If husband and wife own real estate in Rhode Island and are getting divorced and have no minor children then there are many possible dispositions concerning the marital domicile.
The parties agree to sell the property
There may be negotiations during the Rhode Island (RI) Divorce concerning one spouse buying out their husband or wife's share in the property. The parties can agree to a single appraisal or hire their own appraisors. Some parties simply agree to the fair market value and do not need an appraisal. If husband and wife's appraisals are different then they can negotiate the fair market value of the property. After determining the fair market value of the property, the parties should look at all mortgages owed and determine the equity of the property. The equity in the property is the difference between the fair market value and all liens and mortgages. This article only pertains to divorce and family law in Rhode Island (RI).
The equity in the property will determine what amount the person who is refinancing should pay the other party to buy out their equitable share. At the refinance closing, husband or wife may deed the property by quitclaim deed. Upon transfer of the deed, the spouse will receive their agreed upon share of the marital equity.
If the parties cannot reach an agreement and there are no children, the property will probably be ordered to be sold at the Rhode Island divorce trial.
In some cases, one spouse may agree to take less then half of the equity in the property. This could be done for numerous reasons including: disparity in earning capacity, admissions of an affair or infidelity, offsets from other assets etc.
Parties may also agree to a multitude of different scenarios which might include one party living in the marital domicile and refinancing in the future to buy out the other party's share. This usually involves the party who remains in the house granting a mortgage to the other spouse.
There is really no limit to the types of agreements that parties can reach and it is possible that the parties could trade off assets in which one spouse receives a different asset such as a retirement account in exchange for the other party obtaining title to the real estate. Be careful becuase there may be federal tax implications to such tradeoffs!
This can get tricky because a transfer of the property without a current refinance will not take the person who deeded the property name off of the mortgage and promissory note.The person who deeded the property without refinance must make sure that the other party actually pays the mortgage, taxes and insurance on a timely basis otherwise their credit could be effected.
You should seek legal counsel from a Rhode Island (RI) divorce and family law Lawyer / Attorney concerning all of the possible scenarios.
Division of the marital domicile when parties have minor children.
If both parties agree that one spouse should reside in the marital domicile with the minor child / children they can agree to a deferred sale of the property. The person who is not living in the house with the children often receives a mortgage to secure the rights to receive money in the future.
If the parties cannot resolve this issue the court will determine whether or not it is in the best interest of the minor children to defer the sale of the marital domicile. The court must look at whether or not the parent who is residing in the marital domicile can afford the mortgage, taxes, insurance and upkeep taking into account any child support, alimony or income that the person receives. The RI family Court must also determine how long the sale of the house should be deferred in the best interest of the children.
If the parties cannot determine issues of child custody, visitation and physical placement then the issues become a lot more confusing.
Legal Notice per Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers and attorneys 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.
David Slepkow is a Rhode Island lawyer/ attorney concentrating in divorce, family law, restraining orders, child support, custody and visitation. David Slepkow has been practicing for over 12 years and is licensed in Rhode Island , Massachusetts and Federal Court. Free initial consultations. Credit Cards Accepted.
You can contact attorney David Slepkow by going to http://www.slepkowlaw.com or by calling him at 401-437-1100.
If husband and wife own real estate in Rhode Island and are getting divorced and have no minor children then there are many possible dispositions concerning the marital domicile.
The parties agree to sell the property
There may be negotiations during the Rhode Island (RI) Divorce concerning one spouse buying out their husband or wife's share in the property. The parties can agree to a single appraisal or hire their own appraisors. Some parties simply agree to the fair market value and do not need an appraisal. If husband and wife's appraisals are different then they can negotiate the fair market value of the property. After determining the fair market value of the property, the parties should look at all mortgages owed and determine the equity of the property. The equity in the property is the difference between the fair market value and all liens and mortgages. This article only pertains to divorce and family law in Rhode Island (RI).
The equity in the property will determine what amount the person who is refinancing should pay the other party to buy out their equitable share. At the refinance closing, husband or wife may deed the property by quitclaim deed. Upon transfer of the deed, the spouse will receive their agreed upon share of the marital equity.
If the parties cannot reach an agreement and there are no children, the property will probably be ordered to be sold at the Rhode Island divorce trial.
In some cases, one spouse may agree to take less then half of the equity in the property. This could be done for numerous reasons including: disparity in earning capacity, admissions of an affair or infidelity, offsets from other assets etc.
Parties may also agree to a multitude of different scenarios which might include one party living in the marital domicile and refinancing in the future to buy out the other party's share. This usually involves the party who remains in the house granting a mortgage to the other spouse.
There is really no limit to the types of agreements that parties can reach and it is possible that the parties could trade off assets in which one spouse receives a different asset such as a retirement account in exchange for the other party obtaining title to the real estate. Be careful becuase there may be federal tax implications to such tradeoffs!
This can get tricky because a transfer of the property without a current refinance will not take the person who deeded the property name off of the mortgage and promissory note.The person who deeded the property without refinance must make sure that the other party actually pays the mortgage, taxes and insurance on a timely basis otherwise their credit could be effected.
You should seek legal counsel from a Rhode Island (RI) divorce and family law Lawyer / Attorney concerning all of the possible scenarios.
Division of the marital domicile when parties have minor children.
If both parties agree that one spouse should reside in the marital domicile with the minor child / children they can agree to a deferred sale of the property. The person who is not living in the house with the children often receives a mortgage to secure the rights to receive money in the future.
If the parties cannot resolve this issue the court will determine whether or not it is in the best interest of the minor children to defer the sale of the marital domicile. The court must look at whether or not the parent who is residing in the marital domicile can afford the mortgage, taxes, insurance and upkeep taking into account any child support, alimony or income that the person receives. The RI family Court must also determine how long the sale of the house should be deferred in the best interest of the children.
