Family Law

This is a list of commonly asked questions regarding family law.

What is a "dissolution of marriage"?

To get a divorce, do I have to show that my spouse was at fault?

What do I do to start my case for dissolution of marriage?

Do I have to be a resident of the state of Missouri to file for a dissolution of marriage in this state?

Where should my case be filed?

What do I do if my spouse has filed a petition for dissolution?

What if I can't find my spouse? What do I do?

How should the property be divided? Should it be divided 50/50?

What is the difference between "marital" property and "non-marital" property?

What about my pension - is it marital property?

Am I entitled to alimony or maintenance?

What about child custody?

How is child support determined?

Is it possible for the court to enter child support that is different than the presumed child support on form 14?

Can the parties reach an agreement to settle all of their differences?

Does dissolution of marriage have to be hard fought and bitter?

*What is a "dissolution of marriage"?* A dissolution of marriage is more commonly known as a divorce. In Missouri it is called a "dissolution" because the "bonds of matrimony" are dissolved.

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*To get a divorce, do I have to show that my spouse was at fault?* Missouri allows "no fault" divorces. If one party testifies that "the marriage is irretrievably broken" and "there is no reasonable likelihood that the marriage can be preserved", then a dissolution is ordinarily granted. Sometimes the other spouse will deny that the marriage is irretrievably broken. In this event, the judge must decide whether the marriage is irretrievably broken, however, usually a divorce is granted even though one party may deny that it is irretrievably broken.

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*What do I do to start my case for dissolution of marriage?* In most cases you should have an attorney representing you in an action for dissolution of marriage. The steps to get a dissolution of marriage are as follows: File a petition which tells the court general information about your marriage. The petition must include everything listed in the statute and must be signed by you and your signature notarized. If you have minor children, you must file a parenting plan as described in §452.317.7. Request that the court issue a summons, which is a notice to the other party that the case has been filed and sending a copy of the petition to the other party. §452.311. Pay a filing fee which is set by local rules. If you decide not to hire an attorney, you should understand that you will have to follow the rules of court where your case is filed and all of the rules in the statutes of the state of Missouri.

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*Do I have to be a resident of the state of Missouri to file for a dissolution of marriage in this state?* You or your spouse must have been a resident of the state of Missouri for ninety days immediately before the petition for dissolution of marriage was filed.

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*Where should my case be filed?* §452.300 requires that the case be filed in the county where you reside or the county where your spouse resides.

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*What do I do if my spouse has filed a petition for dissolution?* You must file and "answer" within the time stated on the summons that you will receive. In the answer you must "admit" or "deny" the items stated in the petition and the "answer" must be signed by you and your signature must be notarized. If you do not file an answer, the court can proceed with the divorce without hearing any information from you, therefore, it is very important that if you receive a summons telling you that your spouse has filed for dissolution of marriage that you file an answer. Ordinarily you will want to retain an attorney to file an answer for you.

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*What if I can't find my spouse? What do I do?* You can do one of several things: A notice can be published in the local newspaper. The notice allows the judge to dissolve the marriage but the judge cannot divide the property, order maintenance, order child support or child custody. In fact, the judge can't do much except dissolve the marriage. You can try and find your spouse by running a check of records, by talking with friends or family members or by hiring a private investigator.

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*How should the property be divided? Should it be divided 50/50?* The Missouri statute does not state that property shall be divided equally. In Missouri the property is divided "equitably". The court takes into account certain factors which are found in §452.330: Economic circumstances of the parties. Contribution of each spouse to acquisition of the party. The value of each person's non-marital property. Contact of the parties during the marriage. Additional needs of the parties if they are awarded custody of the children. As a practical matter, many judges start out with an assumption that property should be divided equally and may make adjustments based upon the factors described above.

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*What is the difference between "marital" property and "non-marital" property?* Marital property is any property acquired during the marriage unless it fits into one of the categories of non-marital property. Non-marital property is: Property owned by one spouse before the marriage, however, this property can be converted into marital property under a number of circumstances. Property that one spouse receives by gifts, inheritance or exchange of non-marital property for other property. As stated above, "non-marital" property can become marital property by: Using it as marital property - especially a residence. Using marital funds to improve property - typically a residence. Pledging the non-marital property for marital debts. Conveying the non-marital property to your spouse or commingling the non-marital property with marital property.

