Divorce
FAQ
Q.
What is Dissolution of Marriage?
A. What is
commonly known as "Divorce" is properly termed a Dissolution
of Marriage under Missouri Laws.
Back
to Top
Q.
What are the grounds for Dissolution of Marriage (divorce) in Missouri?
A. Missouri
provides for limited "no fault" dissolution of marriage,
allowing the petitioner to allege merely "irreconcilable
differences" as grounds for dissolution of the marriage.
The petitioner is typically not required to plead "fault"
unless the other party denies the allegation of irreconcilable
differences.
Back
to Top
Q.
What is a Legal Separation?
A. A proceeding
for Legal Separation is nearly identical to one for Dissolution
of Marriage with the exception that at least one of the parties
asserts that the marriage is not irretrievably broken and that
there is a likelihood of reconciliation by the parties. A Judgment
of Legal Separation results in relief nearly identical to a Judgment
of Dissolution of Marriage with the notable distinction that the
parties remain "married."
Back
to Top
Q.
How long do I have to reside in the State of Missouri before I can
file for Dissolution of Marriage?
A. Ninety
days.
Back
to Top
Q.
Is there a waiting period to get a dissolution?
A. Yes. No
Judgment of Dissolution of Marriage may be granted until at least
thirty (30) days have elapsed since the date of filing of the
petition. This is generally of little consequence since the spouse
has thirty (30) days to respond after being served with the petition.
Back
to Top
Q.
We have young children. Does the mother always get custody?
A. No. Missouri
law allows no preference for custody of children based upon gender.
Back
to Top
Q
My spouse has committed adultery. Does that mean I get everything?
A. No. In
Missouri, a court may consider the misconduct of a party which
resulted in or contributed to the breakdown of the marriage and
may in appropriate cases give the "innocent spouse"
a greater share of the marital property. However, this does not
mean that the "guilty" spouse will receive nothing.
Misconduct is only one of several issues the court will address
when dividing property.
Back
to Top
Q.
My spouse has acquired property in his or her separate name during
the marriage. I am entitled to any part of it?
A. Yes. Missouri
law provides that property obtained during the marriage is marital
property, (and subject to division), unless it is acquired by
gift, devise (inheritance), or excluded by written agreement of
the parties.
Back
to Top
Q.
How is child support determined?
A. Child support
is determined based upon the relative income of each parent and
the number of children. The "presumed child support"
amount is calculated using a document called a "Form 14."
A child support obligation will also include each parents' share
of costs for medical insurance, day care, and other expenses necessary
for the care and maintenance of the child. A custody adjustment
is factored in for the time the children are in the actual custody
of the non-custodial parent. A court may order child support in
an amount that is higher or lower than the presumed amount, if
there are compelling reasons why it would be unjust or unreasonable
to use the presumed support amount.
Back
to Top
Q.
Can I recover my attorney's fees and costs from my spouse?
A. Yes, attorney's
fees and costs can be requested from the other party, and may
be granted under limited circumstances. The court is authorized
to award attorney's fees and costs to the prevailing party in
a dissolution action. The award of attorney's fees and costs are
completely at the discretion of the Judge and typically are based
upon the relative income and financial status of the parties.
It should be noted that each spouse will be responsible for his
or her own attorney's fees and costs, if the Judge chooses not
to order them paid by the other spouse.
Back
to Top
Q.
My spouse and I agree on everything. Do we have to go to trial and
have a Judge decide the issues?
A. No. Most
Courts encourage agreements between the parties and uncontested
proceedings.
Back
to Top
Q.
My spouse and I agree on everything. Do we each have to get a lawyer?
A. No. As
long as both parties are in complete agreement regarding all issues,
one attorney can handle the case. Keep in mind that the attorney
can only represent one party, and cannot represent both spouses
without a conflict of interest. The fact that one attorney prepares
all the necessary documents should not pose a problem if both
parties are in agreement. If, however, the unrepresented party
is at all uncertain about his or her rights, he or she should
consult separate legal counsel.
