There are many young couples who divorce without children. These cases generally proceed through the Rhode Island Family Court fairly quickly and uneventful. This is not surprising. Children can cause controversy in many divorce hearings. In those cases, disagreements over custody, visitation and child support are commonplace. But the new norm in many divorce cases without children involves the battle over “Rover” the beloved family pet. In the last six months I have had two cases dealing with this precise issue. Being a devout dog lover myself and the happy owner of 3 hounds, I could relate to the emotional turmoil and anxiety that the litigants were experiencing about the possibility that one would be separated from their best friend. It used to be that some Family Court Judges in Rhode Island scoffed at the notion that a divorce could somehow be contested because of a dog. I recall vividly, about 25 years ago, a Judge telling me that “ the Family Court is not an animal control officer and if the parties don’t reach an agreement the dog can go to the pound .” This Judge was probably bitten by some dog as a small child. Not surprisingly, his comments brought tears to my client. The good news for animal lovers is that this Judge is now retired and not sitting on the bench and that my client ultimately resolved her dispute with her husband and kept her poodle.
There are no specific statutes and or cases in Rhode Island dealing with the division or assignment of an animal in a divorce proceedings. However, battles over so called “custody” of the family pet have made their way to the supreme courts of many other states. While courts recognize the emotional attachment that couples have with their animals, they are constrained by most divorce statutes to treat the beloved “Rover” as a piece of property and nothing more. Typically property in a divorce is assigned outright to a particular spouse and once the assignment is made it becomes final and not subject to change. A recent case from the Vermont Supreme Court determined that the family court had authority to award the parties dog to one spouse but lacked any authority to award visitation to the other. The Court reasoned that once the dog was assigned to one spouse (in that case the husband) all issues regarding the “property” were extinguished. I suspect that if this issue were litigated in the Rhode Island that the result would be similar.
In my opinion, there are ways for parties to negotiate an equitable arrangement for visitation and contact with an animal which general divorce laws might not allow. Under Rhode Island divorce law, the parties are able to enter into a written contract which provides relief that might not be otherwise available. A detailed written marital settlement agreement providing for visitation and access to the family pet can resolve the uncertainty and often unpleasant outcome when the Judge is forced to decide who gets the dog.
Christopher M. Lefebvre Pawtucket Rhode island 4/20/2016
I see a lot of clients that are frustrated and annoyed with the slow pace of their pending Rhode Island divorce cases. There are several reasons why a divorce drags on for what seems to be an eternity. Here are my top 3:
Reason number one, because the parties are being difficult and refuse to terminate their marriage in a dignified fashion. Some couples just like to fight about minutia and be vindictive and spiteful. Based on my 27 plus years of experience, most spouses in this group usually don’t complain about the protracted nature of their divorce proceedings. They understand that their conduct has consequences-delay, delay and more delay and of course more money being spent on legal fees. Fortunately these types of couples ultimately stop waging war and get to the finish line after they start receiving their lawyer’s monthly billing statements!
Reason number 2, the lawyers involved in the case. There are a group of lawyers in every state including Rhode Island that convince their clients that they are superior and perceived as the so called “best” that money can buy ( at least so they think). They charge clients ridiculously high retainer fees and make promises that they will get more favorable results because of their alleged self proclaimed prestige in the practice of divorce law. These lawyers make a big deal out of everything. They make money by delaying a case. They charge by the hour, so the more they talk, and the more insignificant issues they raise, the more money they make. I have no patience for this group. It’s truly unfortunate when one spouse hires this category of attorney and the other spouse hires a practical, efficient, result orientated attorney that wants to get the case resolved in a fair and expeditious fashion. Resolving a divorce case quickly is not a sign of weakness but demonstrates practicality and good judgment. The simple truth is that any competent and experienced divorce lawyer can tell you where you will be at the end of the day ( end of your case) with razor like precision. So if the result is pretty much predestined, then why not get their sooner rather than later?
