through the divorce |
| These documents include a complaint, DR(6) | | | | process without a family law lawyer. |
| financial statement, statement of children of the | | | | Documentation to finalize process |
| marriage, counseling statement, summons and | | | | After the nominal Court date a Decision Pending |
| automatic divorce order etc. | | | | Entry and Final Judgment must be submitted to |
| It is important that the DR6 form otherwise | | | | the Court and signed by the Judge. Without a final |
| known as financial statement is accurately filled | | | | judgment signed by the judge and entered as an |
| out. | | | | order of the Court, the divorce will not be final |
| After the documents have been signed and | | | | and you will remain married. |
| notarized, the case must be filed. A Court date | | | | |