Adoption of Mariano

A recent Massachusetts Family Court decision, In re Adoption of Mariano, 77 Mass. App. Ct. 656 (Massachusetts Court of Appeals, September 14, 2010), denied a parent's ability to voluntarily give up their parental rights to the other parent based on the theory of the child's best interest and the parent's financial responsibility to that child.

The fact pattern, noted on the American Bar Association Family Law Section Case Update for September/October/November 2010, was as follows: By agreement, the divorcing parents of an infant son proposed a single parent adoption by which the father would relinquish all rights and duties toward the son and the mother would assume the role of sole parent. A judge of the Probate and Family Court conducted an evidentiary hearing, composed findings of fact and conclusions of law, and rejected the father's adoption surrender and the mother's adoption petition. The appellate court affirmed, holding that divorcing parents may not bargain away the best interests of their children in general, and the children's right to support, financial or otherwise, from either one of them in particular.

To Read the opinion (Social Law Library @ www.socialaw.com)

In my practice, I am often asked by one parent if the other parent can give up their rights to the child(ren) because that other parent is uninvolved or disinterested. My response is typically "not likely" given the existing Rhode Island decisions that have addressed similar issues, but we do not have to stop there. I am not aware of a current Rhode Island case addressing this specific question and Rhode Island is not bound by a Massachusetts decision, but a Rhode Island Court can consider what other states have decided when they are reaching a decision for a the first time on a specific issue.

If you are in a situation where your child's other parent is uninvolved or disinterested, or you feel he or she should not be involved with the child for the child's best interest, you should call our office to discuss what is happening, and what options may be available to you. In the alternative, if the parent of your child is trying to have your rights as a parent terminated because you cannot be involved on a day to day basis for reasons such as military deployment or other occupational commitments, we may be able to help.

Helping Children Cope with Divorce

DIVORCE BOOK REVIEWS

Reviewer: Nancy Johnson-Gallagher. LICSW, Mediator

CHILDREN’S BOOKS

Helping Your Kids Cope with Divorce, The Sandcastles Way, Gary Neuman, LMHC, 1998

A Great guide for helping children adjust. The book is based on the “The Sandcastles Way Divorce Therapy Program” which has been implemented in many family courts. This book is a great reference book that focuses in deeply on the children’s experience with a lot of case presentation to normalize even the most complicated cases.

Newport RI Divorce Attorneys Communicate

A lawyer is asking our office to prepare a Military Qualifying Court Order (like a QDRO) to divide a pension of a military member who is in the reserves. She sent the following message this week which illustrates that we will confer with divorce attorneys in advance of their negotiation or their court date as a “good will” gesture in hopes that when the time comes to draft the pension division order we will be asked to draft that Order:

Your office is prompt as always; I have already heard from Kristy in regard to the two QDROs. You were a big help to me on this same case last spring, and it is very appropriate that your office receive a thank you.

RI Divorce Attorney Speaks at RI Mediators Seminar

Law Office of Jeremy Howe Provides Training With RI Mediators Association

December, 2010 – Newport, RI – On October 27, 2010, Attorney Jeremy Howe and Nancy Johnson-Gallagher, LICSW, presented a two hour training seminar for the Rhode Island Mediators Association regarding Mediating Divorce Cases, Advanced Financial Considerations. The seminar was held at the Providence campus of Roger William University and was attended by 22 individuals including two retired judge-mediators, experienced mediators, new mediators and students.

Attorney Howe commented on his involvement by stating, “We were pleased with the evaluations and were especially pleased that they seemed to appreciate our emphasis on 'Organizing the Data and Balancing the Power.'”

The Rhode Island Mediators Association is a non-profit association dedicated to serving and supporting Rhode Island Mediators, and serves as a resource for locating practicing mediators in RI.

RI Child Support Issues and Financial Matters

Newport RI Child Support Attorney Jeremy Howe posts the following testimonial from a client:

A client came in to see Jeremy in early November (2010) regarding a post-divorce issue regarding child support and other financial issues regarding the children.

Jeremy’s advice was more “interest-based” than “law-based”:

What was the client’s primary interest? Answer, “The well-being of my children.”

What action best promotes that interest? Answer, “Letting matters lie.”

After the consultation, the client decided not to file a Motion in the Family Court. Any other response would have put the client and his ex-wife back into a contested hearing in court and the children would inevitably suffer from the discord.

About a week after the consultation, the client paid his bill and wrote these words:

“Thank you so very much for the wise counsel… as always.”

Mom's House, Dad's House Helps Children Cope with Divorce

DIVORCE BOOK REVIEWS

Reviewer: Nancy Johnson-Gallagher. LICSW, Mediator

PARENT’S BOOKS

Mom’s House, Dad’s House: Making Two Homes for Your Child, Isolina Ricci, PhD, 1980, 1997.

A classic, this book has been helping parents transition to co-parenting in separate homes for 30 years, and is still the “go to” book on the issues. The real strength of this book is that it helps the adults to understand where they are in the process of divorce (and developmentally) and how that impacts their children. It gives great specifics on how to communicate better, identifying styles of conflict in divorcing couples, and setting up “two homes” for your children.