Reason number 3, the Judge. Let’s be honest. Judges are human. Some take the bench on time with razor like precision. Others don’t. Some have a hands on approach and actively get involved in the case and try to expedite a resolution of the case. Some don’t. Some Judges will assign contested matters for hearings quickly so cases get resolved and the parties can move on with their lives. This is my favorite type of Judge. They give the lawyers and litigants a reasonable amount of time to settle a case. If settlement is not successful, the Judge will conduct a hearing and decide the issues. Unfortunately some Judges hate to conduct evidentiary hearings and will do everything to avoid a hearing which typically results in further delay with the parties being pushed into endless mediation sessions. Don’t get me wrong, mediation can be beneficial in some circumstances. But if you have a good attorney who knows what he or she is doing and has advised you that your position on an issue is legally solid, then why do you need to be pushed into mediation.? A divorce mediator has no power to change your mind or that of your attorney!
Christopher M. Lefebvre, Pawtucket R.I.
Watch Out For This Student Loan Creditor
There is no question that we are in the midst of a major student loan crisis in this country. The situation is very bleak. College education costs have spiraled out of control and unsuspecting consumers are now straddled with enormous amount of student loan debt. It used to be that you paid a reasonable amount of money to be educated and if you studied hard you would be rewarded with a high paying job. Well those days are gone. Now we have highly educated young adults with multiple degrees that are grossly underemployed. They are making no more or perhaps slightly more than their friends and companions with just a high school education. Ironically, the college educated friend is worse off because they have tons of burdensome student loan debt that they can’t afford to pay. There are programs available to help individuals deal with federal student loans. Though these programs are far from perfect, they do provide some meaningful assistance to those struggling with student loan payments. There are no similar programs to deal with private student loans. As a result, there are some private student loan debt purchasers that have flooded the courts with lawsuits that result in mass implementation of wage garnishments and seizure of assets. If you have a private student and are being sued to collect this type of debt, you need to take action.
I have started to notice a large increase of private student loan lawsuits being filed in Rhode Island by National Collegiate Trusts. Most of these lawsuits are being filed in the Rhode Island Superior Court. This company has inundated many state courts systems with thousands of student loan lawsuits attempting to collect on private student loans assigned to them. But in many states, creative consumer attorneys have fought back and begun to examine the paperwork filed in these cases to challenge the allegations in the court documentation. Bottom line, this company may not be able to prove that you actually owe the money to the company. Unfortunately, many Rhode Island individuals sued by this company never respond to the court complaints or hire a lawyer to review their options and therefore judgments are summarily granted against the borrower. Once this happens, all the defenses you might have to payment pretty much disappear. Bottom line, if you are being sued by this company, do yourself a favor and speak to someone who is familiar with possible defenses to private student loan lawsuits. I am lucky that a long time friend of mine attorney Richard Gaudreau of New Hampshire has educated me on these issues. So I am now ready to help educate you.
Christopher M. Lefebvre Esquire
What’s the Right Choice for me?
I have been practicing consumer bankruptcy related law for 27+ years. Most people thinking about filing bankruptcy always ask me about the different chapters available under the bankruptcy code. 98% percent of the bankruptcies filed in the Rhode Island Bankruptcy Court are either chapter 7 or chapter 13 consumer cases. Over 90% of these filings are chapter 7 cases. So, what’s the difference? In a chapter 7 bankruptcy, an individual usually keeps all of their assets and eliminates or discharges all or most of their debts. Chapter 7 is the most favored option in Rhode Island because we have very generous exemption allowances. An exemption is your right to keep certain property. So most people filing chapter 7 can keep their house, car, jewelry, retirement accounts, pensions, life insurance policies, small bank accounts and their children. In rare circumstances, an individual filing bankruptcy will be forced to relinquish or sell some assets that are not protected in bankruptcy. This does not happen very often. For example, in Rhode Island unlike other states, there is no right to protect settlements from a car accident or other personal injury claim. Small injury settlements, those under $10,000.00, can usually be protected in bankruptcy. The settlement proceeds from larger injury cases are often not exempt and must be turned over to the bankruptcy trustee. The trustee is the person who generally oversees the administration of your case. The trustee takes these nonexempt injury funds and uses them to pay some dividend to your creditors. If you are thinking about filing bankruptcy in Rhode Island, make sure you tell your lawyer about any pending personal injury claims.
