Divorce, Missouri Style

What is a "dissolution of marriage"?
In most jurisdictions, the legal mechanism for ending a marriage is called "divorce". In Missouri, it is called "dissolution", because the "bonds of matrimony" are dissolved. Missouri is a "no-fault" state. If one party testifies that "the marriage is irretrievably broken" and "there is no likelihood that the marriage can be preserved", the parties get their dissolution and the marriage is ended. The entry of an order dissolving the marriage is final when it is entered, subject to the right to appeal, but if the appeal does not challenge the finding that the marriage is "irretrievably broken", the parties are "divorced" and free to behave as an single person, including remarrying. Section 452.360

Is there anything I should know before beginning Dissolution of Marriage Action?
First and foremost, you should understand that when the parties agree and get along, the road is easy; when the parties disagree and quarrel, the road is long, hard and expensive. The changes in the law on custody and visitation, and child support in the last two years in Missouri have been significant. There is now a separate "Family Court", with Family Court judges, who see dissolution proceedings day in and day out and who closely scrutinize any proceeding involving children. Rigorous standards are set and followed for determining who gets the kids, where, when, how and with what restrictions.

If you own significant property -- a house, stocks, bonds, money market accounts -- you should weigh the contribution of each party to the purchase or value of the property, and figure that it is very likely each party will get their contribution back and one-half of any accrued value. Property division is not 50/50 in Missouri by statute, but courts will generally make a 50/50 division unless there are compelling reasons not to do that. If you are planning on fighting for something other than a 50/50 split of property, subtract out several thousands of dollars in attorneys fees from your share and decide if you think a fight is worth the cost.

In Missouri, there has been a major movement towards alternative dispute resolution regarding "parenting issues" -- custody and visitation. You will have to go to a minimum number of hours of mediation if you cannot agree on a parenting plan, and if the court thinks it is necessary or will be helpful, you will have to continue mediating separate issues. If you quarrel over parenting issues, a guardian ad litem will be appointed for your child or children. The parties share the cost of all these extra services, so you are well advised to try to agree from the start or you will end up spending thousands of dollars on professionals who will then have the freedom to make recommendations to the court about how your children should spend their lives. Meanwhile, your children will become pawns in your fight, and might end up hating both of you. Pick your fights carefully.

And, know this:

When you walk out of a marital residence, take EVERYTHING and ANYTHING that you cannot honestly tell yourself you can live without. That means, the wedding pictures, the baby shoes, your favorite sweater, the cat, the dog, and the bank accounts. Seriously, you can always give it back, but if I had a nickel for every client that DID NOT do that, claiming the other party would be "fair", and then regretted their naivete, I would be able to retire.

How do I start my case to get a Dissolution of Marriage?
Under the new Missouri Laws effective 28 August 1998, to start an action for a dissolution of your marriage, you must:

1. File a petition, which is the initial pleading that tells the court who you are, who your spouse is, where you were married, and other things about your situation. You must include EVERYTHING listed in the statute AND it must be signed by you and your signature notarized. Section 452.310.2
2. If you have minor children, you have to file a parenting plan. Section 452.310.7.
3. File a Family Court information sheet, in most counties, known as a "Form 17".
4. Cause the court to issue a summons, a paper telling the other party that the case has been started and giving them basic information about the case and a copy of what you filed. Section 452.311.
5. Pay a filing fee, which is generally set by the local rules of the circuit court in which your case is filed.

Remember:

• Hire a competent attorney who practices most of the time in the county in which you live.
• If you decide NOT to hire an attorney, understand that you will have to follow the rules of the court where your case is filed AND all the rules in the statutes (laws) of the state of Missouri.

Do I have to have "cause" or "grounds" for getting a dissolution?
Not in Missouri. This is a "no fault" state. A dissolution can be granted if "the marriage is irretrievably broken" and "there is no reasonable likelihood that the marriage can be preserved". As a practical matter, if one party testifies to these two things, the dissolution will be granted. The simple testimony on those two points of one party is enough to support a finding and dissolve the marriage.

Do I have to be a resident of the state of Missouri to file for a dissolution of my marriage in this state?
You or your spouse must have been a resident of the state of Missouri for ninety days before a petition for the dissolution of your marriage can be filed. This is the "residency requirement".

Where do I file my case?
In the county where you reside, or the county where your spouse resides. Section 452.300.

What does the other person do when someone files a "petition for dissolution"?
The other party files an "answer". It must "admit" or "deny" the things stated in the petition, and the "answer" must also be signed by the other party and his/her signature must be notarized.

