Family law is an area that involves family relationships and issues. It can encompass anything from adoption finalization to divorce proceedings. No matter what type of family matters need to be decided, an attorney who specializes in this area of law will make the process a little easier.
An Irvine family law attorney should be well versed in all areas of California family law. Major life changes often take place as a result of the decisions made in these cases, and an experienced, compassionate staff can help clients survive the emotionally taxing process and win the case. It is important to choose a lawyer and firm that will handle each client on an individual basis, taking the time to get to know the client and family and understand the extenuating circumstances of each unique case.
An Irvine family law attorney will be experienced in the various aspects of family law. The most common cases handled in this area are divorce settlements, where a competent attorney is essential to protect the rights of the client and ensure the settlement is fair and reasonable. Divorce is one of the most stressful events a person may ever experience, but the right lawyer can make that difficult time a little easier to handle.
Child custody is often an element of divorce proceedings and can be very emotional and stressful for all parties involved, including the children. It may be difficult to determine where the children should be raised – and who should raise them – when parents split up. When the parents cannot agree on this issue, it is up to the court to decide where the children should live. This is usually done in the “best interest of the child”, although this can be difficult to determine. An experienced Irvine family law attorney can help ensure that a child custody case goes as smoothly as possible and that the rights of his client are firmly protected during the process.
Once child custody is determined, child visitation must also be addressed. This agreement will allow the non-custodial parent a prescribed amount of time with the children so that relationships are preserved in the family unit. The standard visitation order will allow the non-custodial parent to have the children one night a week and every other weekend. It also splits time during holidays and school vacations. If changes need to be made to this standard visitation order, an Irvine family law attorney can make sure those changes are done correctly and with the best interest of his client in mind.
Other areas that an Irvine family law attorney may handle include adoption proceedings, paternity cases, prenuptial agreements and restraining orders. Domestic violence is another stressful situation that may call for the services of a lawyer specializing in the area of family law. When searching for an attorney for any of these cases, it is important to look for a firm that specializes in this area of law to ensure the case is handled in the most professional way. The right attorney will make all the difference in dealing with these difficult situations compassionately and competently.

As a family-law attorney for over 35 years, I can tell you that the secret to a successful divorce is to minimize your involvement with the legal system and to avoid using lawyers who work in it. Where one spouse is a controller abuser — 5 to 10 percent of all cases — this advice does not apply, but for everyone else, going to an attorney as your first step is the worst thing you can possibly do and court is the worst possible place to settle divorce disagreements.

Here’s why.

To get a divorce, you need to tell the court how you will divide marital property and whether there will be spousal support. If you have minor children, you must also tell the court how they will be supported and parented after the divorce — the visitation schedule. That’s all a divorce is about.

If you can be sure your spouse will not come to court to oppose you on any of these matters, all that’s left is some paperwork to get your judgment (decree in some states). This can be done inexpensively in California or Texas by using Nolo’s “How to Do Your Own Divorce” kit. In other states, you can get it done for a few hundred dollars by using a divorce typing service or by shopping your easy case around to various attorneys until someone gives you a fair price.

If your spouse is in the picture and cares about the terms, then you need to work out a written agreement on property, parenting and support. There is software to make this easy for you. Once you have an agreement, finishing your case is now just a matter of paperwork and can be done for a few hundred dollars as described above.

Inability to agree is almost never about the law, almost always about personalities and emotional upset. If you can’t agree, you don’t need a lawyer; you need a mediator or a collaborative law attorney. If you still can’t agree, you don’t need a lawyer, you need an arbitrator.

There are absolutely no solutions for personal problems in a lawyer’s office or in a courtroom. In fact, the legal system is almost certain to make things worse. This is because our adversarial legal system is based on argument and conflict, where one side argues, fights, and struggles to win, to beat the other side. This is a terrible way to settle family disputes. It increases conflict and expense, greatly increases the time it will take you to rebalance your life, and reduces chances for cooperative parenting.

Before you retain an attorney to represent you, remember this simple equation: “The more trouble you have = the more money your attorney makes.” This is not a good basis for a smooth, successful negotiation.

Many attorneys become so frustrated with the legal system that they leave litigation behind in favor of more constructive forms of practice, such as mediation and collaborative law. These are both discussed below.

Better alternatives

Self-help. The things you can do to help yourself are far superior to anything an attorney can do for you. Specific steps you should take depend on your situation and are discussed in detail in my book, Make Any Divorce Better. If you follow my advice, things will get better soon.