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*What about my pension - is it marital property?* Any property you acquire during the marriage, including the value added to your pension, may be marital property. If you had the pension before the marriage, it is possible that only a part of the pension is marital property. The court will often use an equation to figure out what part of it is marital property. If you want to keep all of your pension, then the court can award you the entire pension and offset the value against your "equitable" share of the property.

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*Am I entitled to alimony or maintenance?* In Missouri what used to be called "alimony" is now called "maintenance". There is a threshold test that you must meet to get maintenance. That test is: Do you lack sufficient property, including marital property given to you in the dissolution, to provide for your needs? Are you unable to support yourself through a job, or are you the custodian of a child whose condition or circumstances make it appropriate for you not to work? If you pass both of the above tests, then the court considers ten factors in deciding the amount of maintenance. Financial resources of person asking for maintenance. Time needed to "retrain" the person seeking maintenance. Relative earning power of each person. Standard of living during the marriage. Debts and assets each person received in the dissolution. Length of the marriage. Age, physical and emotional condition of each person. The basic living expenses of the person who would pay the maintenance. Conduct of the parties during the marriage. Other relevant factors such as sacrifices one party may have made to send the other spouse to school.

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*What about child custody?* If you have children, you should have an attorney assist you with your divorce. The rules and considerations for child custody are complex. Generally, Missouri law has acknowledged that "frequent, continuing, and meaningful contact with both parents after the parties have separated or dissolved their marriage is in the best interest of the children." §452.375.4. In most circumstances, the court will favor a joint legal/joint physical custody arrangement where the parties share major decision making and each has significant but not necessarily equal time with the children. If there has been child abuse or neglect, the court can protect the child by limiting visitation, however, the court will not necessarily limit visitation simply because one spouse has been at fault in the marriage. It is important that neither party use child custody and visitation as a way to seek revenge for bad conduct in the marriage. Unless the bad conduct relates to the children, the court may disregard that misconduct. If there are allegations of mistreatment of the children during the marriage, then the court will probably appoint a guardian ad litem to represent the child or children. The parties share the cost of the guardian ad litem. If the dispute over child custody is bitter, sometimes a court will appoint a guardian ad litem even though child abuse is not alleged. The parties share the cost of the guardian ad litem, which can be substantial. The guardian ad litem is ordinarily an attorney appointed to represent the children who may make recommendations to the court concerning custody. To avoid unnecessary costs and trauma to your children, both parties should make every effort to keep disputes about child custody rational and civilized.

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*How is child support determined?* The Missouri statute, §452.340, provides a mathematical equation or formula to calculate child support, however, there are many variations in how the equation works and calculation of child support is not necessarily straightforward. The parties use "form 14" and the presumed child support/worksheet to calculate the presumed child support. Missouri rule 88.01 provides the details of how child support is calculated. The factors in the equation or formula include: The gross (before taxes) monthly income of each party. Any support the parties pay to someone else unrelated to the divorce, by court order. The cost of health insurance, work-related daycare and extraordinary expenses for the children. The number of overnight visits a non-residential custodian has with the child. The federal tax credit for the residential custodian. Since the calculation of child support is not straightforward, it is wise to have an attorney experienced in family law representing you in your divorce.

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*Is it possible for the court to enter child support that is different than the presumed child support on form 14?* Yes, but under the new child support guidelines, this would be unusual.

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*Can the parties reach an agreement to settle all of their differences?* The courts make a great effort to encourage the parties to settle their differences. This is particularly true if children are involved. The more bitter the dissolution fight, the more uncomfortable the children will be. Some courts encourage or require mediation, which is a formal procedure that encourages the parties to make reasonable concessions and reach an agreement. There are professionally trained mediators that can be very helpful in this regard.

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*Does dissolution of marriage have to be hard fought and bitter?* Dissolution of marriage is almost always difficult, particularly if there are children. It is almost inevitable that there will be disagreements. It takes two people to reach an agreement, however, anything that you can do to keep the relationship calm and rational will probably be to your benefit. A provocation by one spouse is usually met with retaliation and the atmosphere can degenerate. When parties seek revenge for past injustice, presumed or real, the battle can be long, expensive and bitter. Even though the statute allows the judge to consider the conduct of the parties in dividing the property, the judge will probably place little weight on the misconduct unless it involves clear physical or emotion abuse. Remember you are paying your attorney by the hour and it is usually a bad idea to escalate the batter if it can be avoided. In summary, try and stay rational and calm and avoid unnecessarily angering your spouse. Remember that you once loved this person and if you have children, you will need to work together in the future to raise these children. Be assertive about your rights but don't be petty and don't use your children as pawns.

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