The following questions address general matters related to family law in Missouri. This is provided for informational purposes and not intended as legal advice. Readers should not act upon the information contained herein without professional counsel. Be sure to read the disclaimer below.

1. What are the grounds for divorce in Missouri?

Missouri has limited "no fault" divorce, making it unnecessary to prove cruelty, adultery, etc., to obtain a dissolution. The usual ground is irreconcilable differences with your spouse. In a few cases it may be appropriate to allege other grounds.

2. What is a dissolution?

Missouri uses the term dissolution of marriage instead of divorce.

3. How long do I have to live in Missouri to get a dissolution?

You or your spouse must have been a resident of Missouri for the 90 days immediately preceding filing the petition for a dissolution.

4. Is there a waiting period to get the dissolution?

No dissolution can be granted until at least 30 days after a Petition for Dissolution has been filed but generally you must wait 30 days from the date the other spouse officially receives a copy of the petition.

5. How does my spouse learn about the dissolution?

After the petition is filed, the spouse must receive proper notification. There are several ways to accomplish this. A process server can deliver a copy of the petition to the spouse. This is called "Service" on the Spouse. Another way is to have the spouse sign a document called an Entry of Appearance and Waiver. An Entry of Appearance acknowledges receipt of the Petition and eliminates the requirement of having someone officially hand the papers to the spouse.

6. Can we both use one lawyer?

A lawyer cannot ethically represent competing interests. A dissolution necessarily involves some matters which benefit one spouse and detriment the other. Therefore, an attorney can only represent one person in a dissolution.

7. What does "uncontested" dissolution mean?

A dissolution is considered "contested" unless 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.

8. How do I find out if my spouse has hidden money?

The law provides numerous tools to locate assets, however, finding hidden money can be a daunting task. In Jackson County, Missouri both spouses must answer certain court-mandated questions under oath, complete financial questionnaires and provide documents such as bank records. Depositions (oral questions under oath in front of a court reporter) can also be used. The Court requires submission of complete financial information regarding the assets and debts of the marriage so that the judge can make an intelligent decision regarding the division of these assets and debts, if the spouses cannot agree on how to divide them. Detailed information is also necessary with a written agreement so that the property can be specifically and accurately described in the agreement.

9. When is the dissolution final?

A dissolution is final on the date the Judgment of Dissolution is signed by the Judge.

10. What is Maintenance?

Maintenance is money paid by a spouse to a former spouse to assist in the support of the ex-spouse. This was formerly called "alimony". Maintenance can be "contractual"--that is in an amount and for a length of time agreed to by you and your spouse. The maintenance can also be ordered by the Judge without a spouse's agreement. Such maintenance terminates on the death of either spouse, and the marriage of the receiving spouse. It can be modifiable or nonmodifiable and can be for a set number of months or years. There are no mandatory guidelines or charts to determine how much maintenance is appropriate. Generally, maintenance is taxable to the spouse who receives it and deductible by the paying spouse.

11. How do we divide the property?

There is no fixed way to determine how to divide the property. Missouri has two major categories of property in a dissolution context: marital and nonmarital. These types of property are established by statute and interpreted and analyzed by various appellate court decisions.

Nonmarital property is all property:

1. Acquired by gift, bequest, devise or descent;
2. Acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
3. Acquired by a spouse after a decree of legal separation;
4. Excluded by valid agreement of the parties; and
5. The increase in the value of property acquired prior to the marriage or pursuant to 1 through 4 above unless marital assets including labor have contributed to such increases and then only to the extent of such contributions. (Section 452.330.2 R.S.Mo. 1988)

Marital property is all property acquired during the marriage except by the means described as nonmarital above:

In Missouri the increase in value of nonmarital property is considered nonmarital however income such as interest or dividends earned on nonmarital property is marital. The court cannot award nonmarital property to the other spouse.

The court divides the marital property in a manner that is just and equitable based on the following:

1. 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;
2. The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
3. The value of the nonmarital property of each spouse;
4. The conduct of the parties during the marriage;
5. Custodial arrangements for minor children;
6. Any other relevant factor.

If the spouses agree on a division and if the agreement is reasonable, the court generally approves it. If the spouses can't agree, the Court will divide the property. Before discussing division with a spouse, it is important to know what all the assets are and the value of each. For example, many persons misunderstand the value of their pension or how much money they would receive for their house if it sold. Debts must also be considered in arriving at a fair division of property. Often tax considerations affect the fairness of a division as well. For example, the capital gains on assets such as stock should be calculated when offsetting against an asset such as a bank account which can be liquidated with no capital gains.

12. What happens to joint debts?

Recent changes in Missouri law require the court to assess responsibility for the debts between the spouses. Even though your spouse agrees to pay a joint debt or the judge orders the spouse to pay the joint debt, that liability remains a joint obligation to the creditor. Neither the agreement nor the order binds the creditor who can sue one spouse if the other doesn't pay. An important consideration regarding joint debts is that if a spouse agrees to pay the debt, or the court orders it paid, the other spouse will still be responsible for the debt if it is not paid. If this happens, the former spouse could be sued to collect the money the other spouse was to pay. A creditor in loaning the money to both spouses relies on the joint income and has the right to collect from either spouse. Occasionally a bank will allow a spouse to refinance a loan and remove the other spouse's name, but this is rare unless the spouse has sufficient separate financial resources.

13. Can my spouse discharge child support in bankruptcy?

Generally, maintenance and child support obligations are not dischargeable in bankruptcy. Under the current bankruptcy law sometimes joint debts which one spouse agrees to pay are dischargeable.

