To help you be better prepared and informed, here are some frequently asked questions regarding divorce and custody cases in Missouri.
Missouri uses the term “dissolution of marriage” instead of “divorce.”
Missouri is a “no fault” divorce state, which means that irreconcilable differences is the only standard required to get a divorce.
You or your spouse must have been a resident of Missouri for the 90 days immediately preceding filing the petition for a dissolution.
No dissolution can be granted until at least 30 days after a Petition for Dissolution has been filed. The Court will require you to wait 30 days from the date the other spouse officially receives a copy of the petition through proper notification by service.
After the petition for dissolution is filed, the spouse must receive proper notification through service. A process server such as an employee of the local Sheriff’s office or a special process server must personally deliver the petition for dissolution to the other spouse. The other spouse, called the respondent, can sign a document called an Entry of Appearance and Waiver instead of the use of process server. If your spouse cannot be found, as a last resort the petition for dissolution can be served by “publication”, which will require running a notice in a local newspaper. This is alternative is more expensive and there are some restrictions to what a spouse can get after service by “publication”.
The other spouse prepares and files a legal document called an “answer.” It must admit or deny the facts stated in the petition. The answer must be filed no later than 30 days after the petition is served.
If the other spouse doesn’t file an answer, he or she is technically in default. This means that the court could enter a default judgment granting the dissolution. However, there is still a chance the other spouse can get the default judgment set aside if they file a motion within 30 days after the date of the default judgment entry especially if children are involved.
A lawyer cannot ethically represent competing interests. A dissolution necessarily involves some matters which benefit one spouse and are a detriment the other. Therefore, an attorney can only represent one person in a dissolution.
An “uncontested” dissolution is when both spouses agree to all aspects of custody, visitation, support, division of property, debt payment and attorney fees. If one spouse disputes any of these matters and an agreement is not eventually reached, a trial will be necessary.
In Missouri, maintenance is the term for alimony. There is a threshold test that a spouse must show to get maintenance. The spouse asking for maintenance must lack sufficient property and income to provide for their reasonable needs. The second part of the test is that the other spouse must possess sufficient property and income to reasonably meet their needs while paying maintenance. Additional factors for maintenance include the length of marriage and spousal behavior during the marriage. Generally, an award of maintenance is either for a specified term or modifiable.
If you hold joint credit cards, or the account is held in your name and your spouse is entitled to use the account, then you are still liable for all charges made. If you believe that this will be a problem and that your spouse may run up a large balance on such an account, then you may need to shut down that joint credit card. It is generally preferable for each spouse to use credit cards in their own name during the pendency of the divorce.
Missouri is a marital property state not a community property (50/50) state. Missouri family law courts divide marital property by equitable distribution, which means they will distribute marital property between spouses in whatever way they believe is equitable (fair), but not necessarily equally. Non-marital property such as inheritance is usually not divided unless it had been co-mingled with joint accounts during the marriage.
The economic circumstances of each spouse at the time the division of property becomes effective, including the desirability of awarding the family home or the right to live in it for reasonable periods to the spouse having custody of the children, the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker, the value of the non-marital property of each spouse, and the conduct of the parties during the marriage.
Local Court Rules require that in all cases where custody or visitation is to be dealt with that both parents attend a parenting class. The title of the class varies from county to county but the purpose of the program is to help make parents aware of the trauma that children go through as a result of their divorce and to provide parents guidelines for easing the hurt to their children. There is a small cost involved in attending a parenting class. It is in addition to the court costs and your attorney’s fees. You should sign up for the appropriate class after filing your first pleading. Call our office for information on signing up for parenting class.
Joint Legal Custody means both parents share all the important decision making rights and responsibilities and authority regarding the child’s health, education and welfare unless those decisions are allocated differently by order of the judge. Joint Legal Custody requires the parents to confer with each other in exercising the decision-making. Joint Physical Custody means both parents have significant periods of time during which a child resides with or in under his or her care and supervision. Joint physical custody does not require equal sharing of time. Sole Custody means one parent makes all the decisions regarding the child and the child lives primarily with that parent. These forms of custody can be in different combinations. For example, a parent could have sole legal custody and joint physical custody or sole physical and joint legal custody. The Courts generally prefer Joint Legal Custody and Joint Physical Custody parenting plans. With Joint Legal Custody plans one parent will be designated as having the mailing and educational address of the minor child.
In order to encourage parents to think about the issues involving their children as early in the divorce process as possible, the law now requires that each party file a “Parenting Plan.” A typical Parenting Plan includes provisions regarding custody, visitation, holidays and summer vacations, pick-up and delivery, moving away, child support and payment of other expenses, and health insurance.
Child support is money paid by one parent to the other for support of the minor children. Even if a parent has joint custody, one parent will likely pay some child support. Child support is calculated through the use of a mathematical equation that takes into account the parents’ income, how much time each parent spends with the child, the child’s needs, and other factors. The form with this calculation is called a Form 14.
A spouse has the option to have her former or maiden name restored to her as part of the divorce. Please communicate this with your attorney because the name change must be included in the final judgment.
We will do everything possible to have your case heard as soon as possible. Appropriate dress should always be worn when you are appearing in court. We will advise you well in advance of court dates and locations. You must not be late when going to court!
Only a judge may grant a divorce. If you and your spouse do not agree on all of the issues in your case, you will have to go to court to have the judge decide those matters. Most judges prefer that each party attend case management and pre-trial conferences set on their case as judges are of the opinion that the parties should be involved in their case and show interest. There will be opportunities for a partial or complete resolution to settle all of the issues in your case without formal court proceedings. Depending on the complexity of the issues that cannot be resolved and the amount of evidence that is presented to the court, a final trial can last a couple hours to up to a couple days.
A divorce must be pending for a minimum of 30 days after it is filed before a divorce can be granted. How long a divorce case will last depends on the specific facts and circumstances of your case. If there are significant issues upon which you and your spouse cannot agree to resolve, those issues will have to be resolved by a judge. It is necessary for the attorneys to gather and exchange all of the information concerning what is in your children’s best interests, as well as information regarding your residence, mortgage, vehicles, loans, bank accounts, credit cards, and all of your other assets and debts. The judge will schedule pretrial settlement conferences to determine the status of the case. If there is a good reason to delay the case, the judge has the discretion to do so. Otherwise, the judge will likely set a trial date. If there are any unresolved issues on the trial date, the parties will be allowed to present their evidence and make their arguments, and the judge will decide the remaining issues.
A dissolution is final on the date the Judgment of Dissolution is signed by the Judge.
Call Day or Night for an Attorney if you Have Questions
If you have any questions about getting a divorce in Missouri or about a custody matter contact us for a free consultation; contact attorney Chris Benjamin at KC Road Lawyers by calling 816-738-5725 or navigating to our contact page for a consultation at the firm’s Lee’s Summit or Butler Missouri offices.