In a chapter 13 case, an individual gets to keep all of their assets but is required to pay a certain amount of money to a court appointed trustee for a period of 3 to 5 years. The trustee uses these monies to pay mortgage arrearages, delinquent vehicle payments, certain tax debts and to pay some dividend to general unsecured creditors. Many times an individual that would qualify for chapter 7 protection elects to file a chapter 13 because they have fallen behind on their mortgage and needs to use the bankruptcy system to reinstate payments and cure the arrearages over time. Some people are simply not eligible for Chapter 7 protection because they make too much money and therefore choose to file Chapter 13 to deal with their debts. You don’t have to repay all your unsecured debts in chapter 13. Your creditors receive a certain percentage based on a complicated formula which is based on household income. The larger the household income, the more you have to repay. The Chapter 13 process is definitely more complicated than Chapter 7. The vast majority of chapter 13 cases in Rhode Island are filed to stop foreclosure and help reinstate a delinquent mortgage. From my perspective, chapter 13 cases are always more invigorating because they provide a certain amount of flexibility for dealing with certain debts which is unavailable under chapter 7.
Christopher M. Lefebvre Esquire
May Credit Score Is Improving!
There is always one consistent question asked during every bankruptcy consultation. “ Will I ever be able to get credit again after the filing? ” The answer to this question is pretty simple: “Well it depends.” Credit worthiness is based in some regard on income. So if you have a job and are making money then chances are you will be eligible for future credit. Credit availability is also based upon one’s credit score. A bankruptcy filing adversely affects a person’s credit score. But, there are some proven methods to help dramatically improve credit score after a bankruptcy filing. Your credit score will not improve if the credit reports are not updated to properly reflect the bankruptcy filing. Once your bankruptcy case has been closed and discharged, it is important for you to obtain copies of your 3 credit reports. I always recommend that my Rhode Island and or Massachusetts bankruptcy clients utilize the free website annualcreditreport.com to obtain their Transunion, Experian and Equifax complete credit reports. Getting the individual credit reports rather than a combined report ( which as all three reports merged into one document) is recommended. You need to review the reports to make sure that all the trade lines in the credit reports are accurately reflecting the status of the former obligations that were discharged in bankruptcy. Many credit bureaus make mistakes in the reporting of the bankruptcy filing which cause credit scores to remain low post bankruptcy. Check to see that the credit reports are showing that the balances due each creditor are ZERO and reflecting that the account was included in a prior bankruptcy. If the reports are not correct then you need to get them updated. Once you know that your credit reports are accurate about the bankruptcy filing, only then can you start the process of rebuilding your credit.
A friend of mine used to work at a credit reporting agency in Arizona but died unexpectedly. He taught me a lot about credit scoring modules in the post bankruptcy arena. The bottom line to improving credit score is to open up a few accounts post bankruptcy. There are many credit card companies that will give you a credit card provided you open up a savings account with the company. For example, you deposit $500.00 into a savings account and the company will give you a credit card account with a $500.00 limit. These type of arrangements are known as secured credit card accounts. I suggest that you open two of these accounts. Use one to charge groceries and household expenses, and the other for gas and auto repairs. Always keep a small balance on these accounts and most importantly make sure the minimum payments are made on time. These small accounts if used correctly will help your credit score dramatically improve. Yes, there is credit life after a bankruptcy filing!
Christopher M. Lefebvre Esquire Pawtucket Rhode Island
Massachusetts has Much Better Consumer Protection Laws!