If the parties cannot determine issues of child custody, visitation and physical placement then the issues become a lot more confusing.
Legal Notice per Rules of Professional Responsibility:
The Rhode Island Supreme Court licenses all lawyers and attorneys 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.
David Slepkow is a Rhode Island lawyer/ attorney concentrating in divorce, family law, restraining orders, child support, custody and visitation. David Slepkow has been practicing for over 12 years and is licensed in Rhode Island , Massachusetts and Federal Court. Free initial consultations. Credit Cards Accepted.
You can contact attorney David Slepkow by going to http://www.slepkowlaw.com or by calling him at 401-437-1100.
Issues concerning the marital domicile and real estate are often the biggest issues that divorcing couples must resolve.The issues of real estate and divorce are often intertwined with complex issues concerning child custody, child support, marital division of assets, marital debt and other issues related to a divorce. This article only applies to Rhode Island Divorce. http://www.slepkowlaw.com/divorce.htm
1.) Real Estate and temporary use and possession of the marital domicile during the pendency of the divorce.
While a divorce is proceeding in court, there are several potential scenarios concerning the disposition of the real estate: (Please consult Rhode Island Divorce lawyer / attorney David Slepkow http://www.slepkowlaw.com 401-437-1100 concerning your legal options)
A.) Husband and wife reside together while the divorce is pending with or without children.
In many instances, husband and wife live together while the divorce is pending. In some cases, husband and wife live together out of financial necessity because the parties cannot afford to live separately. Other divorcing couples live together because they believe it is in the best interest of the child /children. Some people live together because both husband and wife refuse to leave the marital domicile.
If husband and wife are living together while the divorce is pending, they often reach an agreement as to who will pay the mortgage, taxes, insurance and other real estate related expenses.
In the event that husband and wife cannot reach an agreement then both parties have the right to file motion for temporary orders, asking the court to intervene and determine who will pay the mortgage taxes, insurance, utilities and other expenses for the marital domicile.
If the parties are not civil towards each other there is constant arguing or there is domestic violence / abuse it may become unworkable for the parties to continue living together. If either party is abusing drugs, alcohol or gambling then cohabitating during the divorce process may be unworkable. Either party has the right to file a motion for temporary orders asking for exclusive use and possession of the marital domicile while the divorce is pending.
If one of the spouse has no income and no ability to earn income then it is possible that the spouse who has income or earning capacity could be ordered to pay 100% of the expenses for marital domicile while the divorce is pending. This is especially the case if the unemployed spouse has minor children living at home.
One of the risks of living together while the divorce is proceeding is the that other party will file a restraining order or a complaint protection from abuse.
B.) Husband or wife vacates the marital domicile and there are no children.
If husband or wife voluntarily leaves the marital hime and the other party is residing on the premises then the parties have two options:
1.) Husband and wife reach an agreement, or
2.) Husband or wife files a motion for the court to determine who pays for the house. The person who vacated the house may be ordered to contribute towards the mortgage taxes, insurance and upkeep etc., if any.
If the parties cannot agree then either party can file a motion for temporary orders seeking contribution towards the mortgage taxes, insurance, and upkeep for the marital domicile. The Rhode Island Family Court will then make an equitable determination of who should pay the mortgage taxes and insurance for the marital domicile. How the Family Court decides this issue, depends on several factors including perhaps most importantly, the income and earning capacity of each of the parties. One Judge in the Rhode Island Family Court consistently rules that the spouse remaining in the marital domicile must pay the 1st $850.00 of the mortgage as rent and the parties split the remaining mortgage taxes and insurance 50/50.
C.) One spouse vacates the marital real estate, while the other spouse resides in the marital real estate with a child or children.
The parent who has temporary physical placement (physical custody) of the child/children will have the right to receive child support as well as the potential to obtain contribution to the mortgage taxes, insurance, and upkeep for marital domicile.
If the parties can agree to the correct child support amount and the contributions towards the mortgage, taxes, insurance for the property then a motion for temporary order may not be necessary. http://www.slepkowlaw.com/child-support-articles.htm
If the parties cannot agree, the court will determine the correct child support amount using the Rhode Island Child Support Guidelines. The cost of daycare and medical expenses is factored into the Rhode Island (RI) child support guidelines. The court may also order that the spouse who vacated the property contribute to the mortgage, taxes and insurance for the marital domicile.
The courts main purpose is to preserve the marital domicile until the divorce trial can be heard. The amount of the child support and contributions to marital domicile will be highly dependant on the income and earning capacity of the parties as well as a particular circumstances of a case. If the spouse who lives with the children has no job and no ability to earn income and no earning capacity it is possible that the other spouse may be required to pay over and above the child support amount to maintain the status quo so that the other spouse is able to maintain the marital domicile. The primary goal of a Rhode Island Family Court Judge is to preserve the marital assets until the divorce can be heard on a full trial on the merits. Over until the case is settled.
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 as an expert or specialist in any field of practice.
David Slepkow is a Rhode Island (RI) lawyer concentrating in divorce, family law, child support, alimony, adoption, custody and visitation. David has been practicing for over 11 years and is licensed in rhode Island , Massachusetts and Federal Court.
