FAQ

How Do I Begin the Divorce Process?

You first meet with a lawyer who will take down the appropriate information to prepare the Petition for Dissolution of Marriage and who will give you two financial statements to complete: Statement of Property and Statement of Income & Expenses. If you have children, you will also be given a standard Parenting Plan to review and complete as well as a Notice of Parent Education Class and Mediation Services. Once the Petition and financial statements are completed and signed, they are filed with the Circuit Clerk’s office to begin the process. Your spouse can be served with the documents by: the Sheriff’s office; by picking them up at the courthouse; by signing a Waiver of Service or by having his or her lawyer accept the documents.

How long do I have to live in Missouri before filing for divorce or legal separation?

90 days or more

Is there an advantage to the party who first files for the dissolution of marriage?

Are the parties required to be separated before filing for dissolution of marriage?

What is the Automatic Family Court Order in St. Louis County Circuit Court?

Once a party files a petition for dissolution of marriage, legal separation, annulment, declaration of paternity or child custody and/or support or a motion to modify any of the foregoing, Rule 68.2 governs the actions of the Petitioner (the person filing the action) and the Respondent once he or she has been served with the papers. The gist of Rule 68.2 is that with some exceptions, neither party (1) shall harass or abuse the other party or their minor children; (2) shall conceal or damage property owned solely by the other party or jointly with the other party; (3) shall cause certain insurance coverage to be terminated — medical insurance; automobile or disability insurance; (4) shall shut off or cause utilities to be terminated to the residence of either party; (5) shall move their minor children outside of Missouri nor deprive or hinder the other party from having contact with the children; (6) shall close or borrow against any investment account, certificate of deposit; and (7) shall incur extraordinary credit card or other debt.

What are the grounds for getting divorced in Missouri?

The standard for getting your marriage dissolved in Missouri is as follows: there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.

What is the difference between dissolution of marriage and a legal separation?

While the court costs are a little higher to file for divorce, the overall process is the same: filing a Petition and financial statements and ultimately getting the same issues such as child support, child custody, division of property and maintenance resolved either through a settlement or trial. However, the final document signed by the court will be a judgment of legal separation and not a judgment of dissolution of the marriage. Under Section 452.360 (3), you cannot remarry until you obtain a judgment of dissolution, which the parties can request by filing a Motion To Convert no earlier than 90 days after the judgment for legal separation was entered.

How does an annulment differ from a divorce?

An annulment is a legal procedure that dissolves a couple’s marital status by establishing that a valid marriage never existed from the beginning. Possible grounds for seeking an annulment: duress; spouse is mentally incapacitated; permanent impotency; underage marriage; same sex marriage; bigamy.

How do I get access to the financial records of my spouse?

There are certain discovery rules governing all divorces in Missouri such as interrogatories, depositions and requests for production of documents. St. Louis County has Rule 68.5 providing for mandatory exchange of documents. Under this rule, the parties are required to exchange certain documents within 60 days of the service of summons. The documents to be exchanged under 68.5 (A) include: (1) federal and state income tax returns for the preceding 3 years; (2) wage stubs or equivalent for the three months preceding the filing of the case; (3) documents for the previous 12 months evidencing the following expenses for the parties’ children: work-related child care costs; premium payments for health insurance coverage and dental and orthodontic costs.

Under Rule 68.5 (B), the following documents must also be exchanged in cases involving an award of maintenance, an award of property or a division of debt or a request for payment of attorney fees: (1) three most recent statements for all bank accounts and other financial institutions; (2) the most recent benefit statement for any retirement plan; (3) any appraisals of any marital or separate property obtained in the 12 months preceding the filing of the action; (4) credit card statements and store charges for purchases occurring during the 3 months preceding the filing of the case; (5) the most recent mortgage statement for any real property owned jointly or separately by the parties and copy of the deed for any such property; and (6) the most recent balance statement for any existing debt owed jointly or separately by the parties.

Can either party file for divorce if the wife is pregnant?

Pregnancy does not keep a party for filing for divorce but a Missouri judge will not sign an order dissolving the marriage until after the child is born.

Do I file for divorce in the county where we married?

In Missouri, the divorce can be filed and heard in the county where either spouse resides, or by mutual consent, in any county in Missouri.

Under what circumstances will a party be given maintenance and how much will be awarded?

