We recognize that family law cases always come with strong emotional feelings involved. A lot is at stake and it is a difficult process to navigate without a competent attorney who can guide you through the intricacies of domestic litigation in Missouri.
Dissolution of Marriage (Divorce) The legal standard for divorce in Missouri is whether the marriage of the parties is “irretrievably broken.”For a court to grant a divorce, then, it must find that there is no reasonable likelihood that the marriage can be preserved, and, therefore, that it is irretrievably broken. In practice, this is often a point of agreement between the parties. Indeed, the parties usually agree that a divorce should be granted. As such, it is the terms and conditions of the divorce that are often in dispute. Among the most common things generally in dispute:
- Child Custody. Courts will make child custody orders consistent with the best interests of the child. There are two types of custody in Missouri: physical custody and legal custody. Physical custody refers to the time each parent actually spends with the child. Legal custody refers to the power of a parent to make decisions on the child’s behalf. With respect to physical custody, although there is a presumption that it is in the best interests of the child to have frequent and meaningful contact with both parents, a Court will, upon proper evidence, enter Order that it feels is warranted under the circumstances. There are three (3) general types of physical custody arrangements: (1) joint physical custody, (2) sole physical custody with supervised visitation, and (3) sole custody without supervised visitation. With respect to legal custody, there is either (1) sole legal custody or (2) joint legal custody.
- Child Support. Once child custody is determined, child support is generally fairly easily to figure out. In Missouri, Supreme Court Form No. 14 is the guiding light in calculating child support. It takes into account, among other things, the parties’ gross income, health insurance costs, the amount of overnight stays they have with the child, and several other financial/extraordinary expenses.Whatever Form 14 computes is considered the presumed amount of child support. Unfortunately, Form 14 is anything but a certain thing. It has quite a bit of flexibility in the joints and can vary wildly from time to time. It is for this reason that parties and courts very often rebut From No. 14 as unjust and inappropriate and instead enter a more appropriate amount.
- Parenting Plan. Missouri law requires that when there are children in a divorce proceeding details provisions regarding, among other things, child custody and child support must be memorialized. As detailed below, the parenting plan is subject to modification.
- Property Division. Missouri Courts are obligated to make an equitable division of all marital property. They are under no obligation to divide separate property. Broadly speaking, marital property is all property earned by the marital partnership during the marriage. Separate property is all property which, as you might have guessed, was owned by the parties separately before the marriage. Included in the meaning of “property” in a divorce is also debt. Both assets and liabilities must be divided equitably. In making an equitable division, Courts can consider a number of factors, including marital misconduct and litigation misconduct. Property division can be particularly problematic with things such as the family home, retirement benefits, life insurance, pensions and other property which doesn’t lend itself to division.
- Maintenance. Formerly known as alimony, maintenance refers to payments made by one spouse to another spouse to maintain as near as possible the relationship that the spouse had during the marriage. More than anything, the primary consideration in determining whether maintenance is appropriate is whether it is required to allow one spouse to meet his or her reasonable needs. It is very often the case that when a divorce decree does not order maintenance it is non-modifiable. Great care, then, needs to be exercised in evaluating the applicability of maintenance.
Child Custody Modification As referenced above, Parenting Plans and other provisions of a divorce decree as applied to children are subject to modification. Frequently, circumstances will change with respect to the children and parents which necessitate a change in the child custody arrangements. More precisely, a court will modify a child custody order if there has been a change in circumstances which make the existing order unreasonable. There is a sea of case law and myriad of statutory provisions which discuss what can be considered a change in circumstances for purposes of child custody. The best interests of the child is always the most important factor — if not the sole factor.
Child Support Modification As with child custody, child support is generally modifiable. Child Support should be modified when there has been a substantial and continuing change in circumstances which renders the underlying child support order unreasonable. The traditional approach to child support modification dictates that when there is a twenty percent (20%) difference in the amount of the Form 14 at the time of the initial support order and the present then there is a rebuttable presumption that child support should be modified. Circumstances which often lead to child support modification include: one parent having a loss/cut in income, one parent having an increase in income, and unforeseen expenses.
