When we think of hot-button issues in a divorce, the usual suspects are alimony and child custody. But dividing a couple's property can be right up there, especially when it comes to things like determining who gets the family home or even the family pet. If you're facing the end of your marriage, it's important for you to understand the basics of how Missouri law deals with the division of property in divorce.
No, Missouri isn't a community property state. As in most states across the U.S., division of property in Missouri is controlled by the principle of "equitable distribution."
With equitable distribution, judges will divide all of a couple's marital property (and allocate their marital debts) based on the judge's decision as to what is fair to both spouses under the particular facts of each case. It's important to note that "equitable" doesn't necessarily mean equal (a 50-50 split).
Before judges can decide how to divide a couple's property in a Missouri divorce, they must first determine what property is subject to distribution. That boils down to figuring out which assets are "marital" property and which are "separate" property.
Missouri law presumes that all property either spouse acquires or earns during their marriage—up to the date of their final decree of divorce (known as "dissolution of marriage" in Missouri) or legal separation—is marital property that should be divided in the divorce. (Mo. Rev. Stat. § 452.330(3) (2023).)
This holds true whether title to the property is in one spouse's name alone or in the name of both spouses in some form of legal co-ownership (such as a joint tenancy). For example, if a spouse bought a car during the marriage and only that spouse's name is on the vehicle's title, it's still considered to be marital property subject to distribution in divorce.
Either spouse may overcome the marital-property presumption by showing that money or other assets come under one of the exceptions discussed below.
In addition to property that a spouse acquired before the marriage, Missouri law considers the following to be separate property:
Separate property—such as a house or business that one spouse owned before the marriage—often increases in value during the marriage. You may wonder whether the amount of that increase is marital property. Generally, the answer is no. But if marital assets (including a spouse's labor) contributed to the increase in value, the portion of the increase that resulted from that contribution will be considered marital property subject to distribution in the divorce. (Mo. Rev. Stat. § 452.330(2) (2023).)
For example, let's say a couple lived in a house that one spouse owned before the marriage. Because of normal real estate appreciation, the house was worth more when they divorced than when they married. That increase would still be the separate property of the owner-spouse. But say the couple used money from their joint bank account to put an addition on the house, which increased the house's value by $100,000. In that case, $100,000 of the overall value would be considered marital property. In other circumstances—such as when the couple used marital funds for mortgage payments and regular repairs—it can be complicated to figure out of how much a property's increased value is marital.
Separate property can be converted ("transmuted") to marital property in certain circumstances. In most states this can happen:
Missouri is something of an outlier, because the state doesn't penalize a spouse who commingles a separate asset with a marital asset. Under Missouri law, the separate property retains its nonmarital status unless the owner spouse specifically intended to convert it to a marital asset. (Mo. Rev. Stat. § 452.330(4) (2023); Cuda v. Cuda, 906 S.W.2d 757 (Mo. Ct. App. 1995).)
When you have any financial issues at stake (including property division), you and your spouse must exchange complete information about your income, expenses, assets, and debts after you file for divorce in Missouri. That's why it pays to prepare your financial information before the divorce process starts.
In many cases, determining an asset's value is fairly straightforward, such as obtaining the balances on bank accounts. With other types of property—such as your house, pension, or a family business—you may need the help of financial experts like appraisers, forensic accountants, or actuaries.
If the two of you disagree on the value of any particular asset, the judge may have to decide for you, based on the evidence you both provide.
You need to be mindful of the correct date for establishing the value of an asset. This date varies from state-to-state. Some states use the date the spouses separated, while others might use the date the divorce papers were filed. But the Missouri Supreme Court held that the proper date for valuing marital property in a divorce is the date of trial—in other words, at the very end of the divorce process. (Taylor v. Taylor, 736 S.W.2d 388 (Mo. Sup. Ct. 1987).)
Of course, if you don't need a trial because you've settled your case (as discussed below), you and your spouse will have already agreed on how much your property is worth.