Section 452.335 provides that a spouse seeking an award of maintenance (historically called alimony) must show (a) a lack of sufficient assets to provide for his or her reasonable needs and (b) he or she is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be forced to work outside the home.

There are no specific formulas for an award of maintenance and thus, it is looked at on a case by case basis. A variety of factors are used in deciding in how much maintenance to award: the length of the marriage; age; health; work history; educational background, ages and health of the children and income of the parties; standard of living during the marriage and the conduct of the parties. Individual advice from an attorney is needed.

How is child support calculated?

Child support is calculated according to a chart, which includes income from both parents. Additional factors are expenses for childcare; health insurance and extraordinary expenses for the children. There may also be a visitation credit, depending upon the time spent with the non-custodial parent. There are times when a judge may decide not to follow the chart. Individual advice from an attorney is best.

How do I collect the child support from my former spouse?

The court will sign a Wage Assignment Order that will be sent by the Circuit Clerk’s office to the spouse’s employer directing the employer to withhold the child support from paychecks. The funds are sent by the employer to the Family Support Payment Center in Jefferson City. The Center keeps track of the payments and sends a check to the recipient spouse.

What is meant by legal custody versus physical custody of children? What is meant by joint versus sole legal custody?

Legal custody concerns the decision making for the children, including decisions regarding education, medical care, religious upbringing, extracurricular activities. Physical custody refers to whom the children are living with on any given day.

If the court awards joint legal custody, the parents are required to agree, confer and work together to make the decisions regarding their children. In the event of a dispute, the Parenting Plan in the judgment for dissolution will often require the parents to seek mediation of the dispute before going back to court.

If the court awards sole legal custody, both parents have input into the decisions regarding the lives of the children but if a dispute arises, the parent with sole legal custody can make the decision.

What is joint physical custody versus sole physical custody?

In a typical joint physical custody arrangement, the parties have the children on alternating weeks or part of the week during one week with the other part the following week. In other words, the parents try to structure the schedule so that each has a significant, but not necessarily equal, periods of time with the children.

Sole physical custody does not necessarily mean that the non-custodial parent has minimal contact with the children. A common schedule provides that one parent has the children for most of the time during the week and the other parent has the child on alternating weekends, one night per week, alternating holidays and 2-6 weeks in the summer.

What is a Parenting Plan?

A Parenting Plan is essentially a written document signed by the parents and the judge summarizing many aspects of the children’s lives such as support, physical custody; legal custody; medical care costs; educational expenses. In St. Louis County, for example, the parties are required to file their proposed Parenting Plan within 30 days of service of the original petition or motion on the other party.

If the parties cannot reach an on custody, what standard would a Missouri judge use to decide with whom the children will live?

The judge looks at several factors in trying to determine what arrangement is in the best interests of the minor children. Those factors include: (1) the wishes of the parents as set in their respective parenting plans; (2) the needs of the children 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 children; (3) the interaction and interrelationship of the children with parents and any other persons who may significantly affect the child’s best interests; (4) which parent is likely to allow the children frequent, continuing and meaningful contact with the other parent; (5) the children’s adjustment to the family home, school and community; (6) the mental and physical health of all individuals involved, including any history of abuse; (7) the intention of either parent to relocate the principal residence of the children and (8) the wishes of a child as to his or her custodian.

What is the role of a guardian ad litem in custody disputes?

If custody is a contested issue, a judge may appoint a guardian ad litem who will serve as the legal representative of the child at a hearing and may examine, cross-examine, subpoena witnesses and offer testimony. Note a judge SHALL appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.

Are divorced parents restricted in their ability to relocate? Is notice required?

Yes to both questions. Whether you are the sole custodian or under a joint physical custody plan, you must provide notice if there is a change in the principal residence of a child for 90 days or more. Notice to the other parent must be given at least 60 days in advance of the move. The notice must be in writing, sent by certified mail, return receipt requested. The notice must include the following: (1) the intended new residence, including the specific address and mailing address, if known, and if not known, the city; (2) the home telephone number of the new residence, if known; (3) the date of the planned move; (4) a brief statement of the basis for the proposed relocation of the child(ren); and (5) a proposal for a revised custody schedule.

What happens after notice is given of a proposed move?

