If you are getting divorced in Missouri, do you know what property you get to keep and what you have to split with your spouse? Who will be responsible for the debts you and your spouse have incurred during your marriage? How will you decide how to divide property?
When faced with the task of dividing property at the end of your marriage, one of the first things you should know is that Missouri is an equitable distribution state. Equitable division means that a court will split the property between spouses in an equitable (fair) way. The division does not have to be equal to be fair.
The court’s involvement assumes, however, that you and your spouse can’t or won’t work together to settle your property disputes. You have the option to do the division yourselves and give the court your decision in a written document called a separation agreement (or settlement agreement if one of you has already filed for divorce). Generally, the court will accept your preferences regardless of the fairness or equality of the split, unless it's very obviously unfair to one spouse. If there are certain assets you can’t agree on, then the court will divide them for you based on a set of factors designed to give an equitable result.
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to each of the spouses separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage. Non-marital property is property you owned before marriage. It could also include certain types of property you receive during marriage, including gifts, inheritances, or, among other things, an increase in the value of property that's already considered separate because you acquired it prior to marriage or by gift.
For example, if during marriage your parents give you one of their rental properties as a gift and the value of the property improves because the neighborhood undergoes revitalization, then the rental property and its increased value are yours to keep. If the value of the property increased because you remodeled it during marriage, however, then that increase is marital property. This is because you used a marital asset – your labor, and probably your spouse's labor as well – to improve the value of the property.
In Missouri, the court must presume that all property acquired during marriage is marital property, regardless of what title says. To keep property from being divided, you will have to show the court that it is non-marital. Usually this involves proving when and how you received it, or as in the rental property example, that the gift was intended for you alone.
Once you have excluded your non-marital property, the court will set it aside and divide only the marital property, which includes debts.
Debt and other liabilities must be divided at divorce, along with real property like the family home, personal property like jewelry, and intangible property like income, dividends, benefits, and pensions. Debts are treated the same as any other property. Before dividing a debt, the court will have to characterize it as either marital or non-marital based on when it was acquired, who acquired it, and how it was used. Then the court assigns responsibility for it equitably.
The court relies on a set of factors to assign marital debt and distribute marital assets. These factors include the overall economic circumstances of each spouse at the time of division, custodial arrangements for minor children, and whether the spouse with custody of the children should receive the family home or at least the right to live in it. The court also looks at how much non-marital property is involved and the ways each spouse contributed to the marital property. In the acquisition of marital property, homemaking counts the same as a monetary contribution.
Additionally, the court will evaluate each spouse’s conduct (or misconduct) during the marriage. If you had an affair or otherwise treated your spouse badly, it can count against you in the property division, especially where your spouse can show that your bad behavior caused an added, specific burden. Although the court can give your spouse more of the marital assets and less debt as compensation for your misconduct, it can’t punish you outright. Instead, the court must balance the misconduct in light of all the other factors.
Spousal maintenance (alimony) is a payment from one spouse to the other to help sustain the recipient spouse after divorce. In Missouri, the court can award maintenance only where you lack sufficient property – including your share of the marital property – to cover your reasonable needs, plus meet one of two other conditions: You must be unable to support yourself through employment or have custody of a child whose condition impedes employment outside of the home.
The court decides the amount and duration of maintenance payments after reviewing your financial resources and debts, the time you might need to complete additional training or education, and the comparative earnings of each spouse. The court will also look at the marital standard of living, how long the marriage lasted, and the ages and health of the spouses. Here, too, the court considers the spouse’s conduct during marriage, among other factors. Ultimately, any award for maintenance must be just based on the recipient spouse’s needs and the obligated spouse’s ability to pay.
You can read the law on division of property and alimony in the Missouri Revised Statutes Sections 452.330 and 452.335 respectively. If you would like to read a case where a court took it too far in awarding an abused wife 93% of the marital assets and only 27% of the debt, see Hight v. Hight 314 SW 3d 874 (2010).