Divorce Courts Revalue Business Assets

The Law Offices of Jeremy W. Howe, LTD found this information about modern day divorce settlements to be relevant and important reading for anyone going through a divorce or settlement. Our office has used Barrett Evaluation Services in our legal and mediation practice on several occasions.

Roundup on Divorce Cases: Discounts, Valuation Dates, 

and the Economic Downturn

Is the severe economic downturn sufficient reason for a divorce court to revalue business assets? Does the statutory fair value standard preclude marketability and minority discounts in divorce? And what happens when a trial court combines the income and market approach to valuing a business?

The following four recent divorce cases answer these questions and more.


An unprecedented recession. In Mistretta v. Mistretta, 2010 WL 547149 (Fla. App. 1 Dist)(Feb. 18, 2010), the trial court valued the parties' restaurant at $845,000, based on expert appraisals conducted in 2007. Not long after the divorce was final, the husband filed a motion to reconsider. The economic recession caused the restaurant to lose nearly $57,700 in 2008, the husband claimed, and this "newly discovered evidence" merited a new trial and valuation. The trial court granted the motion, finding the 2007-2008 recession was "totally unforeseen."

The wife appealed, arguing that the economic down-turn was merely a change in circumstance, and the appellate court agreed. Business valuation is a forward-looking exercise, based on financial facts currently in existence as well as projected revenues and cash flows. "Economic recessions, like other vagaries in the business cycle, are contingencies appraisers must take into account in valuing a business," the court said. Although no valuation expert could have predicted the severe economic crisis, the trial court's order did not explain why, on rehearing, these same experts were more likely to accurately predict future economic conditions. "A cloudy crystal ball is no basis for a new trial," the court held, and it denied the motion.


Application of discounts and the statutory fair value standard. In Lemmen v. Lemmen, 2010 WL 454959 (Mich. App.)(Feb. 9, 2010), the husband owned a minority (25%) interest in a profitable, privately held oil and gas business with his brothers. The husband's expert valued his interest at $5.5 million; the wife's expert said it was worth $17.5 million. The trial court rejected the husband's valuation expert, finding that he incorrectly applied a discount rate to the company's dividend stream rather than net cash flows. This left testimony from the wife's expert, who declined to discount his $17.5 million value for lack of marketability or lack of control because the company enjoyed exceptionally strong cash flows, low debt, and a substantial cash base. Four years prior to the divorce, however, the same expert had valued the same company for one of the co-owners, applying a 25% minority discount and a 30% marketability discount. He did so only at the behest of the lawyers, the expert explained; it was not his general practice to discount the valuation of closely held stock. Nevertheless, the trial court applied the expert's prior discounts to his current valuation in divorce, and valued the husband's 25% interest at $11 million.

Both parties appealed. The appellate court deferred to the trial court's broad latitude to determine the value of stock in closely held corporations and accepted its valuations, including discounts. It also rejected the wife's arguments that the statutory fair value standard should apply to divorce cases. One judge on the panel dissented, which may set the case for an appeal to the state Supreme Court.


Emphasis on the correct date. In Goodwin v. Goodwin, 2010 WL 669244 (Tenn. App.)(Feb 25, 2010), the parties owned and operated a steel detailing business together. The husband's expert valued it at $385,000, excluding goodwill. Importantly, he valued the company as of the date the wife stopped working for the company as a bookkeeper, in 2007, and the husband took over sole operations.

By contrast, the wife's expert concluded that the steel business was worth $1.65 million, valued as of December 31, 2008-just months before the parties' trial. After considering the evidence and applicable law, the trial court adopted the value as calculated by the wife's expert, and the husband appealed.

Resolving such a wide range of values is "one of the main roles of a trial court," the appellate court said. A trial court is free to value a marital business within the range of evidence presented, and "that is exactly what (this) court did." Further, state law requires valuing a marital business as close as "reasonably possible" to the date of trial. Since the wife's expert valuation was 19 months closer to this date than the husband's, the wife's evidence was more in line with the law, and the appellate court confirmed the lower court's $1.65 million valuation.


A mix of valuation methods. In Rozenman v. Rozenman, 2010 WL 845924 (Ariz. App.)(March 11, 201O)(unpub.), the husband owned a separate cigar business, which appreciated during the marriage (2003-2008). As a start value, the trial court adopted a net asset valuation of the business at $177 ,000, not because an asset value is generally superior to an income or market approach, it said, but simply because it was the only evidence available. The parties each presented experts to value the business at the end of the marriage. The husband's expert relied on a net asset approach ($274,000); he also applied a market approach ($518,000) but said it wasn't "financially feasible."

By contrast, the wife's expert preferred the market approach because the comparables were good and the method adequately accounted for the business's strong, ongoing operations, its workforce, and goodwill. The trial court adopted the market approach by the husband's expert ($517,800) and the husband appealed, claiming the court should have adopted a net asset value to measure the business both before and after the marriage. Under the circumstances, however, the rationale of the trial court was reasonable, the appellate court held, especially given the lack of market analysis for the start-up business at the beginning of the marriage."



