Law Blog!

Prenuptial agreements are extremely enforceable in Rhode Island (RI). A Prenuptial agreement is also commonly called a Premarital Agreement or an Antenuptial agreement. A Prenuptial agreement should be drafted by a Rhode Island Family Law and Divorce attorney / lawyer.

The Rhode Island Supreme Court has made prenuptial agreements extremely difficult to set aside!

Rhode Island General Law 15-17-6 and established Rhode Island Supreme Court decisions create a heavy burden on a person seeking to invalidate a prenuptial agreement in Rhode Island.

R.I.G.L Section 15-17-6 states:

<blockquote>(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) That party did not execute the agreement voluntarily; and

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.

(c) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

(d) An issue of unconscionably of a premarital agreement shall be decided by the court as a matter of law.” </blockquote>

The intent of the statute is to “preserve the validity of such agreements”. In order to invalidate a premarital agreement a person must prove every element of the statute by clear and convincing evidence.

The bottom line is the premarital agreements are extremely difficult to invalidate in rhode Island. There is one potential trap that exists. If the parties change residency and get divorced in a different state, the other state might be hesitant to enforce Rhode Island law. I always insert a paragraph in my prenuptial agreements that Rhode Island law will govern the interpretation and enforceability of the agreement. However, there is no 100 percent assurance that some judge of a different state will follow RI Law.

If a person signs a prenuptial without a lawyer is it enforceable?

Yes. It may be preferable for a person to have a lawyer but it is far from required to make the premarital agreement enforceable.

The experience of the family law court system is brutal and with having to personally experience this one more time, I want to stress to those women who are in the trenches right now, don’t give up, see it to the end, there is relief.

I sat in the court room last week and watched the judge as he calls the cases and I am intrigued more and more, he doesn’t read any of the documents prior to calling the cases on calendar. What is most disturbing is that you will have to explain what is going on and get him up to speed about the case and often, the judge becomes frustrated when the parties are battling it out, especially if there are attorneys involved.

I watch his demeanor with the lawyers and how he interacts with them, which gives me a heads up on his mood. I observe how his hair is styled, which also tells me a lot about if he was running late that morning. I watch and listen very carefully to the parties representing themselves and how he treats them, which gives me another heads up as to how I will go before him to plead my case; under the assumption, that he has reviewed the documents I just filed with his clerk prior to court being called. The judge looks disheveled.  Great!

I continue to listen as the judge goes through his list, anticipating when he will call my case. For me, my heart pounds so fast, it feels as though it will pop right out of my chest. Going to court no matter who you are, provokes anxiety, I even see anxiety on the faces of some of the seasoned lawyers, which makes me laugh. What is really entertaining are the female attorney’s who dress like little old ladies, their hair is frumpy, their shoes are worn and they are very loud, trying to overcompensate with the amount testosterone in the room. Ahh! Family Law attorneys.

Since I’m the plaintiff, I sit on the left hand side of the court room. I never glance to the right of me where my ex-husband sits with his attorney, I can only hear their loud voices, their hope is to try and intimidate me. I have become very wise to the tricks over the past six years and it reminds me of how childish and foolish they appear, I smile to myself and take a deep breath.

The judge just finished with a case and he became agitated as one of the parties’ didn’t like what he had to say and was running out of the court room before the judge excused him. Great, I mutter to myself, watch him call my case next, I am screwed.

Then all of a sudden, “on the XXXX matter, what is this all about?”  I stood up not knowing if I should approach the bench, then the bailiff motioned me over. I placed my file on the table and I said, “good morning your honor as did my ex’s attorney.” The ex and his attorney are standing strong as if they are about to divide and conquer, the ex has this soft voice almost like peter pan and his attorney thinks he is bad to the bone. Ahh! The Victim role. It’s so phony, it makes me want to puke, but nevertheless, I proceed by serving his attorney with my declaration, just like how the pros do it and he never takes his eye off the judge.

I got him!

He was uncomfortable, because he knew I wasn’t fooling around which meant I knew what I was doing.

Let the games commence.

The legal dance is fascinating, almost comical and for some scary. I already learned my lesson with my ex’s previous attorney and wasn’t going to fall prey to that again. The judge says, “This is a restraining order, is that correct?” I spoke up quickly, “yes, your honor.” The judge continues by directing his question to my ex and his attorney by saying, “there’s a criminal case pending in Los Angeles County, is that correct?” The attorney replies, “Yes there is your honor and we need to continue this case, as Mr. XXXX is set to go to trial next month.” I interject by saying, “I don’t want to continue this hearing your honor, I want to deal with this today and I don’t want to have to return one more time for this restraining order.” The attorney interrupts with, “your honor, he didn’t do it, he is innocent, there is no need for this restraining order, the defendant just wants to see his daughter and if she doesn’t want to come back, drop the criminal charges against my client.”