Get organized. Before you can get advice, work out an agreement, or decide what you want and what is fair, you need to organize the facts and documents in your case. You will need to do this sooner or later no matter what, so why not do it yourself for free instead of paying a professional hundreds of dollars an hour to help you do it? Inexpensive worksheets are available to help you make this task easy. Doing this work won’t take long and it will help you understand your case, clarify your thinking, and make clear what questions you want to ask of an attorney, if you decide to see one.

Get advice. After you’re organized, if you have questions about the law in your state you should seek advice from an attorney who mostly does family law mediation, very little or no litigation. This way, you are more likely to get neutral, useful advice that will lead to solutions rather than court. Be sure to ask if the laws of your state are such that you can predict what any judge will order based on the facts and issues in your case. In most states, the outcome of any case is highly unpredictable, which is one of the reasons that a settlement by the parties is far superior to taking a chance on what some judge might decide, a stranger who does not have more than a few minutes to try to understand your family and the facts of your case.

Get help. If you and your spouse can’t work out a written settlement agreement on your own, you have two good alternatives.

Mediation. If both sides agree, you sit down with a mediator who will help you work out an agreement. Mediators are trained to help balance bargaining power, keep communications on point and useful, prevent bullying or abuse in the negotiation, and help the parties find common ground and eventual agreement. Mediation is usually very effective.

Many attorneys claim to mediate, but you should look for a family law specialist who is primarily a mediator, someone who does very little or no litigation. There are also some excellent non-attorney mediators but in general these are best used when the issues of your case are limited to personal discord and parenting. If your case involves money, property or support issues, you’d be better off with an attorney mediator who can bring knowledge of state law and local judges into the discussion. Ask if they do that, because many mediators will not bring in legal information even if they could, preferring each party to have separate counsel, something that greatly increases your cost.

Collaborative law. A collaborative law attorney represents you and speaks for you, but they enter into a written agreement with the other side not to go to court to solve problems. Instead, they concentrate on negotiation and mediation. Depending on your case, they might form a team with an accountant, therapist, child specialist, or financial planner. This approach only works if the party and attorney on the other side are willing to enter into this arrangement. Collaborative divorce has a good track record and even with all the professional services it will still cost less than a court battle. This is a new but rapidly growing subspecialty, so there may not be any collaborative lawyers near you. Go on the Internet and search “collaborative law” plus the name of your state or city, or call the local bar or other attorneys and ask if they know of any collaborative divorce lawyers near you. When you talk to one, find out how many other such cases they have conducted.

© 2008 Ed Sherman

Author

Ed Sherman is a senior partner in Sherman, Naraghi, Woodcock & Pipersky and a family law attorney since 1967. He founded Nolo Press in 1971 with How to Do Your Own Divorce in California and forever changed the way legal services are delivered through his many books on divorce, creation of the independent paralegal movement, and co-founding of Divorce Helpline. He has made it his life’s work to help people keep their family problems out of the legal grinder — our adversarial court system.

The intersection between family law, criminal  law  and divorce in RI

Overview

A Rhode Island criminal domestic misdemeanor or felony case is often intertwined with complex issues concerning family law, child custody, child support, visitation, restraining orders and divorce. A Rhode Island Family law case is often intertwined with criminal law issues. In some cases there are three cases or more proceeding at the same time: a criminal case, a complaint protection from abuse and a divorce.  There also may be a dcyf, child support case, paternity  proceeding or juvenile proceeding pending. This article applies to misdemeanor criminal charges.

A misdemeanor is considered domestic if it involves certain family member, a spouse, girlfriend or boyfriend.  An assault, disorderly conduct, larceny and other criminal charges can all be charged as domestic offenses. Therefore, if there is a domestic violence component to an assault case, the case will be charged as a domestic assault rather than just an assault.

In the event that a person is charged with a domestic offense, a no contact order will issue. The No Contact order will preclude the accused from having any contact with the victim, his or her spouse or significant other.

A no contact order often reeks havok upon the family unit especially when the parties are married or have children. The police will remove the accused from his or her residence. This removal creates a whole new set of challenges for the family. In many instances, the accused is the sole support for the family. Also, there are often visitation issues that arise immediately. The accused often wants to visit his or her children.