This newsletter is a publication of Barrett Valuation Services, Inc. This firm specializes in providing business valuation services for closely-held companies, primarily for estate planning and litigation support purposes. John E. Barrett, Jr. is a Certified Valuation Analyst and a member of the National Association of Certified Valuation Analysts (NACVA), a Certified Business Appraiser and a member of the Institute of Business Appraisers (IBA), and an associate member of the American Society of Appraisers (ASA). This firm subscribes to the Uniform Standards of Professional Appraisal Practice (USPAP) and has experience in providing valuation conclusions that are supportable and defensible. For further information on how BVS can serve your business valuation needs please call.

John E. Barrett, Jr., CPAIABV, CBA, CVA
Barrett Valuation Services, Inc.
989 Reservoir Avenue
Cranston, RI 02910
Phone: (401) 942-3900
Fax: (401) 942-3988

Children's Books for Divorcing Parents

Divorce Book Review by Nancy Johnson-Gallagher highlights a book for parents to read with children during the divorce process.

DIVORCE BOOK REVIEWS

Reviewer: Nancy Johnson-Gallagher. LICSW, Mediator

CHILDREN’S BOOKS

It’s Not Your Fault, Koko Bear: A Read Together Book For Parents and Young Children During Divorce

Vick Lansky: author of Divorce Book for Parents (1998)

This book has been a standard in the field for parents and counselors alike for years. Children whose parents are divorcing have their world shaken, and their parents abilities to parent are often shaken concurrently. The beauty of this book is that each issue is addressed for the child and there is complementary commentary on each page for the parents on how best to address their children’s feelings of loss, anger, self-blame and fear. Dependent upon the child’s maturity this book is best used for the child between the ages of two or three, to seven or eight.

Divorce Recovery

By Nancy Johnson-Gallagher, LICSW

Psychotherapist and Divorce Mediator

Is there such a thing as divorce recovery? We can all cite instances of friends, family or acquaintance who just never seem to get over their divorce. They continue to talk about, think about and, in general, complain about their divorce as if it happened yesterday, when in reality their divorce may have occurred years prior. It often becomes difficult to be around such people and we don’t know how to support or be a friend to them. Oftentimes we find ourselves pulling back from these people as we just don’t know what to say anymore.

However, we cannot ignore the realities of divorce in our society. In the United States the statistics are clear, but cold. Fifty percent of all marriages will end in divorce, with sixty percent of second marriages ending in divorce. Divorce affects many people beyond those divorcing spouses. Children especially are hit hard, with one-half of all American children witnessing the breakup of their parents’ marriage. Divorce is very stressful and is rated second only to the death of a spouse on the Social Readjustment Scale of stressful life events.

What can we do? Divorce makes everyone so uncomfortable, because if it happened to them, it COULD happen to us. Here’s what you can do:

1) Listen (without criticism or judgment). Divorce is a loss, just as death is a loss. There are a lot of emotions which must be acknowledged and talked about. Would you expect a friend to get over the death of a spouse or child in a few weeks time?? A divorce is different for everyone, but in general expect the roller coast of emotions to continue as long as 18 months to two years, dependent upon the length of the marriage.

2) Encourage mediation and alternatives to adversarial divorce when indicated. The hardest part of the process for kids (and everyone in general) is conflict. Kids whose parents engage in ongoing conflict have the most profound problems. Encourage professional counseling help if you have the opportunity.

3) Help with the physical tasks of readjustment-your friend or family member needs your support in transitioning from being married where there were two people to perform the necessities of daily living and child rearing to being single and “doing it all.” Moving, yard work, going back to school, learning to cook, finding baby-sitters, etc. can be overwhelming without support.

4) Suggest alternative support systems. Many organizations and websites offer divorce recovery workshops and materials to assist with the readjustment phase following divorce. There are also many self-help groups to assist with adjustments that must be made.

5) Offer Acceptance in general. Clearly, divorce is not going away. Don’t let your friends feel as if they are now “different.” Let them know you are there for them in all ways.

Books for Children and Adults to Help Explain and Ease the Divorce Process

From time to time, we find books that deal with divorce topics that are of immense benefit to children and parents alike. Dinosaurs Divorce, a book for children, is reviewed below and can also be found with other similar books on our website.

DIVORCE BOOK REVIEWS

Reviewer: Nancy Johnson-Gallagher. LICSW, Mediator

CHILDREN’S BOOKS

Dinosaurs Divorce: A Guide for Changing Families

Laura Krasny Brown and Marc Brown (1986).

A classic, this book has been helping families adjust to divorce since 1986. It addresses just about every issue that can occur during divorce including verbal violence and substance abuse, and offers empowering strategies for the child. It gives permission for the child to “not listen” to a parent’s berating of the other, or even to ask a parent not to say bad things about the other parent. Despite the very young art, this book is comfortable reading for the two year old to the eight year old.

Christmas Holiday Visitation Schedules

Under normal circumstances, the custodial parent is not granted exclusive rights to holiday visitation with the children every year. Family court judges are accustomed to this arrangement and have devised a schedule so both parents can enjoy time with their children on this special day.

A lot of parents feel that the children should wake up on Christmas morning in the home where they spend most of their time, and expect the judge to agree to this arrangment. This arrangement takes away the rights of the non-custodial parent. If parents are unable to arrive at a schedule that is acceptable and mutually convenient to both parties, the court will make the decision for them.

