Divorce – State FAQ – Rhode Island
Residency requirements, venue and procedures
Q: How long must I have lived in Rhode Island prior to filing for divorce in a Rhode Island court?
A: No complaint for divorce from the bond of marriage shall be granted unless the plaintiff has been a domiciled inhabitant of Rhode Island and has resided in Rhode Island for a period of one year next before the filing of the complaint; provided, that if the defendant has been a domiciled inhabitant of this state and has resided in this state for the period of one year next before the filing of the complaint, and is actually served with process, the previous requirement as to domicile and residence on the part of the plaintiff is deemed to have been satisfied and fulfilled.
These are the basic requirements, though there are other details for rare situations. Please see the divorce information section of the Rhode Island Divorce Main Page.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Rhode Island, proper venue for the divorce action is the Family Court. All complaints for divorce from the bond of marriage shall be filed in the county in which the plaintiff is residing unless the complaint is based upon the residence of the defendant, in which case the complaint shall be filed in Providence County or in the county in which the defendant resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: Yes. No petition for divorce shall be in order for hearing until after the expiration of sixty (60) days after the filing of the petition, unless sooner ordered, ex parte, by a justice of the family court. During this period the family counseling service may investigate the circumstances at the discretion of the court, or at the request of either party, counsel the parties, and make recommendations to the court and the parties.
Q: Do the courts of Rhode Island have an option of legal separation, rather than an absolute divorce?
A: Yes. The courts of Rhode Island may grant a legal separation, as well as separate maintenance and custody. However, a legally separated couple may not remarry until the death of one of the parties occurs.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Rhode Island. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Rhode Island?
A: The Rhode Island Code § 15-5-1, § 15-5-2, and § 15-5-3.1 describe the permissible grounds for divorce in Rhode Island as follows:
1. “Civil death” or presumption of death;
4. Extreme cruelty;
5. Willful desertion for five (5) years of either of the parties, or for willful desertion for a shorter period of time in the discretion of the court;
6. For continued drunkenness;
7. For the habitual, excessive, and intemperate use of opium, morphine, or chloral;
8. For neglect and refusal, for the period of at least one year next before the filing of the petition, on the part of the husband to provide necessaries for the subsistence of his wife, the husband being of sufficient ability; and
9. For any other gross misbehavior and wickedness, in either of the parties, repugnant to and in violation of the marriage covenant.
10. Irreconcilable differences (“No-Fault”)
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: In granting any petition for divorce the family court may order either of the parties to pay alimony or counsel fees or both to the other. In determining the amount of alimony or counsel fees, if any, to be paid, the court after hearing the witnesses, if any, of each party, shall consider the factors listed and discussed in the divorce information section of the Rhode Island Divorce Main Page.
Q: On what basis does the court decide how marital property is divided?
A: In addition to or in lieu of an order to pay spousal support made pursuant to a complaint for divorce, the court may assign to either the husband or wife a portion of the estate of the other. In determining the nature and value of the property, if any, to be assigned, the court after hearing the witnesses, if any, of each party shall consider the following:
1. The length of the marriage;
2. The conduct of the parties during the marriage;
3. The contribution of each of the parties during the marriage in the acquisition, preservation, or appreciation in value of their respective estates;
4. The contribution and services of either party as a homemaker;
5. The health and age of the parties;
6. The amount and sources of income of each of the parties;
7. The occupation and employability of each of the parties;
8. The opportunity of each party for future acquisition of capital assets and income;
9. The contribution by one party to the education,training, licensure, business, or increased earning power of the other;
10. The need of the custodial parent to occupy or own the marital residence and to use or own its household effects, taking into account the best interests of the children of the marriage;
11. Either party’s wasteful dissipation of assets or any transfer or encumbrance of assets made in contemplation of divorce without fair consideration; and
12. Any factor which the court shall expressly find to be just and proper.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents be granted visitation rights?
A: Yes. Grandparents can be granted visitation rights if it is within the best interest of the child.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: In regulating the custody of the children the court shall provide for the reasonable right of visitation by the natural parent not having custody of the children except upon the showing of cause why the right should not be granted. The court shall mandate compliance with its order by both the custodial parent and the children.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The court shall order either or both parents owing a duty of support to a child to pay an amount based upon a formula and guidelines adopted by an administrative order of the family court. If, after calculating support based upon court established formula and guidelines, the court, in its discretion, finds the order would be inequitable to the child or either parent, the court shall make findings of fact and shall order either or both parents owing a duty of support to pay an amount reasonable or necessary for the child’s support after considering all relevant factors including, but not limited to:
1. The financial resources of the child;
2. The financial resources of the custodial parent;
3. The standard of living the child would have enjoyed had the marriage not been dissolved;
4. The physical and emotional condition of the child and his or her educational needs; and
5. The financial resources and needs of the non custodial parent.
Q: When does the duty to pay child support end?
A: The court may, if in its discretion it deems it necessary or advisable, order child support and education costs for children attending high school at the time of their eighteenth (18th) birthday and for ninety (90) days after graduation, but in no case beyond their nineteenth (19th) birthday. In addition, the court may order child support to continue, in the case of a child with a severe physical or mental impairment, until the twenty-first (21st) birthday of the child.