The victim usually has her own opinions which may or may not include the desire for the accused to visit with the children. Furthermore, the accused often has the need and desire to obtain his or her personal belongings such as clothes, toiletries, tools, work items etc.Also, the victim may seek another restraining order from the family Court or District Court and may seek child support.

This article addresses the above mentioned complex  issues and answers the following questions:

Should I get a  Rhode Island Criminal  lawyer  or Divorce lawyer to represent me in a criminal law or divorce case in Rhode Island?

An attorney is needed but not required. The old adage is that a person who acts as their own attorney has a fool for a client. Lawyers / attorneys are familiar with the legal process, the law , the judges and the legal system. In a criminal case you have a right to a free criminal lawyer from the Public Defender if you meet the income and eligibility requirements.

What is the difference between a domestic offense and a non domestic offense?

Any offense which is charged as a domestic offense is more serious than the same charge charged as a non domestic offense. Under Rhode Island (RI) law, a person who is found guilty of a domestic offense or who takes a nolo contendere plea with a  sentence of filing, probation or suspended sentence must take batterers intervention classes. If found guilty of a domestic offense or if there is a plea bargain then a no contact order will enter automatically unless the victim is able to drop the no contact order.

A second conviction for a domestic offense in Rhode Island may lead to a minimum ten days at the aci! A third conviction for a domestic offense may be charged as a felony. Keep in mind that not all plea agreements constitute a criminal conviction. In RI any sentence with a suspended sentence,  guilty finding, plea of guilty, fine or period of incarceration constitutes a criminal conviction. A nolo contendere plea  with probation or filing with court costs does not constitute a conviction in Rhode island! A domestic conviction also will looks worse then a non domestic conviction on the accused’s record when seeking employment opportunities.

Also, sentencing is usually more harsh for domestic cases then a non domestic offense. Furthermore, in domestic cases a one year filing cannot be expunged at the end of the year. There is an additional two year waiting period to expunge a domestic filing. Please see my other article concerning Rhode Island misdemeanors for a comprehensive explanation of a one year filing in Rhode Island.

Upon entering a plea or being found guilty of a crime with domestic implications then the defendant will be ordered to complete a batterer’s intervention program which involves attending classes. The defendant can also be ordered to pay restitution to the victim if applicable and obtain substance abuse or mental health counseling. Failure to attend the Batterers classes, failure to pay restitution or failure to attend counseling could be considered a violation of probation, suspended sentence or a filing.

What is a no contact order?

In Rhode Island, A “no contact order” means that the defendant is precluded from having any contact and or communication with the victim or the person under the protection of the no contact order. This includes but is not limited to letters, emails, text messages or messages delivered through a third party.

In other words if a person is under a no contact order and sees the victim in public they must leave the area immediately and not acknowledge the victims existence. A person cannot even say “hi” if they walk by the victim by chance on the street.

A person can be arrested under Rhode Island law for violating a no contact order even if the victim initiates the contact and calls the defendant. A person can be charged with breaking a no contact order even if invited by his wife to come back to the marital home.

Dropping / dismissing the no contact order

The police cannot drop a no contact order. Only a judge can drop a no contact order. The victim can attempt to drop the no contact order at the arraignment. Prior to approaching the judge at the arraignment, the victim must speak with the domestic violence counselor at Court. The judge may dismiss the no contact order at the arraignment.

However, in the event that the alleged abuse is severe or there is a documented history of abuse then the judge may refuse to drop the no contact order. The no contact order may not be dropped by the judge if the victim states that she is still afraid of the accused.  It is much easier to drop the no contact order  at the pretrial hearing then it is to drop it at the arraignment. Some judges are hesitant to drop the no contact order at the arraignment. The judge will typically ask the police who are present at the arraignment whether they have any objections to the no contact order being dropped

Can the victim dismiss the no contact order after the arraignment but before the pretrial conference?

In the event that the victim wants to drop the no contact order after the arraignment but before the pretrial the victim can go to the clerk and ask that the file be brought in front of the judge. After conferring with the domestic advocate the judge will rule on whether the no contact order will be dropped.

Can the no contact order be dropped at the pretrial conference?

The victim who wants to cancel the no contact order will have another opporunity at the pretrial conference. The pretrial conference is typically scheduled a couple of weeks after the arraignment. At the pretrial conference, the victim can approach the judge and again seek to have the no contact order dropped

Will the criminal judge in District Court resolve visitation or custody issues?