You can contact East Providence Rhode Island Family and Divorce Lawyer David Slepkow by calling him at 401-437-1100 or visiting http://www.slepkowlaw.com
Personal Injury - Premises Liability - Slip & Fall Accidents In Rhode Island by A RI Lawyer-Attorney In Rhode Island, Premises liability is the area of Personal Injury law, which attempts to hold a real estate owner or the person in possession of real estate liable as a result of an accident causing injuries to a person who was using the property. A premises liability case is a type of personal injury case. The broader term of Premises liability also encompasses "slip and fall" or "trip and fall" personal injury accidents. [April 23, 2008 10:44:28 am]
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Rhode Island Litigation- Lawsuit FAQS Written By a Rhode Island (RI) Attorney RE- RI LAW Rhode Island litigation-Frequently asked questions and answers written by an experienced Rhode island litigation and personal injury attorney. The following questions are answered in this article- 1) I believe that I have been wronged by another individual or entity, what should I do next? 2) How do I commence a civil lawsuit? 3) What should I do if I am served with a Summons and Complaint? 4) How much will it cost to hire an attorney? 5) How long before the lawsuit will be finished? [March 21, 2007 07:46:59 am]
Rhode Island Elder Law- Protecting Home From Nursing Home Costs- FAQs for Seniors Frequently asked questions answered by a Rhode Island (RI) elder law attorney / lawyer concerning issues important to the elderly and senior citizens such as nursing home costs and liens, living wills, estate planning etc. This article includes answers to the following frequently asked questions: 1) What documents should I have in my estate plan? 2) What is a Living Will? 3) Will the State take my house if I go into a nursing home? 4) What steps should I take to protect the house in case of nursing home costs? 5) Are there any means for me to retain control of my assets while simultaneously protecting them from the reach of nursing homes? 6) What law will govern the strategies and state determinations? [March 20, 2007 09:15:58 am]
Rhode Island Zoning, Planning And Land Use Law FAQS - Building Permits, Additions, In Law, Variance Rhode Island zoning, planning and land use frequently asked questions prepared by a Rhode Island lawyer concerning the following frequently asked questions: Do I need a building permit to construct a small addition to my house or a deck around my above ground swimming pool? My house is in a residential zone. Are there any problems that I need to consider in planning an addition or an accessory structure? I have a single-family house located in a single-family zoning district. My mother-in-law wants to move in with me. Can I add a second kitchen to my house so that she will have the ability to be independent? If I want to build a two-family in a single-family zone or build an office in a residential zone, what do I do? I have extra land that I am not using on the side of my house. Can I sell this land to a builder? [March 16, 2007 02:26:27 pm]
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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 or attorney as an expert or specialist in any field of practice.
Under what circumstances should a prenuptial agreement be considered in Rhode Island (RI)?
Premarital agreements are not right for every couple! Prenuptial agreements are most prevalent in second marriages. They are especially prevalent in first or second marriages when one or both of the parties have children of a prior marriage or relationship. They are also prevalent when a future spouse has a child or children from a prior relationship.
This article only pertains to prenuptial agreement drafted in Rhode Island or that will be interpreted by Rhode Island law.
If you have any questions please call Rhode Island Divorce Lawyer, David Slepkow at 401-437-1100 or visit his website at www.slepkowlaw.com
For a list of 50 legal articles written by David Slepkow concerning Rhode Island law please visit www.slepkowlaw.com/ri-law.htm
Is there any difference between a prenuptial and a premarital agreement?
Premarital agreement, antenuptial agreement and prenuptial agreement are all different terms for the same document and are used interchangeably.
Preserving assets for children.
When a person has a child from a different relationship and is considering a marriage, he / she often wants to insure that his / her child will inherit hard earned assets. A person wants to insure that their assets will go to their children rather than their new spouse or the new spouses' children.
Many parents fear that their hard earned assets that were acquired before the marriage will go to their new spouse or his / her children upon divorce or death rather then their own child.
Estate planning can be a crucial element of a good prenuptial agreement!
Without protection through estate planning, will, trust or a prenuptial agreement, a substantial portion of your separate assets may go to your new spouse upon divorce or upon your death. Estate planning can also be a very important element in premarital agreements. I strongly advise that you retain a Rhode Island (RI) Divorce and Family law attorney / lawyer to draft or represent you concerning the execution of the premarital agreement.
Prenuptial agreements are often entered into when either husband or wife has acquired significant premarital "separate" property / assets. In many cases, one of the spouses will have a more substantial estate then the other spouse.
Be careful! The suggestion of a Prenuptial can be an emotionally charged issue!
Tread very carefully when suggesting a premarital agreement with your future spouse especially in a first marriage!
Often, your future husband / wife will be very upset with the suggestion that they should sign a premarital agreement. This is a very delicate subject. It could potentially imperil the entire relationship. Some people feel that premarital agreements run contrary to the marriage covenant. Others are against prenuptials because they believe that in essence, it is planning for divorce when marriage is ideally forever.
Negotiate the prenuptial well in advance of the wedding!
It is a very bad idea to suggest a prenuptial at the last minute. You should propose the prenuptial well in advance of the wedding. The last thing you want to do is negotiate a complex contract a week or two before the wedding. It can be unseemly to be contacting a lawyer / attorney right before the wedding and can put unfair pressure on your spouse.
What are standard provisions put into a simple prenuptial agreement?
The most standard prenuptial agreements simply protect a person's separate premarital property. In many instances the parties waive all right title and interest to the premarital property of the other party. The prenuptial agreement should also address issues concerning the appreciation in value of premarital property during the course of the marriage. The prenuptial should address additions to the premarital property after the wedding. The prenuptial should also address when premarital property is used to purchase other property during the course of the marriage.
The most simple, prenuptial agreements simply state that all property that the parties owned prior to the marriage would be their separate property free and clear of all claims of the other party. In this scenario any property acquired after the marriage would be marital property subject to equitable distribution. This type of prenuptial should also address the issue of the increase in value of premarital property.