Listening to this, my heart starts to pound harder, oh no I say to myself, and with my reflex, I say, “excuse me your honor; he made criminal threats to kill me, my family and take my daughter away from me. He wants to see his daughter, well he screwed that up himself by disappearing for seven months, then out of the blue, he calls, makes his threats and wants to see his daughter. No! He doesn’t even pay child support, he owes $11,000.00.” “She owes my client, $16,000.00 and refuses to pay it.” The attorney proclaims. “Enough! Commands the judge, I take it your client pleads the fifth today, is that correct?” My ex replies in that peter pan voice, “Yes, I plead the fifth.” Done, the judge states, Ms. XXXX this hearing will be continued until September, the relief you get is that the restraining order will be re-issued and will remain in full force and effect, is that all right with you?” “Yes, your honor.”

What just happened?

The judge did not review the case nor did he review my declaration that I filed with his clerk, if that were the case, the judge would have ruled on the restraining order and it would have been made permanent. The judge clearly did not want to be bothered with it. He was short, unprepared and frustrated. He must have been running late that morning. Instead, the attorney was hoping I would negotiate with him and drop the criminal charges against my ex as he stated above, “If she doesn’t want to come back, have her drop the criminal charges against my client.” It’s a game and if you watch what happens in court with the judge and the attorney’s you become more aware of the legal tactic.

Judges for the most part don’t read the case before them. Judges rely on the attorney’s to make them aware of the status. What happens when the parties are acting in pro se? Then what? It’s the judge’s civil responsibility as an officer of the court to review the case and listen for the facts and then proceed with a ruling. However, that doesn’t happen. I think this is terribly wrong and does not follow judicial protocol.

The judge is to hear both sides, review all documents and based on what was presented before him or her; make a decision based on the facts and the law. I hear about cases that were simply tried inappropriately, mine for one, and I believe those cases should be reviewed and charges of judicial misconduct be brought against those judges who simply refuse to follow the law.

Family Law Reform.

If your case is not handled properly and you feel that you are not being treated fairly, file a complaint. Don’t allow yourself to fall prey to a miscarriage of justice, take a stand and take action.

If you need help, contact Women’s Legal Resource and Survivors In Action, advocates are there to help you.

When in the middle of a divorce, the last thing that most individuals want to consider is the new legal dictionary they must familiarize themselves with. While some understanding of these new legal terms is usually required, family law attorneys in Riverside help individuals or couples get through a divorce as smoothly as possible, with an accurate understanding of the laws that apply. Divorce does not have to be war, and ex couples rarely enjoy coming away from divorce proceedings with loads of animosity and anger. Especially when the couple has children, getting through a divorce as smoothly as possible can be very important.

Family law attorneys in Riverside often help divorcing couples sort out many things beyond dividing their possessions and assets. They are usually called upon to assist the couple in reaching a fair child support and child custody agreement. These attorneys will work to make sure that their client’s rights are protected and that they are not paying too much or receiving too little child support. Reaching a fair agreement is vital to both parties moving forward with their lives. It can also be helpful in creating a more comfortable environment for their children, instead of the hostile environment some children of divorced parents are exposed to.

Parties who are well aware of their rights usually fare much better than those who are not. Family law attorneys in Riverside will assist their client in realizing certain rights that they may not have been aware they were entitled to. For instance, while full legal custody refers to a parent’s sole right and responsibility to make decisions about their children’s education, healthcare, etc., this is usually the case only when one parent is considered unfit to care for their children. Most agreements award joint legal custody to the couple. This means that both parents have a right and responsibility to the aforementioned decisions. Full physical custody does not mean what an average person may think. Full physical custody means only that the children will live primarily with one parent. The non-custodial parent still retains visitation rights and is allowed to see their children.

These are just a few examples of the legal terms that family law attorneys in Riverside work to make their client understand. Most people will be surprised to realize that they have many rights they were not aware of beforehand. Attorneys in this specialty will be able to further explain these rights and assist their clients in securing them during divorce proceedings.

There often comes a time when misunderstandings between two people who tied the nuptial knot rise to a height that they no longer wish to stay together. One needs to be aware of family law to get separated legally. The family law of Florida permits both fault divorce as well as no fault divorce. Divorces can be either contested or uncontested. Contested divorces are those which have disputes on certain issues. Uncontested divorces are those in which both the parties agree on all major issues or one of the parties, fails to take steps to contest the divorce.

To apply for a divorce in Florida, the couple must have stayed in Florida for at least six months before applying for divorce. Uncontested divorces require a marital separation agreement and a short hearing. Contested divorces usually take a long time and are difficult to deal. Filing for divorce needs to be made either in the region where the couple currently resides or in the place where they last stayed together.