No.

The criminal Court will not get involved in any family related issues such as child custody, child support, alimony ,paternity, relocation out of state, equitable division of marital property, visitation, payment of marital bills, payment of mortgage, payment of credit cards, disposition of the marital real estate, etc.  Those issues are the province of the Rhode Island Family Court not the District court !The District Court is where criminal  misdemeanor cases are heard.

The Court has the power to order restitution to the victim for any actual damages suffered by the victim as a result of the crime such as destruction of property, medical bills, stolen funds etc.

The District Court in a criminal case cannot be involved in setting visitation or dealing with issues concerning divorce or custody of the minor children. The Rhode Island Family Court is the proper Forum for dealing with issues related to divorce and child custody such as: child support, visitation, financial restraining orders and issues concerning marital property, marital real estate and debt.

Obtaining personal belongings (property) when there is a no contact order.

There are several proper ways for an accused to obtain his / her personal belongings when there is a no contact order in effect. Personal belongings usually consists of personal property such as clothes, sneakers, uniforms, personal effects etc.  The accused can contact the police department where the victim resides and seek to make arrangements to pick up personal belongings. The police will often escort the person to the home. The downside of this arrangement is that the police often are in a rush and enforce a severe draconian time limit.

If the accused has a private attorney, he can contact the victims attorney who can contact the victim to make arrangements . This can have its pitfalls because  the victim may be hostile  or  the victim may have no interest in negotiating

The accused can attempt to arrange to get his belongings through a third party. The accused must be careful not to violate the no contact order.

When does a no contact order in Rhode Island (RI) expire?

A no contact order expires when the sentence period is finished. A no contact order also expires if the case is dismissed or the defendant is found not guilty. The no contact order expires if the judge terminates the no contact order at the request of the victim.

Be careful because there may also be another restraining order issued as a result of a divorce or Family Court matter or a District Court restraining order!

What happens if a person on bail, probation, filing or suspended sentence violates a no contact order?

A person who is on probation, bail or a probation attached to a suspended sentence must be even more vigilante in order to not violate the no contact order.

A violation of a no contact order is a crime in itself which is also a violation of the conditions of probation, filing or bail . A person on probation or bail can be held at the ACI if they are accused of violating a no-contact order. For example, if a person is on probation or bail, a single phone call made by the defendant to a victim under the protection of a no contact order probably means a minimum of ten 10 days in jail at the ACI.

A probationary period  or filing period is a time of great risk for a defendant and a defendant must be careful to stay out of trouble! A person must be even more vigilant if there is a no contact order, order protection from Abuse from The Rhode Island Family Court or restraining order in effect. A violation of a no contact order or a Family Court restraining order is a violation of probation.

A person with a suspended or stayed sentence faces the most potential risk regarding violation of probation in RI.  As a result of a probation violation of violating a no contact order,  a person with a suspended sentence could be ordered to serve the remainder of the suspended sentence at the adult correctional institution (ACI)

For Example, a person with probation may get themselves deeper into trouble when they resume communications or contact with their wife or girlfriend despite the fact that a no contact order is in effect. If there is an argument or allegations of domestic assault or abuse, the police may arrest the person and hold him/her at the aci as a probation violator as well as new charges for domestic assault and violation of a no contact order or restraining order.

Rhode Island Family Court restraining orders: (1) Complaints Protection from Abuse and (2) ‘Civil restraining orders’ and how they relate to criminal law

 A defendant must Be careful! There may be a separate order protection from abuse restraining order that issued from Rhode Island Family Court as a result of a complaint protection from abuse. The Family Court has jurisdiction to issue  an  order protection from abuse restraining orders for up to three (3) years. The Family Court can issue restraining orders for persons who are married, are divorced, are family members or who have children in common as well as other jurisdiction set forth in the statute. There may also be a restraining order issued by a Court of another state or another Court

A protection from abuse case is not a criminal case. Violation of Family Court Complaint protection from Abuse restraining order is a crime in itself and also may constitute a violation of probation, bail and violation of conditions of a filing.

There are two types of Family Court restraining orders, “Complaint Protection from Abuse” and a civil restraining order. Both of these types of Restraining orders can be in addition to divorce proceedings.

Is Violating a Family Court restraining order which is not an order protection from abuse a crime?