Some prenuptial agreements go even farther and state that property acquired in an individuals name during the course of the marriage would be separate property that the other party would have no rights to upon divorce or death. The enforceability of such a provision is tenous at best.
Prenuptial agreements can essentially state any provisions that the parties desire and the law allows.
What are the most important elements of a good antenuptial agreement?
The most important facet of a good premarital agreement is clarity. The second must important facet of a prenuptial is complete and full disclosure.
Both parties must disclose all assets and liabilities.
If the parties have not disclosed material and substantial assets and liabilities, the prenuptial may not be enforceable. Husband and wife should attach a financial statement as an exhibit to the prenuptial. If the parties do not properly disclose their assets and liabilities, then it is questionable whether the parties agreed to anything because they do not know what they were agreeing to.
Are both the prospective wife and husband required to get an attorney / lawyer?
No. The parties are not required to have an attorney / lawyer to review the prenuptial in Rhode Island(RI). Prenuptial agreements are still valid and enforceable even if one of the parties had an attorney draft the agreement and the other party did not have a lawyer review the agreement.
Defining Separate Property:
The parties need to define what constitutes separate property and whether separate property includes additions, increase in value (appreciation) of separate property. The parties need to address the reinvestment of the separate property into another asset during the course of the marriage.
Retirement Accounts, 401k, 403(b), pensions
You may consider a provision concerning 401k, 403(b) , Stock Options, Pensions, Retirement Accounts as well as the increase in value, additions and or reinvestments of such retirement accounts after the marriage. In order to waive marital rights to certain retirement accounts you may need a provision under IRS guidelines agreeing that your spouse will sign appropriate forms to waive or relinquish spousal benefits.
Waiver of Alimony
Some premarital agreements require one or both spouses to waive their rights to alimony or temporary alimony. This can be a crucial portion of a prenuptial agreement. This is often also the most contentious area of negotiations.
Real estate
Some premarital agreements address issues concerning Real Estate especially separate real estate of the parties. You want to discuss with your lawyer whether or not your spouse will be agreeing to waive their right to elect against the will of the other upon death and waive the statutory life estate. This is very important in Rhode Island. You may want to consider putting the real estate in trust. This is all very complicated and should not be done without an attorney
Jointly Held - Marital property.
You need to consider whether you want the agreement to include how marital property will be divided upon divorce. Some people agree that all marital property will be divided 50/50 upon divorce or separation. Other agreements are silent on this issue.
Choice of Law:
The parties should state under which law the prenuptial agreement should be interpreted. If the parties reside in Rhode Island then they should have Rhode Island law apply in the future.
Debt
Will each party be responsible for separate premarital debt. Who will be responsible for joint premarital debt? Will the parties agree to split joint marital debt 50-50? Who will pay individual / sole debt incurred during the marriage?
Life Insurance
Is either party agreeing to maintain a life insurance policy for the benefit of the other spouse? This is often done as a way to make sure the spouse will collect upon death even if the person's estate plan otherwise excludes the spouse. Will the life insurance be required to be maintained after the divorce or separation?
Gifts
Who will get to keep gifts between the parties? What will happen to joint gifts or gifts given to one person but not the other. Who will get the engagement ring, wedding band, jewelry, art etc?
Severability clause
Most good premarital agreements contain a severability clause such as the one set forth here: "SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a Court of competent jurisdiction, this Agreement shall be construed as if such illegal, invalid or void provision were not a part hereof and the validity of the remaining provisions shall be unaffected thereby."
Legal fees upon divorce. Will either party be required to pay the others legal fees as part of the divorce?
Some prenuptial agreements address the issue of legal fees in a potential divorce.
Acknowledgments of counsel or the opportunity to retain a lawyer and acknowledgment that agreement is freely and voluntarily entered into.
It is important that the parties acknowledge that they carefully read the agreement, that they signed it freely and voluntarily and that they believe that the agreement is fair and equitable to them.
Many agreements contain a paragraph similar to this: ACKNOWLEDGMENT. The parties have, during a series of conferences between themselves, mutually agreed upon the arrangements set forth herein. Each party hereto declares that he or she has had the opportunity to seek independent legal advice by counsel of his or her own selection and that each is satisfied as to this agreement's fairness. The wife has retained Attorney X to represent her. The provisions of this Agreement and their legal effect have been fully explained to the parties and each party acknowledges that he and she believes the Agreement is fair and equitable, and is freely and voluntarily entered into.
Integration and modification provision.
It is crucial that there are no side agreements or verbal agreements outside of the four corners of the documents. An integration clause is an important facet of a prenuptial agreement.
Cooperation provision
A Cooperation provision is essential to a good antenuptial agreement.
"COOPERATION. The parties hereto shall at any time, and from time to time, execute and deliver all such deeds and other documents as may be necessary, and do all such things as the other of them, his or her heirs, executors or administrators shall reasonably require for the purpose of giving full effect to this Agreement. Each of the parties hereto shall release and quitclaim unto the other, or to such others as he or she respectively may request, all of his or her rights of curtesy or of dower. It is the intention of this clause to permit and empower each of the parties hereto to deal with his or her own separate property now owned or hereafter acquired, in all respects, except as limited by this Agreement, as if each party hereto were single."
Disclosure Provision
"DISCLOSURE. Each of the parties has made a full disclosure to the other of all property, assets and liabilities owned or otherwise held by each respective party, as listed in Exhibits "A," "B," "C," and "D" attached hereto. The parties hereby acknowledge that they are aware that in the future the financial circumstances of either or both of them may be altered in some way, whether substantially, directly, indirectly or otherwise."
Notary and Attestation of Counsel.
The agreement must be signed in front of a notary and if the parties both have attorneys they may want to include an attestation of counsel paragraph that both lawyers sign.