What if the other person doesn't file an answer?
If the other person doesn't file an answer, they are technically in default. The Family Court (or circuit court, if your county doesn't have a separate family court) COULD enter a default judgment.

BUT:

• You cannot get a "money judgment" against a person in default. That means you can't get an order for them to pay money to you.
• The courts will very easily set aside a default dissolution, on a showing that the other side was "not at fault" in failing to answer; as a practical matter, if the other side defaults and then comes back later and asks to have the default judgment set aside, the court is very likely to do it. There's an old saying, "Equity abhors a forfeiture", and divorce court is one of the original "equitable" courts.

Okay, I'm ready to file my petition for dissolution, but I can't find my spouse. What do I do?
You can do one of several things:

• You can serve by publication. This is an acceptable way to get service but you can't do much except actually get divorced.
• You can hire a private investigator, especially if the person is local. You can expect to pay at least $150 to a PI to find your spouse.
• You can run a records check over the net, for a fairly minimal amount; or you can have your lawyer or PI do so.

I got my spouse served, he filed an answer; what happens now?
What happens now depends a lot on which county has your case, whether there are children, what kind of debts and property you have, and so forth.

In general, though, expect the following:

1. Temporary orders to preserve the status quo while the case is pending. Section 452.315. Some courts issue a blanket, form order; some wait for you to ask; but they all have the power to do it with an "ex parte" (one side by him/herself) motion.
2. Paperwork "discovery" is exchanged, usually on pre-printed forms that require you to report all of your income, property and debts, both marital and nonmarital.
3. In many jurisdictions, you will have to attend an educational class if you have minor children.
4. You will also have to attend mediation if you have minor children. Section 452.372.
5. When the other side has answered (or 30 days from the date of service has passed) you can get a "court date". BUT:

• In bigger counties, you get a "date to set a date". That is, the first trial date you get is just a "docket", and when the lawyers appear, the court gets a 'status report' and if the case is ready to try, the judge gives them a trial date.
• As with everything, local rules dictate exactly how you get a court date. Many local rules are online, and there is a master book published by West publishing that has all the local rules in it. A good website for learning more about Missouri court rules is www.mobar.org.

1. After the two sides exchange "discovery" -- that is, the paperwork stating your debts, assets, income, and property -- then the lawyers should talk to each other and decide whether or not the case can be settled. If it can, one side will draft a proposed "separation agreement and property settlement", and send it to the other side to review -- and the war of the lawyers will commence!

Speaking of property settlements, what is the difference between "marital" property and "non-marital" property:

1. Marital property - Any property acquired during the marriage EXCEPT if it fits into one of the categories of non-marital property.
2. Non-marital property is:
• Property owned by one spouse BEFORE the marriage (unless it is proven that the property was 'dedicated' to the marriage)
• Property that one spouse receives by:
• gift
• inheritance
• exchanging non-marital property for new property; or selling non-marital property and buying something else with the money

BUT: Watch out. As noted, "non-marital" property can become marital property by:

• Using it as marital property -- especially a residence
• Using marital funds to improve the property
• Pledging the non-marital property for a marital debt
• There are other variations, but suffice it to say that you should keep your separate property completely separate -- or, better, have a "ante-nuptial" agreement.

Do we split our property 50/50?
That is not the way our statutes read in Missouri. Here, the property is split on an "equitable" (fair) basis. The court takes certain factors into consideration, which are found at Section 452.330. They are:

1. Economic circumstances
2. Contribution of each spouse to acquisition of property
3. Value of each person's nonmarital property
4. Conduct of the parties (what we used to call "grounds")
5. Where the children are going to go (often, the person who gets the kids also gets the house)

As a practical matter, most judges in URBAN counties start out assuming the property is going to be split 50/50. Many judges in RURAL counties still think of men and women in traditional roles, rightly or wrongly, and will often be tempted to "provide" for a wife, even if she has a good job.

There's property, like my pension, that I don't want to lose. Can I protect it?
Any property that you want to keep can be valued and factored into the property distribution -- the value of it will be offset against your "equitable" share of the property. Also, it is possible that only part of your pension is "marital" property. In the case of a pension, the court will often use an equation to figure out what part of it is marital property, and then let you set-off the value against a presumed share of the marital property. Pensions can be protected.

How am I going to pay my bills while the case is pending -- and after?
A very long time ago, husbands paid "alimony" and wives got it. These days, what we used to call "alimony" is now called "maintenance" in Missouri, and it is very hard to get -- at least, again, in most of the larger counties.