Paternity A legally cognizable parent-child relationship must exist before a child support or child custody ordered may be entered by a Court. When a child is born during marriage, the husband is presumed to be the father. When a child is born outside of a marriage, things are less clear. In circumstances such as these there usually has to be a separate suit initiated in which paternity has to be legally proven. While most of the times a party will admit paternity, it is not uncommon that blood tests and other evidence has to be utilized to help the Judge determine the biological father.
Motion Pendente Lite (PDL) In almost all family/domestic cases, Missouri statutes authorize one party to file a Motion Pendente Lite to ask the Court that pending the litigation it enter appropriate orders of temporary child custody, temporary child support, temporary maintenance, or attorney fees. PDL orders are not final orders, but they may be appealed to the Court of Appeals. Thus, even though they do not fully dispose of a case, they can have a very large impact on a given case’s outcome.
Legal Separation Though it may not seem immediately practical, legal separation is when a Court allows parties to a marriage to be separated with child support, custody, and maintenance orders — without issuing an order and decree of dissolution of marriage. Legal separation is often appropriate for parties who need time apart but have yet to decide on whether to pursue a divorce. If they are able to reconcile, the legal separation may be dismissed and the marriage can resume. If they are unable to reconcile, the legal separation can be converted into a dissolution of marriage proceeding. It is also the case that legal separation is a valuable tool if the parties seek a divorce but their personal beliefs, religious beliefs, or conscience does not want the finality of divorce.
Protective Orders (Ex Parte Orders & Full Orders) An ex parte order of protection is an emergency Court order which prohibits another person from abusing, harassing, or stalking you. The application/petition for an ex parte order itself is relatively straightforward. However, usually fourteen (14) days later a full order of protection hearing is set for trial. At that time, the petitioner requesting the ex parte order will have an opportunity to present his or her case to the judge. The Respondent, in turn, will have an opportunity to present his or her side of the case. Violating an ex parte order or full order of protection can have serious ramifications. The full order of protection trial is just like any trial in that the typical evidentiary and procedural rules are in play. Further, the existence of a full order of protection can have serious consequences for background check purposes because it is a finding of fact that someone has abused, harassed, or stalked another. They must be taken seriously.
Grandparent Visitation Rights In certain circumstances, a Missouri Court is permitted to enter an order allowing a grandparent reasonable visitation rights. Section 452.402 RSMo articulates when such an order is appropriate: (1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall have the right to intervene in any dissolution action solely on the issue of visitation rights. Grandparents shall also have the right to file a motion to modify the original decree of dissolution to seek visitation rights when visitation has been denied to them; or (2) One parent of the child is deceased and the surviving parent denies reasonable visitation to a parent of the deceased parent of the child; or (3) The child has resided in the grandparent’s home for at least six months within the twenty-four month period immediately preceding the filing of the petition; and (4) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days. However, if the natural parents are legally married to each other and are living together with the child, a grandparent may not file for visitation pursuant to this subdivision.
Child Custody/Support Enforcement Child custody and support orders are part of a court decree. They must be followed closely. One party’s failure to follow the Parenting Plan or court order can result in the party being held in contempt of court. Being held in contempt of court is a very serious matter because it is quasi-criminal. In addition to the typical consequences — late interest on past due child support or maintenance, etc. — the Court can order incarceration or shock jail time in cases of willful or egregious noncompliance.
Frequently Asked Family/Domestic Law Questions:
How much are attorneys fees? Attorney fees will depend on whether your case is contested or uncontested. We handle uncontested matters on a flat fee basis (anywhere from $500 to $3,000). Contested matters — including those cases that begin uncontested and become contested — are handled on an hourly basis. The legal professional rules of responsibility prohibit attorneys from handling domestic/family matters on a contingent fee basis. At all times you will be responsible for court costs, which includes the filing fee, service of process fee, and the costs of any parenting classes or mediation. As always, initial consultations are free.
