Rhode Island divorce lawyer, David Slepkow authored this informative RI divorce law article explaining what is and is not marital property in a divorce in Providence Family Court.
Marital and non marital property in RI
In Rhode Island, all property and assets acquired by the husband and wife (with certain limited exceptions, some of which are set forth in more detail below) during the course of the marriage constitute marital property subject to equitable division by the Family Court. Nonetheless, inheritance and gifts do not constitute marital property in RI subject to being divided unless the parties co-mingle such property. Co-mingling could cause non marital property to become transmuted to marital property.
A transmutation of non-marital property to marital property could occur if a person puts the other spouse’s name on a bank account or brokerage account or transfers title to real estate via a quit claim deed.
Personal Injury settlements in RI
Personal injury settlements or judgments, in Rhode Island, relating to pain and suffering , disability and certain types of disability pensions are not marital property. However, portions of such injury settlements pertaining to lost wages during the course of the marriage and medical bills expended during the marriage or other similar such damages do in fact constitute marital property subject to equitable division. For a more in depth explanation of whether injury awards are marital property in RI, please see also http://rhodeislanddivorcelawyerarticles.com/are-personal-injury-awards-marital-property-in-a-ri-divorce/
Is premarital property subject to equitable division of assets in Providence Family Court?
Assets and property owned by husband or wife prior to the marriage is not marital property subject to equitable division by a Rhode Island family court judge or General Magistrate.
However, the appreciation in value of that account, real estate or property, is marital property. “In order for the appreciation of value of premarital property to be equitably divided, the appreciation must result from the efforts of the spouse who do did not own the asset prior to the marriage. This provision requiring that the appreciation result from the efforts of the other spouse is often loosely applied in Rhode Island Family Court, especially in marriages of long duration.” See also: http://www.hg.org/article.asp?id=18610
For example, if husband owned investment multi-family real estate before the marriage and the real estate appreciated during the marital union then such appreciation may be divided by a RI Family Court Justice if wife can show her efforts in some way lead to the appreciation in the investment real estate.
Is property divided half to the wife & half to husband in a divorce in Rhode Island?
No, not in every case.
How can fault be relevant in a divorce in Providence Family Court?
Even though Rhode Island and Providence Plantations is considered a no fault state, fault allegations ( if they can be proved) can play a significant role in how the Rhode Island Family Court equitably divides the debts and property of the marriage. The Providence Family Court Judge or General Magistrate must first determine what property constitutes marital property under RI law. Once that is determined, the RI Family Court Justice will analyze numerous factors set forth in R.I.G.L. 15-5-16.1 to establish the division of marital property.
The RI domestic court may review these factors set forth in the law, to determine 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 employ-ability of each of the parties h) The opportunity of each party for future acquisition of capital assets and income. These factors are among other factors in R.I.G.L. 15-5-16.1.
The RI equitable distribution law specifically declares that the RI Family Court may 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 cheated, was emotionally or physically abusive or had substantial drug and alcohol problems.
The court will also look at other negative,antisocial, harmful or deleterious 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.
Can the Providence Family Court defer the sale of the marital home for the best interest of the children?
If husband or wife demands a deferred sale of the former marital domicile, then the Providence Family Court must make findings of fact whether or not it is economically feasible for the spouse who is residing in the real property to pay the mortgage, liens, taxes and insurance on the house until the home is sold at some point in the future. In making its determination of this important issue, the Rhode Island Family Court will examine at the income of the resident parent, any alimony the parent receives, child support and other source of income to make those payments. The purpose of this RI law is to prevent foreclosures, uninsured property, and deterioration of the marital home and to protect the other spouse’s equity in the real estate.
After the Newport Family Court determines that it is “economically feasible” for the parent to remain in the house with the minor children or child in a Rhode Island divorce , the Newport Family Court will decide whether it is in the best interests of the minor child to stay in the house.
The Family Court in Rhode Island will use its discretion in making this determination. For more a more detailed explanation of deferred sale of the former marital domicile please click on this article.
Is the appreciation of a gift or inheritance subject to equitable division by a Providence Family Court Judge?
No. Pursuant to Rhode Island divorce law, appreciation of inheritance or gifts during the course of the marriage is not subject to equitable distribution
“At the time of their divorce, 76 percent of people ages 40 to 79 who divorced later in life had children, the majority of whom were under 18 years old. Although more than a third of those with children (37%) report that their children were supportive, and an additional 17 percent say that their children were “OK” with it, 28 percent recall that their children were somewhat upset, and 18 percent say their children were very upset, about their divorce.” The Divorce Experience A Study of Divorce at Midlife and Beyond Conducted For AARP The Magazine Report by Xenia P. Montenegro, PhD National Member Research, Knowledge Management Survey conducted by Knowledge Networks, Inc. http://assets.aarp.org/rgcenter/general/divorce.pdf
“No one enters into a marriage expecting it to fail. Still, more than 20 percent of first marriages end in divorce within five years, and 48 percent of marriages dissolve by the 20-year mark, according to 2006-2010 data from the government’s National Survey of Family Growth.1 Separation and divorce are emotionally difficult events, but it is possible to have a healthy breakup.” Healthy Divorce http://www.apa.org/helpcenter/healthy-divorce.aspx