A typical Christmas visitation schedule will allow one parent visitation with the children from Christmas Eve until between 11am and 2pm Christmas Day, and the other parent visitation from between those times on Christmas Day, overnight and until between 11am and 2pm the following day on one year, and alternate with the other parent, the following year.

This allows both parents to enjoy the company of the children over the holiday.

RI Divorce and Inherited Property

RI Divorce Attorney in Newport handles complex issues involving 30 year marriage and inherited property.

RI Divorce and Inherited Property Issue

Divorce after an approximately thirty year marriage. We represented the Wife. The major issue in the case was the family business which was inherited and owned by the Husband and his brother, and the Wife’s contribution to that business throughout the marriage due to the fact that she was not an “employee.” [Inherited property in RI is not divisible, on its face.]

We used a business evaluation and negotiations with opposing counsel to reach a resolution that awarded the Wife a specific amount of support for a sufficient amount of time to get herself on her feet. She was an artist and needed time to reinvent her business and get it off of the ground so she could be self-sufficient.


CAVEAT: EACH CASE IS FACT SPECIFIC AND WHAT MAY HAVE HAPPENED IN THESE CASES MAY NOT “FIT” YOUR PARTICULAR SITUATION OR BE IN YOUR BEST INTEREST.

RI Family Court Motion to Modify Child Support Settled

Newport RI Divorce Attorney reports Family Court case results:

Motion to Modify Child Support

Client/father came to us after being served with a motion to modify child support 11 years after the original divorce.

We worked with the client and the other attorney to reach a resolution without having to litigate the matter saving the client time out of work and attorneys fees.

CAVEAT: EACH CASE IS FACT SPECIFIC AND WHAT MAY HAVE HAPPENED IN THESE CASES MAY NOT “FIT” YOUR PARTICULAR SITUATION OR BE IN YOUR BEST INTEREST.

Family Court Divorce in Newport RI Case Results

Newport Divorce Attorney Howe and Associates handle a recent Family Court case easily and quickly.

Divorce Hearing Goes Smoothly

Divorce of parties after a very short marriage. They separated very shortly after the ceremony. We represented the Wife after she had filed the divorce petition on her own. She was not sure she would know what to do when it came time for court, and wanted to be sure it was done correctly. The Husband did not appear and the case reached its end rather quickly. The hearing went smoothly, she had the correct number of witnesses, and she was pleased that the appropriate paperwork was filed in order and on time so that she was properly divorced.


CAVEAT: EACH CASE IS FACT SPECIFIC AND WHAT MAY HAVE HAPPENED IN THESE CASES MAY NOT “FIT” YOUR PARTICULAR SITUATION OR BE IN YOUR BEST INTEREST.

RI Divorce After Assistance by JAG Office

A client whose husband is a member of the military comes to us for a divorce.

Newport RI Divorce for Military Wife

Divorce of Husband and Wife after 6 year marriage. The Husband hired our office, and the Wife represented herself, along with assistance from her local JAG office due to the fact that the Husband was a military member. The Wife had already moved out of state and did not want to attend the court hearing in Rhode Island. My client and she worked together while I communicated with the JAG officer in order to reach a resolution that was satisfactory to both of them. She chose not to make the trip to put it on the record given the written contract we were able to negotiate.

CAVEAT: EACH CASE IS FACT SPECIFIC AND WHAT MAY HAVE HAPPENED IN THESE CASES MAY NOT “FIT” YOUR PARTICULAR SITUATION OR BE IN YOUR BEST INTEREST.

Military Divorce in Newport RI and Child Support Issues

Newport RI Military Family Law Office secured a reasonable award of child support from father on active duty for infant child.

Military Divorce Awards Child Support

Military Divorce of parties with one child, less than a year old. Husband was on active duty. Wife’s attorney contacted us to assist her with trying to understand what the military requires of its members who have children, and how that differs from the family court.

Ultimately, after consulting with us, the attorney initiated a “Congressional Inquiry” to determine why actions were not being taken by the military to require the soldier to support his child.

Within days thereafter, a garnishment of his wages took place and the mother began to receive her support.


CAVEAT: EACH CASE IS FACT SPECIFIC AND WHAT MAY HAVE HAPPENED IN THESE CASES MAY NOT “FIT” YOUR PARTICULAR SITUATION OR BE IN YOUR BEST INTEREST.

Client Review for Newport Estate Attorney

A Lifelong Client of Jeremy's Left a Personal Testimonial

I have known Jeremy Howe for almost thirty years, and when it came time to write my will and plan my estate, there was no doubt about who my attorney would be. 

Jeremy takes the hassle out of the process of drafting all the necessary paperwork and does it for a very reasonable fee. He has offered advice when he thought it would be beneficial, and has always been there when I had questions about how to handle a specific situation. 

I trust him. ~ John D.

Child Support: It matters where you file!

I was reading a recent New Hampshire case regarding whether Massachusetts child support laws should be applied in the New Hampshire court, or if New Hampshire laws should apply. The order was originally made in Massachusetts, but the custodial parent then moved to New Hampshire.

The answer is, as we lawyers often like to say, "It depends."