Now, there is a threshold test that you have to meet to get maintenance. That test is:

1. Do you lack sufficient property, including marital property given to you in the dissolution, to provide for your needs?
2. Are you unable to support yourself through a job, or, are you the custodian of a child whose condition or circumstances make it inappropriate for you to work?

If you pass that test -- if the court answers "yes" to both questions, then the court considers ten factors to decide on the amount of maintenance. They are:

• Financial resources of person asking for maintenance
• Time needed to "re-train" person seeking maintenance
• Relative earning power of each person
• Standard of living during marriage
• Debts and assets each person got
• How long the marriage was
• Age, physical and emotional condition of each person
• What the person who would have to pay needs to survive
• How the parties acted during the marriage (the old 'fault')
• Anything else relevant (E.g., Did one party put the other through law school and is now getting dumped for a younger spouse?)

Section 452.335.

It is not impossible to get a year or two of maintenance, at several hundred dollars a month, particularly if you never worked or stopped working to raise the children, or have no skills and need to get a degree or certification to get a job that will keep you in Wheaties.

In theory, the "kids" are one major area in which the law of the state of Missouri has been overhauled effective 28 August 1998.

What does this mean? It means that the General Assembly has acknowledged that "frequent, continuing, and meaningful conduct with both parents after the parties have separated or dissolved their marriage is in the best interests of the child". Section 452.375.4.

The court hence FAVORS a finding of JOINT LEGAL/JOINT PHYSICAL CUSTODY -- where the parties share major decision-making and each has significant, but not necessarily equal, time with the child(ren).

There is a long, complex, and important scheme for determining child custody in Missouri now, and it is found and described in Section 452.330. You would be wise to have a Missouri attorney, skilled and competent in custody matters, who practices in your county, and can assist you in developing and advocating a parenting plan that the judge assigned to your case will accept.

What about child support?
This has also been overhauled, and the new statute is Section 452.340. Basically, child support is a mathematical equation BUT there are many variables in the equation now, and it is not necessarily straightforward.

The parties use "Form 14" and the Presumed Child support chart / worksheet to propose the child support. The Missouri Rule governing the calculation of child support is Rule 88.01, and factors of the equation include:

• The gross (before taxes) monthly income of each party
• Any support the parties pay to someone else unrelated to this action, by court order
• The cost of health insurance, work-related daycare, and extraordinary expenses
• The number of overnight visits a non-residential custodian has with the child
• The federal tax credit for the residential custodian

There is good software available for calculating child support under the new rules, and you are wise to have an attorney who uses software, as it is a much more rigid but also much more all-encompassing formulae than it used to be.

Can you go "off-chart", and ask the court to enter a child support order that is something other than the result of your Form 14 presumed child support?
Yes, but with the new guidelines, it is much more rare as the new guidelines are presumed to take many variations into consideration.

Am I forgetting to ask any questions?
I could go on and on about child custody, but with the new parenting plan scheme employed by the courts, things are so different now that each situation is going to be differently treated. But know this:

• Joint legal/physical custody does not necessarily mean "50/50" time with the kids, nor that nobody pays child support
• Joint custody presumes that the parents can work together. If you bicker straight through the proceedings, the court is not going to believe you when you stand in front of the judge and say, "Oh yes, Judge, we can have joint custody."
• The longer you fight for the exact wording of the parenting plan that you advocate, the more expensive your fight will be, and in the end you probably won't get exactly what you want anyway.
• The longer you fight for what you think should be ordered by the court, the more hostile your soon-to-be-ex-spouse will likely be and the more uncomfortable the children will be.
• In the final analysis, the keystone of custody in Missouri, even under the new scheme, is "the best interests of the children". It is NOT, "protecting parental rights".

Because things are done differently now, it is best to discuss all of the particulars of your custody case with a family lawyer or a parenting issues mediator. Your court maintains a list of approved mediators, and your local bar can help you locate potential lawyers. Or, you can e-mail me, and I can assist you in finding a lawyer in your county.

One of the most important things to remember about dissolution of marriage is that you once loved this person, and, if you have children, you certainly love the children. But do not let the fact that you once loved them excuse abuse, neglect, or interference with your role as an active co-parent outside the context of the marital relationship. Be clear and pro-active about your rights. Be clear and pro-active about the rights of the child. Don't be petty, but don't be a doormat. And don't use your children as pawns.