When do you consider a divorce to be contested? We consider a divorce to be contested when one or more of the party’s dig their heels into the ground and refuse to consent on an aspect of the divorce. There are several potential points of disagreement: property division, the marital home, debts, child custody, child support, maintenance, and attorney fees. As such, in many divorce cases, the potential for a prolonged contest may be high.
When do you consider a divorce to be uncontested? A divorce is considered to be uncontested if it is solely a matter of navigating all of the legal paperwork and procedure and reducing all of the information in a form acceptable for the Court so it enters a divorce decree without any sort of fact-finding inquiry.
What/who is a guardian ad litem? A guardian ad litem is an attorney appointed by the Court to represent minor children in cases in which physical or legal custody is in issue. The appointment of a guardian is largely discretionary by the court; however, there are certain circumstances when the court is obligated to make an appointment. The parents/litigants are generally jointly responsible for the guardian’s fees.
How is child custody impacted during a divorce if one party lives in another State? Obviously, there are geographical concerns which render it impossible for the Parties’ to have a normal, customary custody plan in this situation, particularly if one party lives a few states away. The primary state first needs to be picked out. Will the Child primarily reside in Missouri or another state? As always, the best interest of the child is the guiding light in this determination? Has the child become accustomed to the State? Are there family members and friends in the State? Is the schooling better in the State? Once that is determined, a reasonable visitation schedule needs to be set in place and costs of transportation need to be discussed.
How is property divided? Courts are obligated to divide marital property, but do not divide non-marital property (though it can consider a party’s non-marital property in dividing the marital property). The distinction between marital property and non-marital property is a legal question that often has significant consequences in a given case. Generally, marital property is all property which is accrued during the marriage. Subject to certain statutory and case principles, the division of marital property is largely discretionary.
Is valuing marital property difficult? For the most part, no. There are, though, certain assets which are a little more tricky, such as a business, home, jewelry, or other esoteric items of property that have high pecuniary value. With a home, for instance, the value is usually constantly in flux. An appraisal is generally done to determine its worth. The same process will apply to a business, except that calculating a businesses’ worth can be more problematic when valuing goodwill, inventory, etc.
How is the marital home divided in a divorce? A home is oftentimes the single biggest purchase that can be made in one’s life. It is also oftentimes the biggest asset in a divorce proceeding. Several options are available in diving the home, which in turn depends on a number of factors. Is there a mortgage on the home? Can only one spouse afford the upkeep of the home? Are there children who require a larger home? If there are children, is the home in a favorable school district. Is there not enough liquid cash which makes it more advisable to sell the home and divide the proceeds? There are no hard and fast rules, so it depends on the particularities of a given case.
Is fault or misconduct considered by the Court in a Divorce? Courts may consider fault/misconduct in a divorce, but it seems to be fairly rare. As referenced above, all that is required for a Court to grant a divorce is a showing that the marriage is irretrievably broken. This is substantiated via oral testimony by a party. Missouri statutes do state that marital misconduct can be considered in dividing marital property; it also is something that a Court consider in awarding maintenance/alimony, as discussed below. Yet, for reasons which are easy to understand, unless there some very severe instances of misconduct, most courts are reluctant to place great weight in “smaller” instances of misconduct for fear of creating a mud-slinging competition in Court. Judges won’t stop the evidence from being presented, but they seem to shy away from it.
When is maintenance/alimony awarded? As with dividing marital property, the award of maintenance (formerly called alimony) is largely discretionary. Missouri statutes list a number of factors for the Court to take into account when a party is requesting maintenance. Chief among these factors are the length of the marriage and whether one party’s reasonable needs and accustomed lifestyle will not be maintained without an award of maintenance.