The Uniform Interstate Family Support Act (UIFSA) dictates what rules apply and when, if an Order is being reviewed in a different state than where the original action took place.

A simple example of why it matters, is that Massachusetts laws require that child support should be paid until the children are 21 years old. The Rhode Island laws state that support is only paid until the child reaches 18, or if the child turns 18 while in high school, three months after graduation. In no event, however, unless the child is disabled, will support be paid beyond the child's 19th birthday.

Given the close proximity of the states, unmarried people with children often travel from Rhode Island into Massachusetts before filing a court action, or vice versa. Your timeline will determine where you can file, but it is important to know if you have choice! It may make a big difference.

Contact our office with any of your child support questions at 401-841-5700, or go to our website at www.CounselFirst.com for more information.

Governor to appoint new Chief Judge of the R.I. Family Court

As a family court practitioner, I am very curious regarding who the governor will choose. The article below attempts to sum up the options. I have heard a lot of banter at the courthouse from seasoned veterans that things are not likely to change regardless of who is put in that seat... but I hope they are wrong. The system is flawed and people suffer because of it.

I will do my best to work through whatever system we have and work to get my client's through it with as few "bumps and bruises" as may be possible. I do hope though, whomever is chosen upholds the law, understands what parts of the system work and what parts do not, and remember that they are dealing with people: first and foremost. There must be a better way to get to the other side than what is in place at this moment.

If you are thinking about a divorce or other family court action, call us at 401-841-5700 and we can discuss what you might expect, the time it will take, and how we can help you to move on to the next step of your life.

5 finalists selected for chief judge of R.I. Family Court

01:00 AM EDT on Wednesday, August 18, 2010
By Katie Mulvaney (Journal Staff Writer) Providence Journal

PROVIDENCE — The Judicial Nominating Committee Tuesday night picked five Family Court judges as finalists to take the top seat at the court that handles divorce, child custody and some of the state’s most heart-rending cases.

The names the commission will send to Governor Carcieri as possible nominees to replace former Family Court Chief Judge Jeremiah S. Jeremiah Jr. include Judges Kathleen A. Voccola, Michael B. Forte, Laureen D’Ambra, Haiganush R. Bedrosian and Stephen J. Capineri. John E. McCann, who joined the bench in October, was the only contender not to make the list.


All eight commission members present voted in favor of naming Capineri and Forte as finalists. D’Ambra and Voccola each won seven votes. Commission member D. Faye Sanders opted not to support D’Ambra, while C. June Tow did not back Voccola.

Bedrosian, who has served as acting chief of the court since Jeremiah’s retirement June 30, won six votes. She failed to gain support from Sanders and fellow commissioner Norman L. Landroche Jr. Sanders cast the single vote for McCann. Commissioners Mirlen A. Martinez Mal and Jeffrey M. Grybowski voted, although they did not attend the commission’s interviews of the candidates last week. Sanders also cast votes though she only briefly observed interviews.

There is no provision in the commission’s rules that prohibits a member from voting without participating in the interviews, Commission Chairman Dr. Herbert J. Brennan said. All the members had read each of the candidates’ applications, he said.


Before voting, the commission heard testimony from colleagues, friends and family of the six candidates as well as critics of the Family Court system.

Retired Family Court Judge Pamela M. Mactaz spoke on Bedrosian’s behalf as a friend and former colleague. Mactaz emphasized the importance of institutional knowledge to hoist the court out of its present “malaise” and lead it into the future. “The next chief justice of this court has to make some difficult choices,” Mactaz said, adding, “This is a woman who can say no.” Bedrosian, 67, of Warwick, joined the court in 1980, with prior private practice and prosecutorial experience.


Providence lawyer Patricia Rocha, daughter of the late Family Court Judge Gilbert T. Rocha, praised Capineri’s sharp mind, integrity and inclination to use education as a tool within the court. Capineri, 56, of East Providence, was named to the Family Court bench in 2001, after serving as a magistrate there for five years.

Voccola won accolades from Brother Brendan Gerrity, the executive director of Ocean Tides, the Narragansett-based school for troubled boys. Voccola, he said, affirms juveniles when juveniles need to be affirmed and treats kids with fair impartiality. With confidence and good humor, Voccola possesses the ability to make tough decisions, he said. Voccola was named to the bench in 1989 after serving as state liquor-control administrator.


Lia Stuhlsatz, a staff lawyer for Rhode Island Legal Services, told of Forte’s unsentimental fairness in applying the law. Forte, she said, gave a former client who had been in and out of jail a chance to prove she was a fit mother, despite her time in prison. His two decades on the bench had imbued him with the confidence and courage to send a child in state custody home, she said. Forte, 58, of Johnston, was appointed to the court in 1987. He served as a state senator in East Bay in the 1980s.

Victoria M. Almeida, president of the Rhode Island Bar Association, said D’Ambra had the experience and vision to bring the court into the modern day. She extolled D’Ambra’s collaborative approach and the administrative ability and strength of character she showed in challenging state practices as the former child advocate.