14. What if my spouse injured me?

In certain circumstances a spouse may have a cause of action in tort against the other spouse for actions during the marriage. These include claims such as battery and assault. These matters are separate actions from the dissolution. The court does consider misconduct in dividing property and awarding maintenance.

15. What if my spouse and I agree how we want to divide our assets?

Most dissolutions are settled, not tried by a judge. This means the parties eventually reach an agreement which the attorney drafts into what is called a Marital Settlement and Separation Agreement. The judge must find that the agreement is "not unconscionable" which means not grossly unfair.

16. How do we handle the children?

In most dissolutions, the parties reach an agreement on the important issues regarding their children. Missouri law requires the judge to order a Parenting Plan with specific provisions regarding the children such as custody, time sharing arrangements, health insurance, medical expenses, life insurance and possibly income tax exemptions and educational expenses. If the parties don't agree on the issues relating to their children, a judge determines them often after required mediation on the custody and time sharing issues.

17. What is meant by joint custody?

By statute there are several forms of custody in Missouri:

1. Sole Custody means one parent makes all the decisions regarding the child and the child lives primarily with that parent and the time the child spends with the other parent is referred to as temporary custody or visitation.
   
   
2. 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. A Parenting Plan defining joint legal custody must be included in the court order delineating how decisions will be shared. It can include a dispute resolution method.
   
   
3. Joint Physical Custody means each of the parents have significant but not necessarily equal periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint Physical Custody must be shared in such a way as to assure the child of frequent and meaningful contact with both parents. Joint physical custody does not require equal sharing of time although some parents do decide to split the children's time equally.

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. Generally, if the parents cannot agree on significant issues regarding the children's upbringing the court will not order joint legal custody.

18. How do we split the time with the children?

Arrangements regarding how you and your spouse divide the time with your children usually must be spelled out in detail in the court order. Aspects of time sharing must be specified whether one parent is the sole custodian or a joint physical custody arrangement is used. The advantages and disadvantages of varous time sharing plans depend on the ages of your children, your relationship with your spouse, the distance between the homes and many other factors. Holidays, summers, out-of-town trips, school year issues, transportation, bedtimes, etc. must all be considered in establishing a plan that will significantly affect your future lifestyle.

19. Who pays child support?

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.

20. How much child support will I have to pay?

The amount of child support received or paid is another important concern. Child support can be difficult as there is usually not enough money available to allow both spouses to maintain the same standard of living had during the marriage. Guidelines mandated by the Missouri Supreme Court set the amount of child support. These guidelines have formulas which consider the gross incomes of both parents, child care expenses, health insurance costs, educational expenses and extracurricular costs and payments for children from other marriages. Children with special medical needs or expenses may receive additional child support. The current guidelines contain a graduated credit for time with the other parent. Missouri requires support to continue until a child is emancipated, or until a child reaches age 22 if the child remains in school and complies with certain requirements.

21. Who gets the tax exemptions?

Whether you can claim the tax exemptions for the children can be a significant economic factor. If the divorce judgment doesn't mention the tax exemptions for the children, the parent who has physical custody of the children more of the year can claim the exemption regardless of how much child support the other parent pays. The child support guidelines assume that the parent receiving child support is entitled to the exemptions.

The parents can specify in the agreement which parent can claim one or all the exemptions for the children. Such an agreement should make claiming the exemption contingent on the other parent's being current on all child support payments for that year.

22. Does child support ever change?

The amount of child support determined at the time of your dissolution can be increased or decreased in the future if there is a substantial and continuing change of circumstances. Keeping accurate records of what you spend on your children can be useful in future support modifications.

23. What if my spouse doesn't pay the Child Support?

Sometimes spouses are not regular and timely in paying the child support. This can be a severe problem for the parent receiving the support. The paying spouse should make it a rule to be timely in payments. Once the dissolution is final, in most instances, the child support is withheld by the payor parent's employer and sent directly to the other spouse or to the child support enforcement agency. A self-employed or unemployed parent can also make payments through the Court. In such cases a money order or cashier's check must be sent to the court for each payment. The court then takes several days to process the payment and forwards it to the other parent. The responsibility for collecting and disbursing child support is in the process of being transferred from the local court to a state agency.

Delinquent child support in Missouri now carries an eighteen per cent annual interest penalty! This is an incentive to stay current. The driver's license and the professional license of a parent in arrears on child support may also be suspended under certain circumstances.

24. Can I move the children's residence?

You cannot move the children's residence once the dissolution is granted without sending your former spouse a written notice of the planned move 60 days before the move. If your spouse does not object to the move within 30 days of the notice, you can move. If your former spouse objects, you will have to have a court hearing to determine if you can move.

25. Who provides the children's health insurance?

One parent must carry health insurance on the children. The Court will issue an order requiring this and in some cases the Court will require a Qualified Medical Child Support Order (QMCSO) to be served on the employer of the parent providing the health insurance.

26. What about my health insurance?

It is possible for a spouse to carry health, dental and vision insurance for up to three years after the dissolution through the other spouse's employer if the spouse is a dependent covered under that insurance. The cost to maintain the insurance can be determined from the company benefits office. The right to this coverage is based on a federal statute, the Consolidated Omnibus Budget Reconciliation Act, referred to as COBRA. Some employers are not covered by the federal provisions, but they may have to offer health insurance benefits for 18 months based on Missouri law.

A spouse is not eligible for the Cobra extended coverage if the spouse has group insurance through employment which can be enrolled in without a limitation on pre-existing conditions.

The spouse is required to pay for the coverage. The company can charge for its cost for this coverage plus two per cent. The health coverage cost is often more expensive than that for active employees since usually the employer pays part of the premium.

Exploring the cost and coverage of health benefits available through private plans is useful to compare with the COBRA costs.