How is Child Support calculated? Child Support is calculated in Missouri using Civil Procedure Form No.: 14, which is a schedule that computes the presumed child support amount based on income, extraordinary child expenses, a child’s overnight stays with a party, etc. Although Form No.: 14 provides you with the presumed amount of child support, its calculation is often very flexible and subject to disagreement. Furthermore, when appropriate, the Form No.: 14 amount may be rebutted as unjust and inappropriate in certain cases.
When does Child support stop/end in Missouri? Consult the Court Order first, as it may indicate otherwise. Generally, though,child support ends when the child died, marries, enters the active duty in the military, becomes self-supporting, or turns 18 unless the child is physically/mentally incapacitated, or the child enrolls in a higher education program
Is a divorce decree modifiable? Consistent with Missouri law a divorce judgment/decree becomes “final” thirty (30) days after the Court enters its order. The 30 days period is in place so that any needed modifications may take place. After the 30 day period, one would have to look at the contents of the judgment/decree to determine if a modification is possible. Provisions regarding child custody & support, however, are always modifiable upon an appropriate legal & factual showing that there has been a sufficient change in circumstances.
What is the purpose of a Paternity proceeding? Under Missouri law, when a child is born during the marriage the husband is presumed to be the legal father of the child. This same presumption does not exist when the child is born out of the marriage, even if the father’s name is on the birth-certificate. Accordingly, before a court can enter an order of child custody and/or support, it must first determine that a legally cognizable parent-child relationship exists.
How long does a typical case take? Missouri has put procedures in place to speed up domestic/family cases through several initiatives at the county and state levels. Typically, most cases will last less than a year — and generally be resolved in 6-8 months. It is the complicated cases which can take over a year. Uncontested cases, on the other hand, can theoretically take thirty (30) days to complete, but, based on experience, it usually takes two (2) months.
What should I do if the other party has not complied with the court judgment? Speak with an attorney. Depending on the nature and severity of the alleged violations, a Motion for Contempt and/or a Motion to Enforce may be appropriate?
Can I move out of state with my child and relocate? If there is a controlling child custody, child support, and parenting plan in place made part of an existing Court Judgment, you need to follow a few steps before even considering this. Missouri Statutory section 452.377 controls relocation of a child by a parent. Under the relocation statute, the parent requesting relocation must send notice of the proposed relocation via certified mail list, among other things, the intended new residence, new contact information, and reason for the move. The statute further instructs courts to consider failure to follow the relocation statute as a factor to consider in allowing child custody to be modified and a sufficient basis for the other party to obtain attorney fees in contesting the matter.
If after I relocated with my child and I wish to modify the custody/support decree, can I do so in the new State of residence? Yes, but it depends on the language in the initial custody/support decree and how long you and the child have resided in the new State. There are several interstate child custody acts which relate to jurisdiction. A general rule of thumb to keep in mind is that the new State can have jurisdiction over the matter after the child has resided there for six (6) months. It is also sometimes necessary that there be a conference between the Courts of the two States to determine whether there are any compelling interests which require either Court to decline jurisdiction. Furthermore, there does exist in Missouri temporary emergency jurisdiction when there is a threat to the child.
I was just served with an ex parte order of protection; what should I do? Again, speak with an attorney. If you do not appear in court on the date designated on the documentation, a default judgment may be entered against you, meaning that the individual who filed the ex parte order will be entitled to pretty much everything he/she is requesting from the court.
Do you handle adoptions? No.
Do you handle guardianship, conservatorship, or termination of parental rights proceedings? Yes. See generally the probate/estate page for information on guardianship & conservatorship, as the probate courts typically handle these cases. With respect to parental rights proceedings, these are handled, albeit infrequently. Parental rights can be terminated voluntarily or for cause.
What’s the difference between the department of social services and the division of family services (“DFS”) and courts? For one, DFS proceedings are much more informal and are often conducted over the telephone with the hearing referee being in Jefferson City, Missouri. Court proceedings are much more formal and follow traditional procedural rules regarding discovery, motion practice, and trial. While both can issue binding orders, court rulings trump and supersede administrative agency rulings.