D’Ambra, 53, of Lincoln, joined the court in 2004, after acting as the child advocate for 15 years.
John E. McCann IV said his father could be stern when needed, but that he had a respectful manner and a voracious appetite for knowledge. “His only bias will be to do what is right,” the younger McCann said. McCann, 60, of Barrington, came to the court in October with 30 years of experience in private practice.

Under Rhode Island law, the governor is required to fill the vacancy within 21 days after the commission sends him the finalists. But his spokeswoman Amy Kempe said Carcieri views the 21-day time frame as merely advisory. The lifetime post carries a $154,707 base salary.

Providence Family Court Judge forbids communication by parties and their attorneys to ALL third parties.

After reading the article below, my first thought was, "Wow! What was it that the mother put on the internet?" In my experience, as recited by the DCYF Chief of Staff, these types of orders are entered in order to protect the interests of the child. What the article does not tell you is that DCYF is only involved when there is an allegation of abuse, neglect, or dependency. These are legal terms of art, but generally mean that there is some allegation that the child is being harmed in his or her current situation.

I am concerned that this is very broad order in that it prohibits the parent and their attorney from discussing the case with any third party. A couple of third party professionals that I would want to be able to consult with myself and ask my client's to consult with are the child's or party's counselor (if they have one), medical doctor (if there are applicable concerns) or the child's teacher. As the attorney, we do not know all there is to know about a child and consulting with other professionals can be a good way to get a handle on the big picture and look at a case from all angles. We need to be able to do that to assist our clients in their own case, as well as to sift through the he said/she said to know how the circumstances are affecting the child at issue.

If you have questions regarding a child custody decision or a divorce, please call us at 401-841-5700. It is always wiser to "counsel first!" Visit our website at www.CounselFirst.com

Judge bars R.I. mother from talking about custody case.

Posted: 08/13/2010 7:44 PM
Providence Journal
By News staff; By LYNN ARDITI, Journal staff writer

PROVIDENCE, R.I. -- A Family Court judge has forbidden a woman from talking about her custody case with anyone, including the media, or posting anything about the matter on any blogs or other sites on the Internet.
The woman, Faith Torres, has contacted the American Civil Liberties Union about the gag order, but declined comment for fear of violating it.
"This court order is a blatant violation of the First Amendment,'' Steven Brown, executive director of the ACLU's Rhode Island affiliate, said. "If she believes she is being treated unfairly, or if she just wishes to make people aware of her case, she should be able to do so free of a court-ordered gag rule.''
The judge's order is so broadly worded, Brown said, that "Ms. Torres faces contempt of court charges if she discusses the case with her mother..."
By law, someone who violates a court order and is charged with contempt of court can face imprisonment.
Family Court Judge Debra DeSegna issued the gag order -- which applies not only to Torres but also her lawyers -- on July 29 at the request of the Rhode Island Department of Children, Youth and Families.
DeSegna was on vacation this week and could not be reached for comment. Neither Acting Family Court Chief Judge Haiganush R. Bedrosian nor Associate Judge Karen Lynch Bernard, who was filling in for DeSegna and signed the Torres order on Friday, responded to requests for comment.
Joanne H. Lehrer, the DCYF director's chief of staff, said Friday that she could not discuss specifics of the case. However, Lehrer said, it's not unusual for the agency's lawyers, particularly in custody cases involving domestic disputes, to draft such "broad brush" orders and ask the judges to enforce them to "protect the confidentiality of the child."
The gag order issued by Judge DeSegna in the Torres case is contained in paragraph 4 of a 1 ½-page ruling that details the conditions under which Torres is allowed supervised visitation with her oldest child. It states:
"All parties to this action, including the Plaintiff and Defendant, and all counsel are restrained and enjoined from discussing any of the within court proceedings and related matters involving the children with any third party, including but not limited to members of the media, postings on blog, and/or the internet."
Torres said at the time that her lawyer, Jodie Gladstone, objected to the order but the judge overruled her.
Several calls to the Providence law firm where Gladstone practices went unreturned. A woman who answered the phone at the firm told a reporter that Gladstone could not respond due to the court order.

Newport RI Divorce Lawyer Kristy Garside delivers results for an appreciative client

A Jamestown, RI client/wife was getting a divorce after a 24 year marriage and contacted The Law Offices of Jeremy W. Howe, LTD. There were 2 children of the marriage (1 in college, the other finishing high school).

After the successful negotiation and settlement Attorney Garside received this note:

"Kristy listened to me, understood what I needed to do now and helped me set my course for the future. She is a thorough, efficient and compassionate advocate."

If you would like to speak with Attorney Garside or learn more about the services offered by the Law Offices of Jeremy W. Howe, LTD, call them today at 401-841-5700.

CAVEAT to Dividing the Pension for Employees of the Commonwealth of Massachusetts in Divorce

We were recently hired by a Massachusetts attorney to draft the Domestic Relations Order to divide the husband's pension pursuant to the parties' Divorce Agreement. He works for the Commonwealth of Massachusetts.

As I studied this plan, and worked with the Commonwealth's attorney to decipher the plan's terms, it came to my attention that there was a provision of the plan that allows a "new" spouse to elect her share of any pre-retirement benefit, even if the former spouse was supposed to get a portion of the pre-retirement benefit. The "new" spouse's election will defeat the former spouse's interest, and the former spouse would get nothing!

