FREQUENTLY ASKED QUESTIONS ABOUT MISSOURI FAMILY LAW
- Is a Dissolution the same thing as a Divorce?
Yes. Missouri laws, legal forms, pleadings, and judgments use the term “Dissolution of Marriage” instead of “Divorce”, but the two are one and the same – the legal termination of a marriage. We have all become familiar with the word “divorce” through television and movies, but this is a matter of state law, and each state has their own peculiarities. Missouri adheres to its traditional use of the words “Dissolution of Marriage.”
- Does Missouri require ‘grounds’ for divorce?
No. The Petitioner asking the Court to Dissolve the Marriage must simply state that, in their opinion, there is no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.
- Can I get a divorce if my spouse does not want one?
Yes. Since whether there is any “reasonable likelihood that the marriage can be preserved” is a matter of opinion, it really only takes one party to hold that opinion, and the Court will not order the parties to attempt reconciliation or attend marital counseling.
- Can my spouse and I use the same lawyer for an uncontested divorce?
One attorney cannot represent both parties in the dissolution of their marriage. One party must be the client of the attorney. That attorney can draft and file a Petition for Dissolution on behalf of his client. In every case it is necessary to complete some standard discovery documents, which involve the parties’ Income, Expenses, Property and Debts. These forms must be completed, and all information must be disclosed, which guides the Court in determining whether the parties’ agreement is fair and equitable. The one attorney can then draft a Marital Settlement Agreement as directed by his client, which is then presented to the non-represented party for review. The non-represented party may wish to take the agreement home to think about carefully, take to an attorney of their choice for advice, and may suggest changes. The parties can negotiate revisions between themselves which the attorney will draft as directed by his client. Once the terms are agreeable to both parties and the documents finalized, the parties will sign their Settlement Agreement which locks-in the terms of their Dissolution, subject to the approval of the Court. The attorney will draft a Judgment of Dissolution which incorporates the terms of the parties’ agreement. Upon a short hearing, the judge will sign the judgment ordering the parties to perform the terms of their agreement. It is fairly common in uncontested situations that the parties share in the cost of the attorney fees. If both parties hire lawyers, the drafting of documents is normally shared between attorneys. With one attorney, all the drafting falls on them, so as long as the parties remain amicable, it benefits both parties to avoid excess attorney fees, but there is a little more work for the one attorney. The cost, as you asked, depends on many factors, such as the length of the marriage, the extent and nature of the marital assets, whether either party owns real estate, and many other complications that you may or may not think of offhand.
- What does it mean to be “separated” from your spouse?
If the spouses are living in separate households, they are clearly physically separated. If they have ceased marital relations, that is some indication that they are emotionally separated. The marriage, in all other respects, remains intact. There is such a thing as a Legal Separation, which is very uncommon and is described under Question 3, below.
- How do I get my spouse out of the house during our Divorce?
Missouri does not provide a clear or simple way for either spouse to obtain exclusive use of the marital residence during the Dissolution process. Being the “first to file” provides no advantage.Some parties go through part, if not all, of the Dissolution process living in the same household. This may be for financial reasons, or to promote stability for their children. In more hostile situations, it may be an attempt to “stakehold” one’s interest to remain in the marital residence following the Dissolution, or to gain a perceived advantage for custody of the children. It is often very uncomfortable, however, and is not usually ideal for both parties to live in the same home while divorcing.
- What is a legal separation?
Legal Separation is a legal process that determines, decides and orders everything a Dissolution does, including dividing all the property, allocating all the debt, awarding maintenance where necessary (discussed in more detail below), determining child support (if applicable) and establishing a complete Parenting Plan (again, if applicable), BUT, a Legal Separation does not dissolve the marriage.Therefore, a Legal Separation takes the parties through the very same process as a Dissolution, with the same need for legal counsel, given its complexity and finality. It costs virtually the same as a Dissolution and takes just as long (average of three to six months).There are only a few circumstances where this option makes sense, for instance: 1) To keep an elderly or sickly spouse eligible for health insurance, pension, or survivor’s benefits which their spouse has available. In this case, dissolving the marriage would make the parties’ non-spouses, and therefore ineligible for spousal benefits; 2) For reasons based on personal or religious beliefs.
- If I am not ready for a divorce, can we just get separated?