Once a parent receives notice of a proposed relocation, the parent seeking to prevent the move must file a motion with the court, including an affidavit setting out the specific reasons for opposing the relocation, within 30 days of getting the notice. Failure to file a timely motion results in an absolute right for the other party to go ahead with the planned move.

Once the party seeking to move has received the motion and affidavit objecting to the relocation, he or she has 14 days to file a counter-affidavit describing the facts supporting the change of residence for the minor children.

If my former spouse gets behind in child support payments, do I still have to follow the Parenting Plan regarding temporary custody and visitation?

Yes, you must follow the provisions of the Parenting Plan. The right to temporary custody and visitation is not conditioned on payment of child support.

When does child support end?

The obligation to pay child support typically ends as follows: (1) the child reaches age 18, or the child dies, marries or enters active duty in the military; (2) however, if the child is enrolled in a secondary school such as a high school, when he/she reaches age 18, the support obligation continues until the child leaves school, completes the program or reaches age 21, whichever comes first; (3) following completion of high school or other secondary school, the child has until October 1st of that year to enroll in post-secondary school – whether trade school or a four year college – and the child support obligation will continue until the child completes the program or reaches age 21, whichever comes first.

Note certain requirements must be met to remain eligible for continued child support while pursuing post-secondary education: (1) at the beginning of each semester, the child must provide a transcript or similar official document issued by the school to the paying parent identifying the courses enrolled in and completed for each term, the grades and credits received for each course and an official document showing the courses enrolled in for the upcoming term and the number of credits for each course; (2) the child must enroll in and complete 12 credit hours per semester unless the child is employed 15 hours or more per week resulting in a lowered requirement of completing 9 credit hours per semester; (3) the child must receive grades sufficient to re-enroll at the school; (4) when enrolled in at least 12 credit hours, child support may terminate if the child receives failing grades in one-half or more of his/her course load. Another possible basis for termination of child support would be a failure to produce documentation of the grades within 30 days of receipt of the grades from the school.

This area is complex and it is important that you contact a very experienced attorney such as Pam who can advise of you of your child support obligation once she knows all the facts in your case.

How are college expenses generally handled?

Generally the parties split college expenses such as tuition, room & board, books and fees up to a maximum of the then similar expenses at the University of Missouri at Columbia. How the expenses will be split varies from case to case whether it is done on a 50-50 basis, on a pro rata share based on income, etc. Individual advice with a lawyer is needed.

What if I lose my job – can I stop paying child support until I get another job?

No, you cannot arbitrarily stop paying child support.

What if I file bankruptcy – can I stop paying child support?

No. Generally, child support payments cannot be discharged in bankruptcy. Thus, if you are behind in child support payments, you will not be freed of the obligation by filing for bankruptcy.

Is the parent receiving child support required to notify the paying parent that a child has become emancipated?

Yes. If the receiving parent does not give notice and continues to collect child support, the parent will have to refund the overpaid support plus 9% interest.

Will I be ordered to pay my spouse’s attorney’s fees?

Under Section 452.355, the court may order one party to pay another party’s attorney’s fees. In making an award of fees, the court will consider the financial resources of the parties; the merits of the case and the actions of the parties while the case are pending.

What is separate versus marital property?

Generally, property obtained during the marriage will be considered marital property. Separate property is generally those assets brought into the marriage (and kept in that party’s name) as well as assets acquired during the marriage by gift or inheritance. The separate property of the parties is to be set-aside to the appropriate party in the dissolution of marriage or legal separation case. Note, however, the Missouri Supreme Court has held that a spouse’s contribution to otherwise separate property creates a marital interest that can be divided by a court. There must be proof of: (1) a contribution of substantial services; (2) a direct correlation between those services and the increase in value; (3) the amount of the increase in value; (4) performance of the services during the marriage; and (5) the value of the services, the lack of compensation or inadequate compensation.

What are the factors used to divide marital property?

The court will consider the factors set out in Section 452.330: (1) the economic circumstances of each spouse; (2) the contribution of each spouse to the acquisition of the marital property, including homemaking services; (3) the value of the separate property set apart to each spouse; (4) the conduct of the parties during the marriage; and (5) the custodial arrangements for the minor children.

My spouse and I are not getting along and I am considering moving out of the house, have I abandoned my claim to the house being considered marital property?

How do retirement plans get divided?

