Frequently Asked Questions for Rhode Island Divorce Lawyers


Divorce, custody and other family law issues can be extremely confusing for divorcing spouses and parents. Each divorce attorney in Cranston at Kirshenbaum Law Associates, Inc. is dedicated to helping make the legal process and divorce or custody transition a little easier for you by providing strong, sensitive legal representation. We value client communication and seek to ensure you obtain satisfactory results in your divorce or other family law matter by listening to your input and providing you with the support and answers you need.


At Kirshenbaum Law Associates, Inc., each divorce lawyer in Cranston, Warwick, Providence and throughout Rhode Island strives to help you achieve the successful results that are the root of our reputation as a preeminent divorce law firm in Rhode Island. For answers to your divorce and custody questions, contact a Cranston divorce attorney at Kirshenbaum Law Associates, Inc. online or by calling 401-467-5300 for personalized service.





What happens in my initial conference with my attorney?

Our Cranston divorce attorneys ask for a brief summary of the reasons you are seeking advice. We answer your questions and explain the procedure, including how the law applies to the facts of your case. We also discuss fees, which can vary depending on the issue to be resolved.


What happens after the initial conference?

If you engage our services, we obtain detailed information about your specific problem to enable us to begin work on your case.


Do I really need a lawyer for my divorce or child custody case?

In our opinion, you definitely need a lawyer to obtain the best result in your case, just as you would need a doctor if you were ill. To expedite your case and avoid missteps, we prepare all required documentation to be submitted to the court.


How do I satisfy the residence requirement in order to get divorced in Rhode Island?

To be divorced in Rhode Island, you must have been a continuous resident for a minimum of one year before the case is filed.


If I have not lived here that long, what can I do?

If you have not lived here for at least one year, our Rhode Island divorce lawyers help you file for a separation, which has no minimum residency requirement. Once you have lived in Rhode Island for one year, we must then file a new action for the divorce.

I have been living with my boyfriend for seven years. Am I married?

The number of years that a couple has lived together in Rhode Island has no bearing upon common-law status in the state. A couple is considered to have a common-law marriage in Rhode Island by acknowledging to each other that they are husband and wife, that they hold themselves out to the community as husband and wife and that the community recognizes them to be husband and wife.


Do my spouse and I need to be separated before we can get a divorce?

The answer is both yes and no. If you are still living under the same roof, but not as husband and wife, you are permitted to file for divorce. However, prior to granting your divorce, many judges require you to be physically separated and one spouse moved from the marital domicile.

My spouse and I do not get along. If I leave the house, is it abandonment?

This is a common misconception. You are free to leave the house, and it is not considered abandonment.


If we want a divorce and agree on everything, how do we proceed?

A complaint for divorce, service of process and other required paperwork must be submitted in proper form to the family court. Only then can a court date be obtained. The important thing to realize is that non-lawyers frequently have no knowledge or experience drafting the settlement agreement, the decision pending final judgment and the final judgment itself. If any of these steps or paperwork is missed, you still may be legally married even though you had a divorce hearing. It is always best to be guided in all aspects by a competent Rhode Island divorce attorney even “if you agree on everything.”

I put a wiretap on my spouse’s phone. Can I use that information in court?

In Rhode Island, there are prohibitions against taping telephone conversations where the person taping is not a party to the conversation. Typically, these devices are placed on the home phone and indiscriminately tape all incoming and outgoing calls. Such action is illegal and subjects the person who placed the phone tap to criminal charges and potential civil damages including attorney’s fees and punitive damages. If you are a party to the conversation, Rhode Island has a rule you can tape a call without notification to the other party, provided both parties are located in Rhode Island.


What is mediation, and how does it work?

Both parties must agree on a mediator who is not allowed to give any legal advice. A mediator cannot represent either party in a divorce case. We always recommend that you retain an attorney for your divorce, even in mediation.


What are prenuptial agreements?

Prenuptial agreements are contracts that the parties make before their marriage. The contents of the agreement generally address how the parties want to distribute their assets upon divorce, including setting forth what assets are protected from distribution. The prenuptial agreement may also address issues of spousal support, including a spouse’s agreement not to seek alimony.