Yes. If you simply physically separate, the Court will have no jurisdiction and cannot issue any orders (although you can approach the Division of Child Support to obtain an Administrative Order for Medical and Financial Support for the minor children. If you require enforceable orders concerning the use of specific property, the payment of certain debts, spousal support or the sharing of parenting time, you will need to file for a Legal Separation.Once there is a Legal Separation, the process to dissolve the marriage, if necessary, can be straightforward. You simply petition the Court to dissolve the marriage. Since all other matters have been properly before the Court during the Legal Separation, those Orders will be incorporated into the Dissolution.However, there may be a need to revisit some parts of the Legal Separation. While most Orders are final, some are modifiable in family law. Maintenance is modifiable as long as the Order states it is. Child Support, Custody and Parenting Schedules are all modifiable if the circumstances change significantly.
- Can we have our marriage annulled instead of getting a divorce?
Rather than use the word “annulment”, Missouri Statutes set out that certain marriages are void from the outset, because they are prohibited by law, such as:
- Marriages between people related by blood, up to and including first cousins;
- Marriage between people who lack the mental capacity to enter into a marriage contract;
- Bigamous marriages;
And, certain other marriages may be voidable by either party, for instance:
- Where either party is under 15 years of age, the marriage is voidable until the minor reaches the age of 15 and obtains parental consent, or until the minor reaches age 18;
- Where either party is at least 15 but under 18 years of age, and did not obtain parental consent, the marriage is voidable until the minor reaches the age of 18.However, under Missouri case law, the state also permits annulment, or a declaration that the marriage is null and void, for other grounds, such as duress; mental illness, insanity, and retardation; lack of physical assent to the marriage; impotency; and entering into marriage due to fraud.
- Does Missouri recognize common-law marriage?
No. Missouri does not recognize common-law marriage, and any such assertion of marriage in Missouri is null and void.
- Can a Missouri judge order alimony?
Yes. Under Missouri law, what was once called alimony is now called maintenance. It means the same thing – spousal support. The issues surrounding maintenance are always the same – the amount, the duration, and whether it is paid in a lump sum or on some other periodic schedule (usually monthly).However, before these issues come into play, the first question is whether or not maintenance is appropriate under these particular circumstances. In making this determination, the Court will first look at the disposable income and necessary living expenses of the spouse requesting maintenance.
- Disposable income for purposes of Maintenance or Alimony.
If the spouse requesting maintenance is receiving child support, that amount is included in their disposable income. The Court will consider whether the requesting spouse is working, i.e., if not, why not? if so, are they making reasonable efforts to earn according to their physical and mental abilities, given their specific level of education, training, and experience?
- Necessary living expenses.
Necessary living expenses include enough to pay for basic living needs at approximately the standard of living established during the marriage (the longer the marriage, the more relevant this factor is). Even in the case of a long–term marriage with a dependent (perhaps retired or disabled) spouse, both parties will likely suffer a reduction in their standard of living given the necessity of financing two households instead of one.
- Disposable income for purposes of Maintenance or Alimony.
- How can I get alimony or maintenance from my spouse?
If the disposable income of the spouse requesting maintenance is not sufficient to meet their necessary living expenses (as described above), then the NEED for maintenance has been established.The Court will next review the disposable income and necessary living expenses of the other spouse, using the same criteria as above, for the purpose of determining whether this spouse has the ABILITY TO PAY maintenance. This spouse’s disposable income will be reduced by any child support obligation they are paying out. In other words, Child Support Comes First!
- How long does an order for alimony or maintenance last?
The court may order a specific termination date for the maintenance. This could be tied to factors such as the amount of time required to finish education, training, or qualification for higher earning ability.Also, unless an order maintenance for a certain term states that it shall be non-modifiable, then upon a showing of changed circumstances the order may be decreased, increased, terminated early, or extended.Generally, the re-marriage of the former spouse shall relieve the paying spouse from further payment of alimony (maintenance), from the date of the re-marriage.
- Can a parent voluntarily terminate, relinquish, or waive their parental rights in order to avoid or stop a child support obligation?
No. Parental rights (and the accompanying obligation to pay child support for one’s own children) can only be terminated in the following specific ways:
- by a Judgment resulting from extreme cases of abuse or neglect perpetrated by a biological parent upon their minor child, or
- by a biological parent’s voluntary consent to the Adoption of their minor child by a suitable and willing adoptive parent (perhaps a step-parent adoption), or
- absent a biological parent’s consent, the Court may find that adoption is in the minor child’s best interests despite the natural parent’s objection based upon competent evidence that such parent is unfit or unable to provide the necessary care, custody and control of the minor child, or,
- the consent of the biological parent is not required for the Court to approve an adoption and therefore Terminate Parental Rights of the biological parent in certain cases of abandonment or willful neglect of the child’s care and protection.
A Judgment of Termination of Parental Rights, or a Judgment of Adoption, will cancel the child support obligation of the terminated parent, however, all child support owing prior to the date of the Judgment will still be owed.