Article by David Slepkow 401-437-1100
David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, restraining orders, child support, personal injury law, child custody and visitation. David has been practicing for over 10 years and is licensed in Rhode Island, Massachusetts and Federal Court. Free initial consultations. You can contact attorney David Slepkow by going to http://www.slepkowlaw.com or by calling him at 401-437-1100.
Rhode Island divorce, family law, criminal, child support, litigation and personal injury law lawyer, David Slepkow has been practicing law for ten years. You can contact Rhode Island attorney David Slepkow at 401-437-1100 for a free initial consultation. http://www.slepkowlaw.com
David Slepkow is a lawyer and partner at Slepkow Slepkow & Associates, Inc. in East Providence, Rhode Island. Slepkow Slepkow & Associates, Inc. was established in 1932 and is currently celebrating its 75th anniversary!
Attorney, David Slepkow is a member of the Rhode Island (RI) and Massachusetts (MA) Bar Association and the Bar for the Federal Court First Circuit, District of Rhode Island.
David offers free initial consultations and accepts all major credit cards. If necessary, David can arrange weekend and evening consults. David never charges any fee for personal injury case, automobile / auto / car accidents and slip & fall cases unless sucessful.
David Slepkow is a member of the Family Law Inns of Court and the Rhode Island Trial Lawyers Association.
He Practices in the following areas of law: divorce, family law, child custody, child support, visitation, out of state family law matters, adoptions, paternity, evictions, landlord tenant matters, criminal law, restraining orders, no contact orders and domestic violence law. David also practices, personal injury, slip and fall, serious accidents, motorcycle accidents, premises liability as well as Superior Court Litigation. David Slepkow handles dui / dwi / drunk driving charges and breathalyzer refusal cases.
Even if David can not help you with your problem he will be happy to refer you to another attorney. You can also visit David's website for answers to frequently asked questions or to obtain more information. David is always willing to answer questions on the phone.
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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.
In Rhode Island most buy and sell agreements (purchase and sales agreements) for single-family homes are on a form prepared by the Rhode Island Association of Realtors. The Purchase and Sales Agreement is a very important legal document that typically sets forth the sales price, time, date and place of the residential real estate closing, contingencies based on financing, as well as many other provisions.
You may attempt to negotiate modifications to this agreement and are not obligated to sign the standard form. Prior to signing the Purchase and Sales Agreement, the buyer should contact a Rhode Island lawyer / attorney who specializes in real estate law, residential real estate closings and title law.
This agreement was drafted with the intent to be fair to both buyers and sellers of residential real estate; however, the buyer should not sign this agreement without paying careful attention to all of the provisions including the following provisions:
1. The agreement provides for a certain number of days within which buyer must apply for his/her mortgage. Pursuant to the terms of the standard Rhode Island Purchase and Sales Agreement, if the buyer fails to apply for the mortgage, his deposit will be forfeited. Please make certain that you allow enough days for this application to be made.
2. The agreement provides that if the buyer applies for a mortgage greater than the amount set forth in the Purchase and Sales Agreement, buyer will have no right to obtain a return of his deposit if his mortgage application is denied. Buyer should be certain that the amount filled in for his proposed mortgage is in fact the highest amount that he intends to apply for.
3. The agreement provides that the buyer must accept the property with any easements or restrictions of record that impact the property. The buyer should read the Rhode Island Real Estate Sales Disclosure Form prior to signing the Purchase and Sales Agreement. Rhode Island Law requires that the seller of residential real estate in RI notify the buyer of any restrictions or easements. Buyer should check the disclosure form and if the seller indicates that there are restrictions or easements, buyer should read them prior to signing the Purchase and Sales Agreement. If the buyer does not understand the legal implications of the restriction or easement, then they should contact their real estate attorney.
4. Buyer's right to a return of their deposit in the event they are not satisfied with house inspections, such as physical/mechanical, pest infestation and septic system, depends on the inspector finding a substantial / materially deficient condition which has not been disclosed to the buyer prior to the execution of the Purchase and Sales Agreement. This means that the buyer should carefully read the Real Estate Disclosure supplied by the seller prior to signing the Purchase and Sales Agreement to make certain that seller has not disclosed existing deficient conditions on the property in this form. If deficient conditions have been disclosed, the Purchase and Sales Agreement should be amended to indicate that buyer may terminate the agreement based upon these deficient conditions
Matthew Slepkow is a Rhode Island attorney who concentrates in Real Estate law including residential and commercial closings and title law. Mathew is a Partner at Slepkow Slepkow & Associates, Inc. which is one of the largest residential real estate and title law firms in the State of Rhode Island and has performed over 40,000 real estate closings.
Matthew also has substantial experience in Probate Law, Wills, Trusts, Estate Planning, Elder Law, Business / Corporate law and the general practice of law. Mathew is a Professor at Roger Williams Law School teaching Real Estate Transactions. Matthew has a particular expertise in legal issues concerning the Elderly and Senior Citizens in Rhode Island (RI). Particularly, Matt is experienced and is knowledgeable in helping the elderly with Estate Planning and helping them protect their home from nursing home liens.
Everything you need to know about Expungements in Rhode Island by a RI Lawyer!
Background Information
Rhode Island (RI) has some of the most liberal expungement laws in the United States. If you are eligible for an expungement, why not get those menacing and harmful criminal records erased, sealed or destroyed! If a criminal record is expunged you are legally allowed to tell others that you have no record.
This article is an in depth and in detail explanation of Expungement law in RI as of August 2008. Expungement law and policy is in a state of flux. The legislature is attempting to make expungement policy even more liberal, while the governor is trying to make it more difficult to expunge records. Even the Supreme Court of Rhode Island (RI) has recently weighed in on expungment matters. These three branches of government are in disagreement concerning expungement policy.