Back
to Top
Q.
I am ready to file. How do I proceed.
A. Make an
appointment with the lawyer. Find out what the lawyer's fees and
retainer are up front. At your first meeting, be prepared to provide
the attorney with biographical information for you and your spouse,
including: name, address, social security number, date and place
of birth, employment and income, maiden name of wife, as well
as the date and place of your marriage, date of separation, names
and dates of birth for each child of the marriage. A detailed
listing of all property, (including real estate, automobiles,
bank accounts, retirement accounts, etc.) owned by you and your
spouse, (whether singly or jointly), will be helpful for the attorney.
Be prepared to pay the initial retainer at the time of the first
meeting. Most attorneys will require that you sign a contract
for legal services to be provided.
Back
to Top
Q.
What is a retainer?
A. A retainer
is a sum of money deposited with the attorney and required to
secure the attorney's services. Most attorneys bill at an hourly
rate. The retainer is typically a deposit reflecting a certain
number of hours of the attorney's time prepaid. The client is
billed based upon the attorney's actual time expended for any
activity related to the client's case, including, but not limited
to telephone calls, meetings, court appearances, legal research,
negotiation, and any other activity related to the client's case.
In the event that the fees for actual time expended exceed the
retainer deposit, the client will be billed for additional time,
and an additional retainer may be required to secure future services.
Back
to Top
Q.
What should I expect after I have hired an attorney?
A. Within
a short period of time, the attorney will typically prepare the
Petition for Dissolution of Marriage and Statements of Income
and Expenses and Property for your signature. If there are children,
a Parenting Plan (outlining custody and visitation) must also
be prepared for filing with the petition. You will need to execute
these documents and pay court costs prior to the filing of your
case.
Back
to Top
Q.
What happens after the Petition is filed?
A. Your spouse
will be served by the sheriff or a process server with copies
of the documents you signed at the lawyer's office. Your spouse
will have thirty (30) days from the date of service in which to
file a written response with the court and your lawyer. If your
spouse does not file a response, a judgment by default may be
taken against him or her after a hearing. If your spouse retains
an attorney and files a response the matter will eventually be
heard by a Judge, unless a settlement is reached which does not
require a court appearance.
Back
to Top
Q.
We have minor children. Do I need to attend a parenting class?
A. Yes. You
will need to complete a parenting class or parent education class
before your case can be heard. Each county has slightly varying
requirements.
Back
to Top
Q.
How long will it be before my case is complete?
A. Every case
is different, and it is impossible to determine exactly how long
a case will take until conclusion. Typically, cases are concluded
within three months to one year from the date of filing. Court
policy provides that all cases must be concluded within one year,
unless the court permits or determines that a longer period is
necessary. It is exceedingly rare for a case to last for more
than a year due to Missouri Supreme Court administrative rules
and guidelines. Obviously, any case which is settled can be quickly
concluded.
Q.
I am in the midst of a divorce and my spouse has threatened to terminate
my health and dental insurance. Is this permissible?
A. No. Section
452.317 of the Missouri Revised Statutes provides that while the
case is pending, no party may terminate health, dental, or vision
insurance for the other party or any minor child of the marriage.
Back
to Top
DISCLAIMER:
THE PRECEDING INFORMATION WAS OF A GENERAL NATURE AND NOT MEANT
TO CONSTITUTE LEGAL ADVICE OR TO BE USED IN, OR APPLIED TO, ANY
INDIVIDUAL SITUATION. THIS GENERAL INFORMATION IS APPLICABLE TO
THE STATE OF MISSOURI AND MAY NOT BE VALID UNDER THE LAWS OF OTHER
STATES. IF THE READER HAS SPECIFIC LEGAL QUESTIONS, HE OR SHE SHOULD
CONTACT AN ATTORNEY.
|