When you're getting divorce, you and your spouse always have the option of agreeing on how you'll split up your property and allocate your debts, rather than having a judge decide for you. In fact, the courts strongly encourage divorcing couples to settle all their marital issues before a trial is necessary, and they provide ample opportunity to do that during the divorce process. A judge will have to approve the settlement, but judges will almost always give their approval as long as they believe the agreement is fair to both spouses.
Also, if you and your spouse reach a complete marital settlement agreement before you file your divorce papers—covering all the legal issues involved in ending your marriage—you'll be able to file for an uncontested divorce in Missouri. Uncontested divorces are much cheaper, quicker, and easier than traditional contested divorces. Many couples are able to navigate the uncontested divorce process without hiring a lawyer, either entirely DIY or by using an inexpensive online divorce service to streamline the process.
If you can' reach an agreement with your spouse, a judge will have to decide how to divide your property. Like many states, Missouri's divorce law instructs a judge to look at all relevant factors that would impact a fair division of property in a particular case, including:
(Mo. Rev. Stat. § 452.330(1) (2023).)
Although the law allows consideration of marital misconduct (such as adultery), Missouri courts have held that not all misconduct will justify a disproportionate division of a couple's property. Moreover, the misconduct should only be a factor when it placed an extra burden on the other spouse. (Landewee v. Landewee, 515 S.W.3d 691 (Mo. Sup. Ct. 2017).)
This means that judges will generally be concerned with the economic consequences of a spouse's misbehavior rather than the nature of the misconduct itself. For example, if a spouse the couple's money on an affair with lavish gifts and expensive vacations, a judge might be inclined give the innocent spouse a greater share of the marital property to compensate for the wasted assets.
Even though Missouri judges will consider whether the custodial parent should stay in the marital home, the law doesn't say that either spouse must get to keep the family home after divorce.
If you and your spouse own your home but can't agree on what to do with it, the judge will make a decision based on the specific circumstances in your case. If one spouse receives the property in the divorce, the judge will typically award different assets—such as retirement accounts—to the other spouse to arrive at a fair distribution of all the couple's property.
For many couples, however, a house is their only truly valuable asse. So if one spouse gets the house, there won't be enough other assets to arrive at a fair overall property distribution. In this type of situation, the judges will often order the couple to sell the house and divide the proceeds. If you don't want a forced sale, you'd be wise to agree with your spouse on one of the other options for dealing with the marital home.
Retirement plans are also part of the equitable property division in divorce. It can be complicated to set a value on the marital portion of these plans, particularly when a spouse began participating in a plan prior to the marriage. This is why you'll probably need the services of an actuary or an attorney trained in calculating the portion of the plan that's subject to distribution in the divorce.
Also, when you're dividing employment-related retirement plans, such as a 401(k) or a pension, you'll need an expert to prepare a special order for the plan administrator known as a qualified domestic relations order (QDRO).
Even though pets can feel like members of the family, they're considered property under the law. As such, they're subject to distribution just like a couch or a car. Divorce laws in a few states specifically allow judges to consider the animal's well-being or to award joint custody of a pet. That's not (yet) true in Missouri. Still, when deciding who gets the pet in the divorce, empathetic judges will undoubtedly be mindful of the impact of their decision on members of the family.
If you're having trouble agreeing with your spouse about how to divide your property, you can try mediation. The cost of divorce mediation varies, but you and your spouse can split the mediator's fee. And a successful mediation will be considerably less expensive than going to trial (with attorneys' fees for both of you).
But if you still aren't able to reach a settlement agreement, even with a mediator's help, you should at least speak with a lawyer if at all possible. An experienced family attorney can evaluate your case and lay out your options going forward. Having a lawyer on your side is especially critical if you're experiencing domestic violence in your marriage, you suspect that your spouse is hiding assets, or your spouse already has an attorney.
You should know that the question of whether you need a divorce lawyer isn't always an all-or-nothing choice. Sometimes, you can hire an attorney on an as-needed or consulting basis to handle certain tasks in your divorce, such as drafting or reviewing your settlement agreement to make sure you haven't missed anything important or inadvertently given up important rights.