In order to get a Criminal record expunged in Rhode Island, a motion must be filed and a Court hearing is required. You should contact a Rhode Island Criminal Law Expungement Attorney / Lawyer.
Expungement of Dismissed records
The general rule is that dismissed criminal charges (48a) can always be expunged. Many people don't realize that records of alleged crimes that are dismissed should be expunged / erased. Even though the case was dismissed, there is still an indication on the Rhode Island criminal computer records and on your Bureau of Criminal Identification (BCI) report that you were charged with the criminal offense.
The public can easily view the dismissed records and other rhode Island criminal records at http://courtconnect.courts.state.ri.us/
Many people will assume that you did something wrong even if the case was dismissed. Some people will assume that you just "got off on a technicality" or that you are a bad character by the very fact that you were charged.
Are there dismissed charges that cannot be expunged immediately?
A dismissed charge may not be able to be expunged if the related charges cannot be expunged. For example, if you were charged with three offenses related to the same incident and 2 were dismissed but the third you recieved a sentence of probation. You would have to wait until the probation charge could be expunged until the other dismissed charges could also be expunged. The reason for this is because you cannot destroy portions of a file! I believe the primary reason for this rule is because it is logistically impossible to expunge a charge when there are other records in a related incident that cannot be expunged.
For example, John was charged with domestic assault, failure to relinquish telephone and disordely conduct arising out of a domestic dispute with his wife related to their pending divorce. John recieved probation on the disorderly conduct. The assault and failure to relinquish phone charges were dismissed. John would not be allowed to expunge the two dismissed charges and would need to wait five years after completion of the probation to dismiss all the charges.
Expungement of Not Guilty findings.
The general rule is that not guilty findings after trial by a judge or jury can be expunged. However, if the not guilty finding relates out of the same incident for another charge which cannot be expunged then the not guilty finding cannot be expunged.
Pursuant to Rhode Island Law the following types of cases can always be expunged: Dismissals, No information, Not Guilty.
Expungement of one year filings
A filing is a penalty that is typically offered for first time offenders for relatively minor misdemeanors. A filing is the lowest form of penalty available and is always better than probation for an accused. A filing is when the case is put aside for a year and if the person stays out of trouble for a year then the case is eligible to be expunged and destroyed at the end of the year.
If a person gets in further trouble during the filing period then the person may be "violated" and the person sentenced again for violating the filing. A person must be very careful to stay out of trouble during the filing period. If the person is charged with a new crime, the person will be brought before the Court as a violater as well as charged with a new crime.
At the initial arraignment, a person with a filing can be held for 10 days without a hearing.
If the person takes a plea deal on the violation of the filing or probation and a plea agreemeent on the new charge then neither of the charges can be exunged.
If a person is not violated during the filing period then a filing can be expunged even if there are other offenses after the filing.
Be careful, do not forget to have your filing expunged at the end of the year! It is not automatic. A certified copy of the expungement order must also be sent to the Rhode Island Attorney General 's office, the Rhode Island State Police and the local police department that pursued the criminal charge.
Remember, Under RI Criminal Law, A plea of nolo contendere with a filing and no fine is never a conviction.
Expungement or convictions, suspended sentences, deferred sentences, jail sentences or probation
A misdemeanor or felony conviction is any sentence with a fine, suspended sentence or period of incarceration. Even though probation or a deferred sentence do not constitute convictions under Rhode Island Law they are treated the same way as convictions for expungement purposes.
A misdemeanor case with the following sentence can be expunged five years after the completion of the sentence or probationary period: probation, suspended sentence, deferred sentence, stayed sentence, fine, jail.
A felony conviction, supended sentence or probation / deferred sentence can be expunged ten years after the completion of the sentence or probationary period.
Under the current state of Rhode Island law you cannot have any conviction, suspended sentence , fine or probation expunged if you have another conviction, suspended sentence , fine or probation on your record.
Expungement of felony deferred sentences
Pursuant to a recent supreme Court case, deferred sentences are treated the same way as convictions for expungement purposes. If a person receives a 5 year deferred sentence on a felony charge, the person is not eligible to have the charge expunged until 10 years after the deferred sentence has concluded. This new rule is very unfair becuase judges and attorneys have been advising defendants that after a 5 year deferred sentence that they would be able to get the record expunged. Now the Supreme Court is pulling the rug out from underneath people who were promised that their deferred sentence could be expunged when they finished their sentence. Please note that the Rhode Island legislature was recently attempting to make it easier to expunge deferred sentences but this legislation was recently veteod by the governor.
Crimes of Violence
Certain crimes of violence can never be expunged and R.I.G.L § 12-1.3-1. states:
"Crime of violence" includes murder, manslaughter, first degree arson, kidnapping with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree sexual assault, first and second degree child molestation, assault with intent to murder, assault with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering a dwelling house with intent to commit murder, robbery, sexual assault, or larceny.
Noticeable absent from the definition of crimes of violence is "assault." It could be argued that assault is not a crime of violence as it relates to expungement. If the legislature intended that assault could not be expunged they would have included it in the list.
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 or attorney as an expert or specialist in any field of practice.