The plans are normally divided up following the dissolution of marriage through an order referred to as a Qualified Domestic Relations Order (“QDRO”). Generally, the QDRO will state: (1) what benefits will go to the alternate payee (usually the spouse or former spouse of the retirement plan participant); (2) when the alternate payee can receive the benefits; (3) how the benefits will be paid – such as a lump sum or annuity payments; (4) what happens if the alternate payee dies before the payments are completed; or (5) what happens if the participant dies before payments are completed to the alternate payee. The QDRO is usually drafted by the attorney for alternate payee and then reviewed by the participant’s counsel as well as the employer before the document is presented to the court for signature.

What will my divorce cost?

Lawyers in the St. Louis area generally handle divorces on an hourly basis rather than a fixed fee basis charge. The prevailing hourly rate varies depending upon the size of the firm and the experience of the attorney. You should expect an hourly rate beginning in the $175.00-$200.00 range. A deposit will be expected with a minimum deposit likely to fall around $2000.00 plus filing fee.

What can I do to help control the fees and expenses?

There are several recommendations: (1) avoid costly subpoenas by being cooperative in gathering the documents, whether required to be exchanged as in St. Louis County or simply requested by the other side; (2) once all the necessary information has been obtained, discuss your settlement demands with counsel and direct him or her to make a settlement offer to opposing counsel – remember there is always time for a trial; (3) don’t waste or squander assets prior to or while the divorce is pending and (4) don’t play games by trying to hide assets, debts or income, particularly if you are self-employed.

How long will it take to get divorced or a legal separation?

The case must be on file with the court for at least 30 days before a judge can sign a judgment of legal separation or dissolution of marriage. If the parties cannot reach a quick settlement, the process can last 6-12 months.

Can I request restoration of my maiden name as part of the divorce proceedings?

Yes, the request is made in the Petition for Dissolution of Marriage and then in the Judgment of Dissolution of Marriage signed by the Judge. This request would not add to the fees in the divorce proceedings. If, however, you do not make the request known then and want to make the change later, you will be faced with going through the formal Name Change process in Missouri.

Can I modify the court’s original judgment?

Yes. Either party has the option to pursue a modification of the court’s prior judgment as it relates to child custody, visitation, child support, or spousal maintenance (but rarely for property division). Generally, these actions are referred to as Motions to Modify. With some exceptions, the Motions to Modify require a substantial and continuing change of circumstances.

What is a prenuptial agreement? Could a married couple enter into a postnuptial agreement?

A prenuptial agreement is a contract entered into by a couple prior to marriage to determine their respective rights and liabilities in the event of a divorce. A prenuptial agreement may also determine the distribution of an estate in the event of the death of one or both parties. Although much less common, postnuptial agreements are legal in Missouri and enforceable.

The standard for determining the validity of both kinds of agreements (prenuptial and postnuptial): (1) must be entered into freely, fairly, knowingly, understandingly and in good faith with full disclosure and (2) must not be unconscionable. For the first factor of adequate disclosure, the courts will consider access to independent counsel, the amount of time available to review the agreement, the bargaining positions of each spouse in terms of age, sophistication, education, employment and experience, and whether assets were fully disclosed. The second factor, unconscionability, relates to a review of the substantive fairness of the agreement. Note where an prenuptial agreement permits each party to retain a share of the marital property in the event of a dissolution of the marriage, albeit a disproportionately small one, courts are more likely to uphold and enforce the agreement.

What is the process for a name change?

A Petition for Change of Name is filed to start the process. The court must find that the requested name change is proper and not detrimental to the interests of anyone else. For example, a person is not allowed to change his or her name to avoid judgments or to avoid debts and obligations. Assuming the change is granted and an order entered by the court, the petitioner must publish the change of name once a week for three consecutive weeks in a newspaper of general circulation in the county where the petitioner lives.

What issues are involved with a stepparent adoption?

Missouri is like most states in that a stepparent adoption is much easier to accomplish than a non-relative adoption. The most problematic issue may be getting consent from the other birth parent or alternatively, having parental rights terminated. Of course, some parents will consent if they are relieved of any obligation to pay back child support as well as future child support. Note if the parent has had no contact with the child for 6 months or has paid no child support for six months immediately prior to the filing of the petition for adoption, consent is not required.

Missouri Supreme Court Rules do not permit attorneys to advertise that we specialize in any particular field or area of law. By describing the areas of law in which I practice is not intended to suggest specialization in those areas.

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