I hate to be so cynical, but I am continually amazed at the constant flow of clients that have been ripped off during the purchase of a used car. This area of my practice is booming. It is not surprising, especially when the profit margins for dealers are so high in the used car market. I used to think that only the small guys sold bad used vehicles and that if you avoided these corner lot vendors that you would be safe. However, the big box dealers are just as bad and probably sell more of these lemons. They buy tons of them at auctions. They clean them, fix only some of the problems, and spray paint the undercarriage so the vehicle imperfections are masked from the unsuspecting consumer. So you are thinking about buying a used car. Should you purchase it in Rhode Island or travel to nearby Massachusetts? In my opinion, the choice is simple, always choose Massachusetts. Now I am sure my comments will not be well received by Rhode Island economic leaders on Smith Hill. However, there is simply no comparison between the laws of both states. Massachusetts has an extremely efficient and well utilized arbitration process administered through the Massachusetts Office of Consumer Affairs and Business Regulation. They do a great job in resolving used vehicle consumer disputes. But most importantly, Massachusetts has one of the best pre- dispute consumer protection statutes in the country. In Massachusetts, an aggrieved consumer who feels that they were somehow cheated or defrauded in relation to a used car purchase can outline their problems in writing and send correspondence to the dealer proposing a reasonable settlement to resolve the concern. The dealer has a duty and obligation to respond to the consumer’s complaint in writing. If they fail to respond and propose a reasonable resolution and you ultimately prevail on your claim in court, then the dealer may be required to pay you treble damages and attorneys fees. This statute totally shifts the dynamic when a consumer voices a complaint. In Rhode Island the dealer will jerk you around and typically ignore you. In Massachusetts you at least get a response to your grievance and if it is not a good one then they ultimately pay for it in Court! Fortunately I handle these types of cases in both Massachusetts and Rhode Island. Christopher M. Lefebvre Esquire 1/12/2016
Don’t Ignore the Court Constable
The scenario is all too commonplace. You fall behind on a debt. The creditor sends you a few collection letters. You overlook or perhaps ignore the notices. Payment is not made. Creditor then commences a lawsuit in the Rhode Island State District Court. Several thousand of these types of lawsuits are filed by debt collectors each year in Rhode Island. What should you do when you receive this type of legal paperwork? First, you need to read the statement of facts raised in the complaint. Most collection lawyers try to keep it short and sweet so the complaint is usually very simple and easy to read. The complaint should inform you of the following: (1) who is actually suing you, (2) what is the nature of the debt, and(3) how much do they say you owe. If you owe the money then there isn’t any urgency to respond. However, if you take No action, a creditor will obtain a court judgment against you and thereafter your assets can be seized or attached to satisfy the obligation. A judgment creditor is allowed to attach wages in Rhode Island. So even if you owe the debt, it is probably worth the investment to retain a lawyer to file an answer in the case and work towards a favorable payment resolution. If you don’t owe the debt or if you are not sure that you do, then it is imperative to respond timely to the complaint. It doesn’t cost a lot of money to hire an attorney to answer this type of case. Under Rhode Island law, you have 20 days to file an answer with the clerk of the court. If you fail to file any answer, you will be defaulted and a judgment confirming that you owe the money as stated in the complaint will be entered by the Judge. Once a judgment is entered against you it is difficult and costly to undo or vacate. I am amazed at the number of people who have good defenses to these types of collection actions, but choose to sit back and do nothing. If you don’t owe the debt or if you are not sure that you owe the obligation then you absolutely should (must) speak to an attorney.
Christopher M. Lefebvre, Pawtucket Rhode Island.
Joint Custody or sole custody in a Rhode Island Divorce
I have been practicing in the Rhode Island Family Court arena for 26 years. Things have not changed much when it comes to the sole versus joint custody debate. It’s amazing the amount time and energy parents, lawyers and the judiciary spend on deciding whether to award joint versus sole custody. Does it really make a big difference in most cases? I am not so sure. I try to be practical and realistic. Whether a parent is awarded joint custody or sole custody in a divorce proceeding does not define the type of parental relationship you are likely to have with your child. Kids want to be involved in a healthy and stable relationship with both parents. The legal labels placed on the custody aspect of a divorce or legal separation are often meaningless in the big picture. Sometimes one parent is more mature and stable warranting an award of sole custody. In this situation, the other parent can still request that he be notified and informed about major issues in the child’s life, hence getting some of the benefits of joint custody without the official label. Joint custody requires both parents to work together and communicate effectively regarding medical care, safety issues, education and religious upbringing of the children. Joint custody prevents one parent after the divorce from unilaterally moving and relocating to another state with the children without permission or advanced notice to the remaining parent. Joint custody assumes that parents can cooperate and work together for the betterment of their children. The overwhelming majority of divorcing parents resolve their custody issues in a dignified and respectful manner. That is a good thing because in my experience, Rhode Island Judges generally favor joint custody. This is not novel and is consistent with many judicial philosophies. Fortunately, 90 percent of Rhode Island divorces go through the court system with very few bumps in the road regarding the custody issue. We wouldn’t have enough courtrooms to handle the cases if the opposite were true.