What are postnuptial agreements?

Postnuptial agreements, commonly referred to as property settlement agreements or marital settlement agreements, are contracts between husband and wife made after the marriage takes place. In addition to setting forth the parties’ agreements pertaining to a distribution of assets and spousal support, postnuptial agreements may contain provisions concerning the parties’ minor children. However, no judge in the family court is bound to honor any agreements the parties may make concerning their children if the judge finds that the agreements are not in the minor children’s best interests.

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I am originally from another state. My spouse and I have no children and are separating. Can I move back to my home state?

If neither of you has filed a case in the family court in Rhode Island, there is no prohibition against such a move. If you make a permanent move, however, you cannot file for a divorce in Rhode Island because one year of continuous residency is required. If your spouse remains in Rhode Island, he or she can file a case here. In that case, you would be able to countersue in Rhode Island.


I am originally from another state. My spouse and I have children and are separating. Can I move back to my home state with the children?

We strongly recommend seeking the advice of an experienced Rhode Island divorce lawyer before you leave the state. Although you are not prohibited from leaving the state, your spouse could file an action in the family court to require you to return the children. If you become a resident of another state, you cannot begin any proceedings in Rhode Island, but you can countersue any action brought here by your spouse.


Can I move out of Rhode Island with my children now that I am divorced?

If you have no children, there is no prohibition against such a move. If you have children, consent in writing must be obtained by the family court or by the other spouse. When children are involved, caution should be exercised in moving, although you may be permitted to move on a temporary basis. It is likely the Rhode Island Family Court will still have jurisdiction over the case and you will be required to attend hearings in Rhode Island and comply with its orders. It is possible that the family court could compel the children to move back to Rhode Island.


If my spouse and I have joint custody, do we have the children for equal amounts of time?

Joint custody is NOT a description of how much time you spend with the child. It does prevent either party from making major decisions concerning such things as a child’s health, education, welfare or religion without first discussing those issues with the other parent. Examples may include whether your child has elective surgery, goes to a charter school or attends certain religious classes. Our divorce attorneys in Rhode Island can answer your additional custody questions when discussing your case.


Does someone with joint custody have to pay child support?

Yes, a parent with joint custodial rights but not in primary physical possession of the children is required to pay child support.


What is sole custody?

If you have sole custody, you can make every decision for your child, including matters such as your child’s health, education, welfare or religion, without first discussing these major issues with the other parent.


What is shared placement or shared possession of children?

Shared placement and shared possession are used interchangeably. When parents are awarded shared placement, they share the children on an equal or as near equal basis as possible. Awards of shared placement are not frequently made by Rhode Island Family Court judges but can be made by agreement of the parties.


What happens if my children do not want to visit with my spouse?

Because the court considers that a parent’s right to visit with his or her child is a benefit to the child, the court enforces visitation orders so long as the visitation is in the child’s best interest. If the judge, after hearing all testimony, believes that it is not in the best interest of the child to visit with the parent, then the visits are suspended. If a child’s welfare is in jeopardy while visiting with a parent, the judge takes all necessary action to protect the child’s well-being.


How will the judge know what my children are thinking? Will the judge speak to my children?

It is not automatic that the judge will speak to the children. This practice varies from judge to judge — some do, some do not. If the judge speaks to the children, it is in chambers to get as much information as possible to decide what is best for the children. Some judges order the appointment of a guardian ad litem who meets with the children, parents and all other persons who have an important role in the lives of the children, such as teachers, pediatricians and close family members. This information is reported to the judge by the guardian.


Is there a chart or formula for child support?

Rhode Island uses a child support formula called the income shares model. This model determines the level of support a child would receive if the parties had not separated. The chart has dollar values that correspond to the income level of both parents and the number of children in need of support. Once a total amount of child support is calculated, it is compared to the income of each parent to determine the percentage of responsibility. Certain deductions such as additional minor dependents and healthcare costs are taken prior to calculating child support. Modifications such as work-related day care and a cash medical award also are made to the basic support number.

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My father gave me the family business. Do I have to share it with my spouse?

