Final hour and really need help

[oneofsix]

What is the name of your state (only U.S. law)? CA

What is the name of your state (only U.S. law)? CA

Short version...

I filed and served papers for a legal separation from my husband, who lives in Rhode Island. My attorney "allowed" him an open ended extension to respond as long as "negotiations were taking place" During this time, he established residency in Rhode Island, and filed for a divorce there.

He also hired an attorney here in CA, and has to my knowledge still not legally responded to the legal separation.

My attorney, advised me to take his temporary support offer, in order to avoid a court date on that issue, I said yes - However my attorney was "unable" to reach my husband to finalize the agreement and my attorney set a new court date.

Here's the problem. My husband has a date set for the divorce to proceed in Rhode Island on the 29th of October (although I have never been served???) which seems to mean that If we don't come to an agreement here, and the new court date is 6 weeks out it is past that Oct. 29th date in Rhode Island.

The only response I get from my attorney is "he can do whatever he wants in Rhode Island" erg!

We have not talked since his attorney advised him not to talk to me, but prior to that he made mention several times that he "didn't know where I was to serve me" (he not only does, but since his attorney is talking to mine it is clear he would have access to serve me)

I think he is dragging a response to my legal separation papers in order to proceed with the case in Rhode Island, and plans to claim I was unavailable for service.

I'm so confused, and my attorney is, well, I'm not to thrilled right now that she can't or won't explain to me what the ?? is going on.

Yes, I want to hire a new attorney, however time being the issue I don't know what to do!!!! Do I just show up, alone, in Rhode Island on the 29th (which would be a huge hardship) ???

Any advice at all? Im desperate right now

 

[Silverplum]

This happens to new posters all the time -- the "preview" function kills your post.

Try again, but don't hit "preview!"

 

[Silverplum]

I'm glad you came back and edited. My post here will now bump yours up the page for responses.

 

[oneofsix]

Thank you, Im not real good with this stuff! I still am not sure if this reply will even post, I will get it down tho will only take me a couple times.

 

[wavehopper27]

How long has he lived in Rhode Island?

 

[oneofsix]

He filed the minute he attained 1 year residency.

 

[wavehopper27]

Here is the Rhode Island statute with regards to Domicile and residence requirements.

TITLE 15
Domestic Relations

CHAPTER 15-5
Divorce and Separation

SECTION 15-5-12


§ 15-5-12 Domicile and residence requirements. – (a) No complaint for divorce from the bond of marriage shall be granted unless the plaintiff has been a domiciled inhabitant of this state and has resided in this state for a period of one year next before the filing of the complaint; provided, that if the defendant has been a domiciled inhabitant of this state and has resided in this state for the period of one year next before the filing of the complaint, and is actually served with process, the requirement of this subsection as to domicile and residence on the part of the plaintiff is deemed satisfied and fulfilled. The residence and domicile of any person immediately prior to the commencement of his or her active service as a member of the armed forces or of the merchant marine of the United States, or immediately prior to his or her absence from the state in the performance of services in connection with military operations as defined in subsection (c) of this section, shall, for the purposes of this section, continue to be his or her residence and domicile during the time of his or her service and for a period of thirty (30) days after this. Testimony to prove domicile and residence may be received through the ex parte affidavit of one witness.

Its my belief that he was stalling for time so that he could meet the residency requirement in order to file in Rhode Island.

 

[Doreen]

A filing for divorce in Rhode Island trumps a filing for separation in California.

RI should now have jurisdiction over the divorce and the legal separation case in CA should be dismissed.

http://catherinevincent.com/legal-separation/

 

[oneofsix]

Sorry so long on my reply , had some cpu problems

I understand what you are saying, that the divorce would trump the Ca case. What is confusing me is that he actually hired an attorney here in CA.

When I ask my attorney if that means the case is now "officially" to go forward here, and if the case in Rhode Island is dropped - her reply is "I told you that his attorney told me that he was going to agree to California jurisdiction. That is all I know, I can't tell you anymore at this time because that is the extent of the information I have"

It is so frustrating, Unless I'm crazy (which I'll admit is getting close to possible at this point!) that answer doesn't tell me anything...