Divorce becomes more complicated when the couple has minor children from their marriage and both fight for the custody of the children or child. The decision of the custody is always taken in the welfare of the child. The non custodial parent is responsible to pay for child support to the custodial parent. The percentage of child support to be paid is decided taking into consideration the salary of custodial parent as well as non custodial parent, needs of the child, age of the child, standard of living etc.

According to the family law of Florida, a legal father is responsible for all the rights as well as responsibilities towards the child. The husband of the woman delivering a child becomes a legal father even if the child was born of her relation with some other individual. He will remain as the legal father until the biological father claims for paternity of the child. The court then decides about whether or not to establish paternity of the biological father depending on the best interests of child.

Unmarried parents living together have separate rules for separation. According to Florida law, if the man is not married to the child’s mother during birth, he has no right to claim for custody even if his name appears on the child’s birth certificate. Such men should file for paternity after undergoing a paternity test through DNA testing.

Sometimes domestic violence becomes the cause of divorce. Abusing the spouse is a serious crime and hence can be filed in court. There are a number of criminal defense lawyers to help out.

Although it is better to avoid separation, but when it becomes a must, take proper steps by knowing the laws before hand.

On account of a fundamental rule of inheritance under Muslim law that “a nearer in degree excludes the more remoter” the children of a predeceased son or daughter can not inherit the property of their grandfather or grandmother who is survived by a son or sons. All the schools and sub-schools of Islamic law unanimously accepted this fundamental rule. So it is evident that in the opinion of Islamic jurists the provision of representation in respect of inheritance is absence in Muslim law. As under this principle grandchildren are excluded from inheritance, different Muslim countries of the world attempted to solve this problem by taking various devices.

In Syria and morocco the children of a predeceased son who would be excluded from succession  under sharia  law ,are now entitled to either the share of their father which they would have taken ,had he survived the propositus or one third of the net estate ,whichever is  less .But till now no provision has been made for the children of the deceased ‘s daughter.

In Egypt the children of a predeceased son or daughter is entitled to  the share of their parent which they would have received ,had  he or she survived the propositus ,but within the maximum limit of one third of net estate.

Some Middle Eastern countries have adopted the device of ‘obligatory bequests’. In Libya the will act 1994 introduced obligatory bequest for orphaned grandchildren through predeceased sons. But Bangladesh and Pakistan have accepted the rule of representational succession for the orphaned grandchildren. Section 4 of Muslim family law ordinance1961 provides;

In the event of the death of any son or daughter of the propositus before opening of succession ,the children of such son or daughter ,if any ,living at the time of succession opens ,shall per stirpes receive a share equivalent to the share which such son or daughter ,as the case may be ,would have received if alive.’

According to this section a grandson or granddaughter represents his or her father or mother at the time of death of grandfather or grandmother and inherit what their parent would have inherited if alive, it is called representation. So representation means a more distant relative steps into the shoes of a nearer relative (e.g. a son representing his father) and inherits in an identical manner to the individual he represents. This doctrine of representation has brought in some cases caustic injustice to some heirs of the deceased .For the better understanding the latent injustices in section 4 of MFLO; we can discuss it by giving some examples;

Firstly; a dies leaving behind one daughter and one son’s daughter. So under Islamic law of inheritance daughter gets three-fourths and granddaughter gets one –fourth but according to this ordinance daughter gets one-third and granddaughter gets two-thirds. Only this single injustice upsets the whole community. Here both the heirs are female one is one degree nearer than the other one but nearer gets half of property of remoter. Do you think it is justice?

Secondly; under the ordinance the doctrine is applied only for the descendents of the deceased. It means the entire property which the deceased son would have inherited, if alive, goes to his children, depriving his wife and other relatives. For example; A dies leaving B, a son and D a grandson from predeceased son C and C’ s wife E. Here the property will be divided into two. B gets half and the rest half goes to D. So E is completely deprived .Is it justice?

Thirdly; the propositus dies leaving a daughter of a predeceased son and a full brother. Under MFLO, the entire property goes to son’s daughter and she completely excludes full brother. Is it not injustice?

Fourthly, Son is duty–bound to maintain his father but son’s son is not obliged to maintain his grandfather .So equal distribution among son and grandson is not justice.

Although section 4 of MFLO protected the right of grandchildren yet for the abovementioned injustices to the heirs it should be amended.

References:

A Text Book On Islamic Law– Dr. Muhammed Faiz-ud-din.

Shariah Law and Society– A.M.Siraj uddin.

Principles of Mahomedan Law– D.F. Mulla.

The Muslim Law of India– Tahir Mahmood.