You do not have to share a family business received by inheritance or gift from someone other than your spouse.


I inherited real estate, cash and stocks. Do I have to share these assets?

You do not have to share these assets unless you have put your spouse’s name on them.


Does it matter whose name the assets are in? What happens if they are all in my name?

Any asset acquired during the marriage which is not inherited or received by gift from someone other than the spouse is marital property regardless of the name in which it is held.


What is equitable distribution of marital property?

Equitable distribution is the way in which the court decides to award the marital assets. Equitable distribution does not mean equal distribution but rather is the way the court determines the division to be fair to both parties.


What property is subject to equitable distribution in Rhode Island?

All property acquired during the marriage that is not inherited or received by gift from someone other than the spouse, including appreciation of value of property acquired before the marriage, is subject to equitable distribution.


Is my business or professional practice subject to equitable distribution in Rhode Island?

If your business or professional practice is a “one man shop,” it is not subject to division. Otherwise, the value of the business may be subject to distribution. This is a very complex issue and requires the expert legal advice that we can give you.

Does equitable distribution mean that all marital assets will be evenly divided between the spouses?

Equitable distribution does not mean equal distribution. Rather, it is the way in which the court determines the division to be fair to both parties.


Why do I have to share my pension with my spouse?

Pensions and retirement plans that are acquired or those contributions which are made during the marriage are marital assets. They are part of the marital estate just as homes, automobiles and furniture are when acquired during the marriage. These assets are all divisible.


I’ve heard that Rhode Island is a no-fault state. If my spouse is cheating on me can I only get half of our assets?

No-fault divorce refers to a party being granted a divorce without proving that the other party was guilty of any traditional fault ground for divorce. No-fault does not mean that a spouse who is guilty of adultery or cheating on the other spouse automatically gets half of the marital assets. A judge, after considering all facts required by law to be considered, including adultery, may award the faithful spouse more than half of the marital estate.


I am a stay-at-home mom. I did not contribute to the home expenses or mortgage. Am I entitled to any value in my house?

The fact that you have been a stay-at-home mom does not prevent a judge from awarding you any value in your home. In general, if an asset was acquired during the marriage, it matters little who actually paid the mortgage in dividing the asset. The court considers your job in the home and raising the children just as important as that of your husband who’s earned monies to pay the actual bills.


Do I get more alimony or equitable distribution if my spouse committed adultery or was abusive to me?

Marital misconduct is a very important factor among many factors that a judge must take into consideration when awarding the marital assets. Our divorce attorneys in Rhode Island are successful in maximizing a division of assets when our clients are victims of their spouse’s misconduct. Alimony is based on the financial needs of the party asking for spousal support and the financial ability of the other spouse to pay the support. Whenever the facts of a case indicate a client’s need of spousal support, we will aggressively pursue this claim.

I was ordered to pay alimony that I can no longer afford. What can I do?

We will file a motion on your behalf in the family court to reduce your alimony.


Can a husband be awarded alimony?

Yes, alimony is available to both husbands and wives.


Will alimony end if I remarry?

Generally, alimony ends upon the remarriage of the party receiving the alimony. However, some circumstances do exist where this is not the case.


What can I do if my spouse refuses to pay child support or alimony?

Our divorce lawyers in Rhode Island file a motion to adjudge your spouse or former spouse in contempt for failure to pay. If the court finds that the spouse or former spouse has no good reason for not paying support, the judge takes action to compel payment.


Is there a chart or formula for alimony?

Rhode Island does not have an alimony guideline. Alimony is based upon the need of the person requesting alimony and the ability of the spouse to pay. The law in alimony cases is that alimony is a rehabilitative tool to enable the recipient of the alimony award to become self-sufficient. There are, however, cases that do require awards of lifetime alimony. We advise clients on the difference between the two types of alimony. This is true whether you are paying alimony or hoping to receive it.


Will my spouse pay my attorney’s fees?

Spouses are not usually ordered by the court to pay all or some of the attorney’s fees for the other spouse. However, when the facts of a case show that a spouse is in need of assistance in paying attorney’s fees, we aggressively pursue this award on behalf of our clients.

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