This kind of caveat to a plan is important to know about if you are the attorney representing the "soon to be" former spouse. People are working far beyond "normal retirement age," and this means more risk to the former spouse's share. THIS IS A BIG DEAL IN THAT THE PENSION IS USUALLY THE PARTIES' LARGEST MARITAL ASSET.

There are also specific options to this plan for post-retirement benefits that need to be considered and addressed in any agreement, which I have not addressed here.

So, what to do?
1. You can make sure there is life insurance in place to protect the former spouse until the "ex" retires. Keeping life insurance in place may not be typical, and in most cases, it must be negotiated.
2. Know the plan options and limitations.
3. Get help from us!

Call 401-841-5700 or see our website at http://www.counselfirst.com/.

Share the good things, and let others know who they can trust.

Due to the fact we handle quite a few military family court cases, I have subscribed to the online military.com newsletter so I frequently get updates about major things happening within the different branches of the military, all over the world.

Today, I received an article entitled "Army Spouse Shares Tips for Deployment." The spouse of a military member who has been deployed half a dozen times was sharing tips with other families about what she does to prepare. For example, start early! One tip I found specifically important was that she asked her military friends to provide her with a list of plumbers, electricians, handy men, etc. that had been reasonably priced and trustworthy. As a mother and Wife whose husband handles most of such things, I thought this was brilliant! The comments on the article were from spouses that expressed hearing these things helped them feel like they were less alone, going through a scary situation. Knowing who you can trust and count on to do the job right is critical to making tough times less difficult.

I would like to encourage people to pass along their good experiences to others that they have had with their lawyer. People often rush to spread the word about a lawyer they did not like or thought did not do a good job because that is what people expect to hear about lawyers. They forget to share when their lawyer did a great job, or helped them through a difficult time. This has more to do with human nature and privacy than much else, but I would venture to guess that most people would appreciate knowing who they can trust and that someone else had a good experience when it comes to their personal business.

So, if you have a lawyer that you count on and that gets the job done for you, let other people know!

If you do not, then contact our office at 401.841.5700, and let us answer your legal questions.

Shield or Sword: How the ServiceMember Civil Relief Act made this adoption much more complicated!

I recently represented a military member who is on active duty. I was appointed by the court because when a military member is on active duty, the Servicemembers' Civil Relief Act (federal law) requires counsel to be appointed if the person has notice of the action, but does not appear. It is slightly more complicated than that, but you get the idea. If the military member does not "enter his appearance, " i.e. file a piece of paper with the court that states they are "entering their appearance" or an attorney is entering on their behalf, that military member has not consented to the jurisdiction of the court and the court order or judgment can be re-opened when that military member finishes their active duty.

In a typical adoption, if the biological parent had notice of the hearing, it would go forward without him or her, their parental rights would be terminated, and the child could be adopted.

In this case, there were additional hoops to go through to get it done, and we were still concerned that the military member could come back in two years and contest the adoption. Long story short, he cooperated with the documents, finally got us the originals with his signature, and this family can go on with their lives without worrying about a sledge hammer two years down the road.

I guess in summary, I wanted to point out that I am all for our military members and appreciate all that they do for our country. It is frustrating though, when the system can be manipulated. The people adopting this little girl did not deserve this additional frustration! It is typical in this business to hear the saying, "the Act is meant to be used as a shield, not a sword." This is a true example.

In our office, in Newport, we represent a good number of military members and their spouses. If you have a military family law question or concern, call us at 401-841-5700 or visit our website at www.CounselFirst.com

Dividing Retirement Plans - Know All the Pieces

The following article talks generally about tax consequences of dividing retirement accounts in divorce. Be aware that taxes are only one piece of what is addressed within a QDRO. All too often, the decree or agreement simply states that the retirement plan should be divided equally. This is not enough for those plans that have additional aspects, like survivor benefits, cash contributions that can be withdrawn, loans and much more.

Your attorney should be aware of every aspect of the retirement plan, and state in the decree and/or settlement agreement how it is being divided. Our divorce attorneys draft these types of Orders on a weekly basis for their clients, as well as for other attorneys.

Call if you have questions, whether you already have an attorney that needs more information, or you are just beginning the process. 401-841-5700 or http://www.counselfirst.com/

Divorce and your retirement accounts (found on fidelity.com)

BY Bill Bischoff, SmartMoney© 
2010 Dow Jones & Company. All Rights Reserved. SmartMoney® is a registered trademark of Dow Jones & Company, Inc. SmartMoney — 06/22/10


In addition to all the other stuff, getting divorced is a major financial transaction. As such, it can have serious tax implications, including some pitfalls you’ll want to avoid. This is especially true when it comes to splitting up tax-favored retirement accounts between you and your soon-to-be ex. You’ll need to plan ahead to make sure the tax results turn out OK for you. Here’s the story.

Use QDRO to divide up qualified retirement plan accounts. Say you have a qualified retirement plan at work (such as a profit-sharing or 401(k) plan) or a self-employed or small business retirement program (such as a “Keogh” pension plan). You’ll probably have to divide up your retirement account (or accounts) between you and your ex as part of the divorce property settlement. However, doing it carelessly can create a real tax fiasco for you.