David Slepkow is a Rhode Island lawyer concentrating in Criminal law, Expungements, Divorce, family law, Personal Injury, Automobile Accidents, dui / dwi / breathalyzer refusal , Child Support, Custody and Visitation. David has been practicing for over 9 years and is licensed in Rhode Island (RI), Massachusetts (MA) and Federal Court. You can contact David Slepkow by calling 401-437-1100 or by visiting http://www.slepkowlaw.com
Prenuptial agreements are extremely enforceable in Rhode Island (RI). A prenuptial agreement is also commonly called a Premarital Agreement or an Antenuptial agreement. A prenuptial agreement should be drafted by a Rhode Island Family Law and Divorce attorney / lawyer. Prenuptial agreements are also intercheangeably referred to as premarital agreements and antenuptial agreements. The Rhode Island supreme Court has made prenuptial agreements extremely difficult to set aside
Prenuptial Agreements in Rhode Island by Rhode Island Family Law Lawyer, David Slepkow.
Prenuptial agreements are extremely enforceable in Rhode Island (RI). A Prenuptial agreement is also commonly called a Premarital Agreement or an Antenuptial agreement. A Prenuptial agreement should be drafted by a Rhode Island Family Law and Divorce attorney / lawyer.
The Rhode Island supreme Court has made prenuptial agreements extremely difficult to set aside!
Rhode Island General Law 15-17-6 and Marsocci v Marsocci, 911 A.2d 690 (R.I. 2006) create a heavy burden on a person seeking to invalidate a prenuptial agreement in Rhode Island.
The seminal case in Rhode Island concerning prenuptial agreements is Marsocci v. Marsocci, 911 A.2d 690 (RI 2006) In Marsocci, the Court stated "In Rhode Island, the enforceability of a premarital agreement is governed by the Uniform Premarital Agreement Act as codified in § 15-17-6. Section 15-17-6 states:
<b>(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) That party did not execute the agreement voluntarily; and
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) The burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable and must be proven by clear and convincing evidence.
(c) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
(d) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." <b>
In Marsocci, the Rhode Island Supreme Court reasoned "We have noted that when the Legislature enacted the provisions of § 15-17-6, it clearly evidenced the intent to preserve the validity of such agreements [and] * * * [maintain] the integrity of such agreements." Id. at 696. Citing Penhallow v. Penhallow, 649 A.2d 1016, 1021 (R.I. 1994).
The Marsocci Court further opined "To that end, the Legislature placed a significant burden upon the party seeking to render the agreement unenforceable - that party must prove all of the elements in §§ 15-17-6(a)(1) and (2), and must do so by clear and convincing evidence." "We are satisfied that § 15-17-6(b) unambiguously provides that: '[t]he burden of proof as to each of the elements required in order to have a premarital agreement held to be unenforceable shall be on the party seeking to have the agreement declared unenforceable' * * *."
In Marsocci, the husband David and the wife Debra were married on August 26, 1995. The parties signed a prenuptial agreement four days prior to the wedding. Both parties signed the agreement, and it was witnessed. "The trial justice found that each asset David Listed was unaccompanied by a dollar value; nor was there a written waiver of Debra's right to disclosure of the value of her husband's property and his financial obligations."
In Marsocci, the trial judge stated "There is no information contained in this agreement as to the values of any of Mr. Marsocci's assets." The trial judge found that Debra " has nothing and agrees to end up with nothing after her marriage..." The husband, David, was represented by counsel and the wife Debra did not have an attorney representing her.
The Court upheld the validity of the prenuptial agreement holding that Debra did not prove all of the elements of the Premarital Agreement Act by clear and convincing evidence.
<br>If a person signs a prenuptial without a lawyer is it enforceable?<br>
Yes. It may be preferable for a person to have a lawyer but it is far from required to make the premarital agreement enforceable.
David Slepkow is a Rhode Island lawyer concentrating in divorce, family law, restraining orders, child support, custody and visitation. David Slepkow has been practicing for over 9 years and is licensed in Rhode Island , Massachusetts and Federal Court. Free initial consultations. Credit Cards Accepted. You can contact attorney David Slepkow by going to <a target="_new" href="http://www.slepkowlaw.com">http://www.slepkowlaw.com</a> or by calling him at 401-437-1100.
Also please visit: http://www.slepkowlaw.com/divorce.htm (Information and Links Concerning East Providence RI Attorney David Slepkow and Rhode Island Divorce, Child Support and Family Law)
Personal Injury Law and Car accident Information Center
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Welcome to the website of the Rhode Island law firm, Slepkow, Slepkow & Associates, Inc.
Please call us with any Rhode Island Legal Questions 401-437-1100
Slepkow, Slepkow & Associates is a Rhode Island (RI) law firm with six lawyers covering a full array of practice areas, including real estate law, divorce & family law, personal injury, estate planning, elder law, probate law and business law. We pride ourselves in the fact that we are the largest law firm in the East Bay of Rhode Island concentrating in real estate law.
Slepkow has been a household name associated with quality legal work for over 75 years. Frank Slepkow founded the firm in 1932 when he opened his practice over King's Drug Store in Riverside Square to serve the growing suburban area of East Providence. The firm began to grow as his two sons, Martin and Milton, joined the firm in 1967 and 1972, respectively. Now we have transitioned into the third generation with each of Martin and Milton's sons joining the practice: David Slepkow in 1997; Matthew Slepkow in 1997; and Joshua Slepkow in 2006. Along with Attorneys Bruce Cox and Anthony Marrocco, the third generation of Slepkow's are poised and well equipped to continue the tradition of legal excellence into the 21st century.
The firm's real estate practice is not limited to residential and commercial closings and title searches, but includes zoning, land use planning, land ownership, title disputes, real estate litigation, landlord/tenant law and other real estate legal issues
Our personal injury and automobile accident practice goes well beyond the standard auto accident. We aggressively settle or litigate slip and fall, dog bites, bicycle accidents, insurance disputes, premises liability, motorcycle accidents and other negligence cases.