Just because my attorney was told that he was "going to agree" doesn't mean that he actually has... which means what??? I wait until the 29th (the date he has set in Rhode Island) and find out "oh, surprise! the judge here in Rhode Island granted the divorce, have a nice day"?

When I asked my attorney that question her reply was "I don't know about Rhode Island law" ...

Remember, again, I haven't been served on this Rhode Island case... and from what I've heard whoever is "served" first has jurisdiction - which makes me think I need to run down this morning and file (on my own) for a divorce (not a legal separation, which is what my attorney originally filed) and have him served before the 29th.

I know this is complicated, and if no one has a suggestion I understand. Im grasping at straws for help because I feel in the dark with my attorney, and I don't have the funds for another retainer - if I did I would hire another and move forward.

 

[ecmst12]

You really need to talk with a lawyer in RI.

 

[oneofsix]

I know, I was scared of that... It's the retainer that I am worried about. I have been sick (cancer) and not working, and my husband stopped sending money months ago. I did contact a volunteer lawyer group there, but they are not taking new cases.

Thank you for your reply.

 

[not2cleverRed]

Pardon my naivette, but why were you filing for separation rather than divorce in the first place? And furthermore, what's up with your lawyer that she couldn't do a google search to find out at least the residency requirements for a RI divorce?! That would seem to be a very basic tactical thing to do... to let you know when he became elgible to file for divorce there.

Granted, that's all water under the bridge - but my point is, your lawyer has NOT been looking out for you legally.

And you cannot afford to ignore what's been filed in RI. And if you believe that you haven't been served, then how do you know that he has filed in RI?

 

[oneofsix]

Trying to figure out how to answer your question with the "short" version.

My attorney suggested the separation because she thought I was "not ready" to file for divorce, my husband was going back and forth emotionally, I was just diagnosed was concerned about maintaining my health insurance , I really didn't want a divorce... (he did/does) It seemed right at the time - obviously that was a mistake so yes, water under the bridge and I'm learning my lesson.

I had done the research, and knew the requirements for Rhode Island. I wasn't sure of the exact date, but knew when he had left CA. I specified to my attorney that keeping the case in CA was my first and foremost concern, however by the time she prepared the paperwork and had him served it was too late. He hired an attorney in Rhode Island and had him call mine to say that they had filed for a divorce there, and were requesting an extension to reply to my request for separation in an effort to instead "negotiate", without asking me gave them the extension... which at that point probably didn't matter, as he had filed and that was now a separate issue.

When she informed me of this, I called the courthouse in Rhode Island to see if a case had actually been filed - and it had, along with a court date set for Oct. 29th.

My attorney, shortly thereafter informed me that he was willing to settle temporary spousal support to avoid the court date that was set here in CA (Oct. 2nd) Although the amount was far less than appropriate, she advised me that since he had been on unemployment which coincidentally just ended and had only his military retirement income I "should" accept. I said ok, and she would prepare the paperwork and mail and email me a copy. The next day she informed me that his lawyer was unable to contact him, and that she would request another court date to settle the spousal support issue.

I then sent her an email asking if since I hadn't been served, if us filing for a full on divorce and having him served could keep the case here...

She replied, not answering that question, but telling me that if I didn't think she was doing her job, that I should find another attorney.

I didn't even know how to respond to that, so I didn't.

I havent heard from her since. And that is where things are as of today.

 

[ecmst12]

It looks like the case is going to proceed in RI and you should get a new attorney there.

 

[not2cleverRed]

The thing is, I can understand initially filing for separation, but since there seemed to be a lag there, you should have dropped that and refiled for divorce BEFORE he attained residency. If you didn't know "exact" dates, then give yourself a 1 month buffer. If you truly thought he was on the fence... well, 3000 miles doesn't sound conducive to mending a fence.

I can understand your actions - your lawyers, not so much. She sounds rather incompetent, or at least flaky. Release her.

You cannot afford to be a complete no show in Rhode Island. Because of your lawyer's poor understanding of tactics, Rhode Island now has jurisdiction. Because your husband has not been taking care of you "in sickness" already, he's not about to be generous in his offerings of a divorce settlement. If you ignore this and let things "just happen" your husband can get a default judge that provides you with zilch, or near to it.