- Why is child support calculated based on my gross income when I only bring home about a third of that amount?
How Child Support is calculated in Missouri:The formula uses a table based on the parents’ combined adjusted gross income and the number of children to be supported, with adjustments for other child support being paid under court or administrative order and monthly court-ordered maintenance being paid.
Why Missouri law calculates Child Support the way it does.
The factors that have been considered by the Missouri Legislature in devising its formula for calculating the amount of child support include:
- The financial needs and resources of the child;
- The financial resources and needs of the parents;
- The standard of living the child would have enjoyed had the marriage not been dissolved;
- The physical and emotional condition of the child, and the child’s educational needs;
- The child’s physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and
- The reasonable work-related child care expenses of each parent.
- Can a parent voluntarily terminate, relinquish, or waive their parental rights in order to avoid or stop a child support obligation?
- What are the rules for when a child is emancipated?
The obligation of a parent to make child support payments shall terminate:
When the child dies; or
When the child marries; or
When the child enters active duty in the military; or
When the child becomes self-supporting and the custodial parent has relinquished the parent from parental control; or
When the child reaches the age of 18; unless enrolled in and attending a secondary school program of instruction, in which case, child support shall continue until the child completes the program or reaches age 21, whichever occurs first; but,
If the child is physically or mentally incapacitated from supporting him/herself and insolvent and unmarried, the court may extend the parental support obligation indefinitely.
OTHER CUSTODY CONSIDERATIONS
It is public policy in Missouri that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except where proven differently. It is also public policy to encourage parents to participate in decisions affecting the health, education and welfare of their children, and to resolve disputes involving their children amicably through alternative dispute resolution.Courts with jurisdiction, therefore, shall determine the custody arrangement which will best assure both parents participate in decision making and have frequent, continuing and meaningful contact with their children; and shall enforce visitation, custody and child support orders in the same manner.
In Missouri family law cases, the person who files the case with the Court is called the Petitioner, and the other party is called the Respondent.
Once a Petition involving custody or visitation issues has been filed, the Petitioner and Respondent shall submit a proposed parenting plan, either individually or jointly, within 30 days after the non-filing party is either served or files what is called an Entry of Appearance. The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children and is required to include the following:
- A specific written schedule detailing the custody, visitation and residential time for each child with each party including major holidays, school holidays, child’s birthday, Mother’s Day, Father’s Day, weekday and weekend schedules, times and places for transfer of the children, etc.;
- A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including educational decisions, medical, dental and health care decisions, extracurricular activities; child care providers; dispute resolution procedures, etc; and
- How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines will be paid, including the suggested amount of child support to paid by each party, the party who will maintain or provide health insurance for the child, how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties, child care expenses, etc.
The court shall determine custody in accordance with the best interests of the child. In making a determination, the court shall consider all relevant factors including the following:
- The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
- The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
- The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
- Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
- The child’s adjustment to the child’s home, school and community;
- The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
- The intention of either parent to relocate the principal residence of the child; and
- The wishes of a child as to the child’s custodian.
The court will consider the following forms of custody:
- Joint physical and joint legal custody to both parents, which shall not be denied solely because one parent opposes this arrangement, and the residence of one of the parents shall be designated as the address of the child for mailing and educational purposes;
- Joint physical custody with one party granted sole legal custody, and the residence of one of the parents shall be designated as the address of the child for mailing and educational purposes;
- Joint legal custody with one party granted sole physical custody;
- Sole custody to either parent; or
- Third-party custody or visitation.
In any court proceedings relating to custody of a child, the court shall not award custody or unsupervised visitation of a child to a parent if he/she or any person residing with him/her has been found guilty of, or pled guilty to, various offenses where a child was the victim.
DIVISION OF PROPERTY
In a proceeding for dissolution of marriage or legal separation the court shall set apart to each spouse such spouse’s non-marital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors including the following:
- The economic circumstances of each spouse at the time the division of property is to become effective;
- The desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
- The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
- The value of the non-marital property set apart to each spouse; and
- The conduct of the parties during the marriage.
Marital property is defined as all property acquired by either spouse after the marriage, except the following:
- Property acquired by gift, bequest, devise, or descent;
- Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
- Property acquired by a spouse after a decree of legal separation;
- Property excluded by valid written agreement of the parties; and
The increase in value of property acquired prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership.
Property categorized as separate property shall not become marital properly solely because it may have become commingled (joined) with marital property.
LINKS TO STATE RESOURCES
Forms for child support legal actions, includes Child Support Amount Calculation Worksheet and Schedule of Basic Child Support Obligations.
Links to Local County Resources and Services.