No. A violation of a  Family Court restraining order which is not a Complaint Protection from Abuse is  not a crime. Violation of this type of order is punishable by contempt. However, If the restraining order contains language that violation of the order is a crime then there might be criminal implications.

Civil restraining orders are not nearly as effective as Complaint Protection from Abuse restraining orders. Civil Restraining orders are typically part of a divorce.

In a complaint protection from abuse case in Rhode Island can the Court get involved in Child custody, visitation and child support.

Yes. In a Complaint Protection from Abuse case, the Family Court can award temporary child support, visitation, and temporary custody of the children. The Court can also award visitation and in some instances may order supervised visitation. The Court can order that the Defendant vacate forthwith and remain out of the household. The Court can also order that a person take batterers classes or drug and alcohol counseling. The Court can order drug and alcohol testing. The Court can also order the Defendant to surrender possession of all firearms / guns to the Police department.

Is a violation of a Rhode Island District Court Restraining order a crime?

Yes.   When should a Restraining orders  be filed in District Court?

If the restraining order is against a current boyfriend or girlfriend or an ex boyfriend or girlfriend who you had a substantive dating relationship within the prior year but you have no child with, then Rhode Island District Court is the proper Forum.

If you have a child with your current or ex boyfriend/ girlfriend then the restraining order should be filed in the Family Court.  A restraining order against a current roommate can be filed in District Court.

RI Superior Court Restraining orders:

If you are seeking a restraining order against a prior friend, neighbor, landlord or anyone else then the restraining order must be filed in Superior Court. Violation of a Superior Court restraining order does not constitute a crime. Violation of a Superior Court Restraining Order is punishable by contempt which could potentially lead to a period of incarceration.

What is the difference between a restraining order and a no contact order?

A no Contact order is an order issued as a result of a criminal charge. A no Contact order issues at an arraignment either at the police station or at Court. Violation of a no contact order is a crime in itself and may constitute a violation of Probation or a filing. A no contact order expires when the case is over (dismissal or not guilty finding) and at the end of any probation, filing or suspended sentence.

A Restraining order stays in effect until the date designated on the restraining order. A Restraining order will stay in effect even if the defendant is found not guilty or the criminal case is dismissed.

If there is a no contact order protecting me should I also obtain a restraining order ?

It Depends. A no contact order expires when a case is dismissed; a person is found not guilty or after any sentence expires.

The No Contact order will expire when a probationary period or filing or suspended sentence is over. If you feel you need protection in case the no contact order expires and are in fear of the person then you may consider seeking a restraining order in addition to the no contact order.

If there are issues concerning child support and visitation then you may want to seek a restraining order in addition to a no contact order!

Resolving issues concerning custody and visitation of children as well as divorce and family related matters when a criminal case is pending:

If your spouse or girlfriend or boyfriend is preventing you from visiting or talking to your child as a result of a criminal case or no contact order then you may need to file for divorce or a separate action for custody or visitation in Family Court.

The Family Court can set visitation and child support as part of a Complaint protection from abuse restraining order. In some instances when domestic violence is alleged or there are issues concerning alcohol, drug abuse or mental health then the Family Court may order supervised visitations. These Supervised visitations may occur at the Providence Family Court or may be supervised by a third party.

Can the defendant testify in The Complaint protection from abuse hearing when he or she has a pending criminal charge? 

This is an important determination for the defendant. The defendant must consult with his / her attorney and weigh the pros and cons of testifying in the hearing. A defendant in a criminal case has the right to take the Fifth Amendment and not testify in the case. A defendant in a complaint protection from abuse case must be careful because any testimony in the abuse case can be used against the person in the criminal case. The defendant can seek to continue the abuse case until the criminal case is resolved.

What County in the Rhode Island Court system will criminal law and divorce cases be heard?

Al the counties in Rhode Island (Providence, Kent, Newport and Washington County) follow the same general rules and procedures.   Providence County includes East Providence, Providence, Cranston, Cumberland, Barrington, Bristol, North Smithfield, woonsocket and other towns and cities. Kent County includes Warwick &  North kingston, East Greenwich as well as other towns. Newport County includes  Newport, Middletown & Portsmouth. Washington County includes South Kingstown, Wakefield etc.

Rhode Island Attorneys legal Notice per  RI Rules of Professional Responsibility:

The Rhode Island Supreme Court licenses all lawyers  in the general practice of law, but does not license or certify any lawyer / attorney as an expert or specialist in any field of practice.

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