To divide up qualified retirement plan accounts the tax-smart way, you need to establish a qualified domestic relations order, or QDRO. What’s a QDRO? It’s simply some boilerplate language that should be included in your divorce papers. First and foremost, the QDRO establishes your ex’s legal right to receive a designated percentage of your retirement account balance or designated benefit payments from your plan. The good news for you is that the QDRO also ensures that your ex, and not you, will be responsible for the related income taxes when he or she receives payouts from the plan.

The QDRO arrangement also permits your ex-spouse to withdraw his or her share of the retirement plan money and roll it over tax-free into an IRA (assuming the plan permits such a withdrawal). That way, your ex can take over management of the money while postponing income taxes until withdrawals are taken from the rollover IRA.

Bottom line: The QDRO is a fair deal for both you and your ex because it ensures that the person who gets retirement plan payouts will also owe the related income taxes. Who can argue with that?

Here’s the rub. If money from your qualified retirement plan gets into your ex-spouse’s hands without a QDRO being in place, you face a potentially disastrous tax outcome. You’ll be treated as if you received a taxable payout from the plan and then voluntarily turned the money over to your ex. So you’ll owe all the taxes while your ex gets the money tax-free. Ouch! To add insult to injury, you may also get stung with a 10% penalty tax if this happens before you turn age 59½.

So make sure your divorce papers include the necessary QDRO language. Helpfully enough, the government even provides sample language in IRS Notice 97-11 (it can be easily tracked down with an Internet search).

You would think this advice would be so well-known that I wouldn’t have to give it. You would be wrong. There have been tons of court cases where individuals turned over retirement plan money to their ex-spouses without bothering with QDROs. Those individuals all wound up getting socked with big tax bills. Not fair to them, but the tax rules are often unfair to folks who don’t know what they are doing.

Be careful with IRAs too. You don’t need a QDRO to divide up an IRA between you and your soon-to-be ex without dire tax consequences. You can simply arrange for a tax-free rollover of money from your IRA into an IRA set up in your ex’s name. Then your ex can manage the rollover IRA and defer taxes until he or she begins taking money out of the account. As with a QDRO, this procedure ensures that your ex, and not you, will owe the resulting income taxes. These rules apply equally to traditional IRAs, Roth IRAs, SEP accounts, and SIMPLE IRAs (they are all considered IRAs for this purpose).

You still need to be careful here. The nice tax-free rollover deal only applies when your divorce agreement requires the rollover. What happens if money from your IRA gets into your ex’s hands before or after the divorce without such a requirement? You’ll be treated as if you received the money, and you’ll be on the hook for the related taxes--even though you didn’t actually keep the money. Plus you’ll usually owe a 10% penalty tax if you’re under age 59½. To avoid this fate, you should never transfer IRA money to your ex in advance of a legal requirement in your divorce papers to do so.

The last word. You can divide up tax-favored retirement account money the tax-smart way or the tax-dumb way. Unfortunately, some otherwise-competent divorce attorneys know little or nothing about taxes. That doesn’t cut it. You need a legitimate tax pro who has handled lots of divorce-related tax issues on your side.

While your attorney might be able to fill that role, don’t take it for granted.

How to End a Marriage When You Have Children

Divorce is a stressful event no matter what the circumstances. It becomes much more important to settle your differences in a civil and understanding way when there are children involved however, as children often see a divorce of their parents as their fault, and that you are divorcing them as well.

Maintaining your friendship with your soon to be ex-spouse needs to be every divorcing party’s intent prior to establishing the settlement issues within the divorce. Ultimately, if you are not ready to part as friends, especially if you have children, and there is no abuse or addictions involved, then you need to seek counseling until you are both ready to let go in a more mature and consciously aware fashion.

If there are addictions involved, the divorce intention and focus of the sober, non-addictive parent needs to be the mental, physical, and emotional safety of the children and themselves. Working very closely with legal counsel, as well as a therapist of some kind, for this parent will be paramount to ensuring an easier transition for the entire family. And as long as the addictive partner is in treatment, is not abusive and actively working to resolve their issues, even supervised visitation can exist for the children if they want it.

If there is property involved, whether real or personal, both parties need to focus on what will be in the best interest of the children, and then work together as much as possible to ensure that every decision made first incorporates their desires as well. Often it is not financially feasible for parties to maintain the marital domicile while also offering the absent spouse a good quality of life. The idea is not to harm or create hardship for anyone involved, it is to maintain dignity and fairness at all costs.

Finding suitable housing for the custodial parent and the children will need to be the first joint project of the separating spouses in this instance, and the needs and desires of the children, together with the financial capabilities of the partners will be the main criteria for determining location and premises.

In the end you will be teaching your children very valuable lessons about what is necessary when you have outgrown a relationship, as well as informing them through your actions that you still care about everyone involved, and are simply changing the dynamics of your family structure, not ending the family relationship entirely.

Ending a marriage does not need to entail ending a family. In fact, in most instances, the resulting ease of tension and new peace that is found when warring spouses are separated can be a balm for everyone involved and offers a new outlook and way of life in the midst of difficult, but necessary, changes.