Our divorce and family law practice helps clients with complex issues concerning family court matters such as child support, custody, visitation, post divorce issues, contempt, out of state family law issues, criminal law matters related to domestic relations, as well as alimony and restraining orders.
We maintain an active elder law practice which includes wills, trusts, Medicaid issues, nursing home payments, and probate court appearances.
Our attorneys also have substantial experience in business and corporate law ranging from organizing an LLC, corporation or partnership to litigating a contract or commercial dispute.
We hope you enjoy our website and we look forward to the opportunity to serve you.
Personal Injury Practice- Slepkow Slepkow & Associates, Inc.-Rhode Island Personal Injury Lawyers
Slepkow, Slepkow & Associates http://www.slepkowlaw.com is committed to representing clients concerning their personal injury, auto accident, slip and fall claims in Rhode Island (RI) and Massachusetts (MA). We will represent you through the entire process from submitting the claim to the insurance company and helping you to obtain full value for your automobile, to settling your claim and, if necessary, filing a lawsuit on your behalf. We do everything in our power to help you get the best settlement possible to compensate you for your injuries. As with all of our practice areas, an attorney, not a paralegal, will guide you through the personal injury settlement process and the potential lawsuit. We offer contingent fee arrangements where no legal fee is collected unless we are successful in obtaining a legal settlement or judgment for you. We settle and aggressively litigate the following types of personal injury matters:
automobile (car/auto) accidents
motorcycle and truck accidents
dog bite injuries
slip and fall
insured motorists
uninsured motorists
accidental deaths
hit and run
property damage claims
pain and suffering
lost wages
bicycle accidents
whiplash injury
premises liability
serious injury
whiplash injuries
Please email us with your personal injury questions and inquiries and a lawyer will respond as soon as possible. The email will go directly to one of the lawyers at our firm. www.slepkowlaw.com/personal.htm
1) If I am injured in an automobile accident, what do I do?
Make sure you stop at the scene of the car accident and notify the police department immediately about the accident. If possible, please get all of the information about the other parties involved in the accident, including their name, address, telephone number and insurance information. Make sure you receive treatment for your injuries with a medical provider as soon as possible.
At the time of the accident, please get the names, addresses and phone numbers of any witnesses to the accident. If you have a camera or a cell phone with a camera, please take pictures of your automobile, the other automobile and the scene of the accident. If you have any bruises or physical conditions that are noticeable, please take pictures of the physical condition as soon as possible. Please do not give any statement to the insurance adjuster until you have had the opportunity to speak with an attorney. Please call Slepkow, Slepkow & Associates, Inc. at 401-437-1100.
2) How do I determine how much money I am entitled to as a result of the accident?
In order to determine the value of the case, the attorneys must look at a combination of factors, including lost wages, pain and suffering, permanency of the injury, any scarring or disfigurement, loss of consortium, periods of disability, etc. Determining the value of a case is an art rather than a science. The amount of the medical bills incurred will be one important factor in determining the value of the case.
3) Does Rhode Island have a statute of limitations for personal injury cases?
There is a three year statute of limitations to file a lawsuit for negligence in Rhode Island. If you do not file a lawsuit within three years from the date of the accident, you will be forever barred from filing a claim as a result of the accident. In the event that the claim is for personal injuries against a city or a town, there are very strict notice requirements.
4) What if I am injured and the other party is at fault but has no insurance?
You have the legal right to file a claim against the person or corporation whose negligence caused your injury. However, in many cases the negligent party does not have the assets or funds to be able to pay your damages. So long as you have uninsured or under-insured motorist protection, you will be able to file a claim against your own insurance company for uninsured or under-insured claims.
Whiplash information from American Academy of orthopedic Surgeons Information concerning stiffness, low back pain, dizziness, shoulder pain, headaches, neck pain concerning the diagnosis and treatment of whiplash injuries from auto accidents and rear end collisions from accidents.
General Litigation
Slepkow, Slepkow & Associates will handle all of your litigation needs. In addition to personal injury cases, we handle all types of civil litigation. Our firm will strongly advocate your position as either a plaintiff or a defendant.
1) I believe that I have been wronged by another individual or entity, what should I do next?
You should contact an attorney promptly. One reason is that you will not run the risk of having your claim barred by the statute of limitations. Also, your recollection of the events is crucial and as time goes by your memory may fade.
A civil lawsuit is commenced when a plaintiff serves a Complaint and a Summons upon the defendant. The complaint is the legal document that sets forth the alleged misconduct by the defendant. The summons is the legal document that directs the defendant to appear before the court.
3) What should I do if I am served with a Summons and Complaint?
You should seek the advice of an attorney immediately. As the summons instructs, you only have twenty (20) days in which to respond to the Complaint. If the 20 days period passes, the defendant will be in default and lose the case. The response to the Complaint is called an Answer. This legal document sets forth the defendants defenses and counterclaims against the plaintiff.
Every lawyer is free to set his own billing method. There are many different types of billing methods: An attorney might choose a contingent fee, where you only pay the attorney if you win the case, or may offer a flat one time fee or may simply bill hourly. Usually the attorney will determine which method is best by the type of litigation in question. Slepkow, Slepkow & Associates never charges any fee in a personal injury case unless successful.
It depends. After the pleadings (Complaint and Answer) have been served, there is a discovery process. This is the period when the parties obtain all of the facts of the case. The length of this process depends on the complexity of the case. The overwhelming majority of cases are settled long before trial.
Disclaimer: ActiveRain Corp. does not necessarily endorse the real estate agents, loan officers and brokers listed on this site. These real estate profiles, blogs and blog entries are provided here as a courtesy to our visitors to help them make an informed decision when buying or selling a house. ActiveRain Corp. takes no responsibility for the content in these profiles, that are written by the members of this community.
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