I am Being Sued in Rhode Island! I don’t understand this paperwork. What do I do?
It is so damn frustrating to see the number of collection lawsuits filed by creditors in Rhode Island against an elderly person that has no assets and lives on meager social security or disability income. Based on my 26 plus years of experience, most elderly folks that become delinquent on their debts inevitably notify the creditor about their limited resources and inability to pay the outstanding debt. In fact, most creditors do a credit report check to verify information before a lawsuit is commenced. The credit report will identify the address of the elderly consumer which usually matches locations specifically identified as elderly housing. The credit reports reveal the date of birth of the person, so the age of the consumer is readily known before the decision to file suit is made. Yet every single year hundreds of lawsuits are filed against the elderly in the Rhode Island state court system. Small claims actions are the preferred course of action chosen by creditors. This is not surprising because the court costs associated with the small claims process are substantially less than the traditional more formal district court procedures. Every year many elderly receive collection lawsuit documentation in the mail that is confusing and often overwhelming for our senior citizens to comprehend. Many turn to the Rhode island Volunteer Lawyer Program for assistance. In the past 5 years, I have participated in several free legal clinics sponsored by this program to help educate the elderly about the collection legal system.So I speak from experience relative to the unquestionable confusion and anxiety that the collection process inflicts upon our elderly citizens. Most times, the filing of a collection lawsuit against an elderly person is a colossal waste of time because most elderly persons, especially those with limited resources and assets, are totally judgment proof under the law. Yes they owe the money, but they have absolutely no realistic ability to pay, hence the judicial system will not force them to pay. Therefore the creditor gets NO benefit from filing its lawsuit. So the bottom line, the creditor wasted time and money filing an unnecessary lawsuit and during the process inflicted grief and aggravation upon our elderly population that is probably least capable and able to handle it. Unfortunately, this merry go round is not unique to Rhode Island. It happens in many courts throughout the country.
Does This Look Familiar?
The mail boxes of many Rhode Island consumers will soon be over flowing with holiday bills. What do you do if you are experiencing difficulties paying these debts? Reaching out to the credit card company and asking for a temporary reduction in the monthly minimum payment is a good starting point. However, many collection departments don’t want to hear it. They want their money and they expect you to send the payment immediately. They don’t want to hear about increased utility costs, the reduction in hours at work or any reasonable explanation for non payment. Just send them the payment and you will be okay. Most people pay their bills on time if able. However, after the holidays there are some consumers that fall behind on their payments. When the payment is not received on time, the relentless harassment begins. The phones begin to ring incessantly. The collector demands immediate payment and warns of the dire consequences if the payment is not made. ( There are No debtor prisons in Rhode Island, so you will not go to jail if you don’t pay a debt!) You explain your circumstances and there is no response on the other end. They tell you that you should borrow money from a family member or friend to satisfy the obligation. You try to get a word in but the script of the collector does not allow for it. You frantically interject, explaining the reason for your non payment. Your pleas for assistance fall upon deaf ears. They call morning, noon, night and all times in between. Different people from the same company call you. You tell them the same story. The phone calls are driving you crazy so you decide to disconnect the telephone. Ah, peace and sanity are restored to your home, but not for long. The collector is on to you. So they start calling neighbors, friends and even your employer hoping to flush out a return call from you. Does this sound familiar? Are you being harassed and treated unfairly by your creditors? Don’t let them abuse you. While Rhode Island is not progressive by any means when it comes to consumer protection, there are a few good laws in place that regulate the practices of debt collectors.If a collector violates the law, then you can sue for damages. If successful, the offending creditor may have to pay your attorneys fees.