Understanding Missouri Divorce Law Procedures — A Brief Overview

So you find yourself facing a divorce, and you’re not really sure what all is involved in the process. This post will give you a brief overview of what generally happens in a Missouri divorce proceeding.

1.   It all starts with the filing of a petition, which is usually prepared by an attorney, and payment of the applicable court filing fee. The petition will contain general allegations regarding the husband and wife, the marriage itself, the children, whether there is property and/or debts to be divided by the court, and whether maintenance (what used to be called alimony) is being sought. The petition is signed by the petitioner’s attorney, and is verified (i.e., signed and notarized) by the petitioner.

2.   Once the petition is filed, the court clerk will issue a summons. The summons is a document that will be served on the other party (the respondent) together wit a copy of the petition. the summons notifies the respondent that the case has been filed, and that he or she must answer the allegations in the petition within a certain amount of time. The allegations in the petition are answered by filing an “answer” with the court and serving a copy of it upon the petitioner’s attorney through the mail.

3.   After the time has expired for the respondent to file an answer, if he or she has NOT filed an answer then they are in default, meaning that the allegations contained in the petition are deemed to be true. If the respondent is in default, the petitioner’s attorney can set the matter for a default hearing, and ask the court to grant the petitioner the relief he or she has requested in the petition. If the respondent DID file an answer to the petition, the case will generally move into the “discovery” phase.

4.   Written Discovery — During the discovery phase, each party may serve a set of written questions on the other party. these written questions are called interrogatories, and they must be answered under oath within a certain amount of time. Also, any objections to the interrogatories must be made within a certain amount of time, or the party upon whom the interrogatories were served is deemed to have waived any such objections. In addition to interrogatories, each party may serve the other party with “requests for admission” and with “requests for the production of documents”. A request for admissions asks the other party to admit or deny certain facts, and the answers to the requests must be provided in writing and under oath. A request for production of documents requires the party upon whom the requests were served to provide certain documents that he or she has within their possession or control. Depending on the amount of discovery that is served, and the level of cooperation from each party in answering the discovery requests, this phase of the litigation can take anywhere from several weeks to several months.

5.   Depositions — In addition to written discovery, each party has the right to take depositions. A deposition is were the attorney for one party asks the other party questions. the deposition is recorded by a court reporter, who is present during the deposition, and the answers to the questions are given under oath. Depositions may be taken of the parties to the case, and also may be taken of persons who are not a party to the proceedings.

6.   Financial Statements — Prior to trial, each party must submit an Income & Expense Statement to the court, and must also submit a Statement of Marital and Non-Marital Assets and Debts. these documents must be signed by the party submitting them, and must be notarized. the court will use these documents in diving the marital assets and debts between the parties, and in setting child support and/or maintenance.

7.   Child Support — Also prior to trial, each party must submit a child support worksheet to the court, called a Form 14. The child support worksheet is filled out in accordance with Missouri Supreme Court Rules, and the final calculation will show the amount of child support that is presumed to be the correct amount. Because there are different factors that can affect the amount of child support in a case, each party’s Form 14 may show a different child support amount, and it is up to the judge to decide which Form 14 to adopt, or to order a different child support amount altogether.

8.   Parenting Plan — If the case involves minor children, each party will also submit a parenting plan to the court prior to trial. the parenting plan outlines the custody arrangement that is being sought, the parenting time or visitation schedule between the child(ren) and each parent, the holiday schedule, and will also address several other matters concerning the child(ren) such as who must provide transportation, who must pay for health insurance and uninsured medical expenses, and who can claim the child(ren) as dependents for tax purposes. The parenting plans are usually very detailed, and address many other parenting issues not listed above.

9.   Parenting Class — Each party must also attend a parenting class prior to trial, and generally within a certain amount of time after the case has been filed. The parenting class is specifically designed to teach parents the do’s and dont’s of co-parenting the children, and how to effectively communicate with one another regarding the children despite differences of opinion. The class is usually a single class that is 2 or 3 hours long.

10.   Mediation — The court may also the parties to attend mediation to see if they can work out their differences and come to an agreement on at least some–if not all–issues in the case–i.e., child custody and parenting plan, child support, property division, debt division, and maintenance. Mediation is conducted by a mediator, who is an objective third party, usually a lawyer, specially trained in helping the parties reach agreements. If the parties do reach agreements on certain issues, then those issues will not have to be tried by the court.

11.   Settlement Negotiations — Throughout the proceedings, the parties (generally through their respective attorneys) will generally try to negotiate with one another in an effort to settle the case without having to have a trial. If the parties are able to reach a settlement agreement, the agreement will be put in writing by one (or both) of the attorneys, and the parties will sign it under oath. In most cases the court will approve of the parties’ agreement so long as it is fair and not unconscionable, and is in the best interests of the minor children involved in the case.

12.   Trial — At trial, the court will hear evidence on any issues where the judge must make a decision. In some cases the parties will reach a last minute settlement agreement that has not yet been put in writing; in such cases the parties will generally have the attorneys read the therms of the agreement into the record in open court. If there are any issues that have not been settled or agreed upon, then the judge will make his or her decision regarding those issues after hearing all of the evidence. Sometimes the judge will give his or her ruling the same day, and other times the judge will take the matter under advisement and give his or her decision at a lather time.

13.   Judgment Decree of Dissolution of Marriage — Once the judge has given his or her ruling, the judge will usually ask one of the attorneys to draft the final judgment. The attorney who drafts the final judgment will send a copy of the draft to the other attorney, and not attorneys must be in agreement tat the proposed draft accurately reflects the judge’s ruling. Once the attorneys are in agreement as to the form of the judgment, it will be submitted to the judge for his or her signature. The judgment becomes final 30 days after it is signed by the judge.

14.   Post-trial matters — After the judge has signed the judgment, each party has a set amount of time to file post-trial motions asking the court to reconsider its ruling, asking for a new trial, and/or asking for the judgment to be vacated or set aside. Also, each party has a certain amount of time in which they can appeal the judges decision to the Missouri Court of Appeals. Once those time limits ave expired, it is very difficult to get a judgment amended or set aside.

While the above outline is not an all inclusive picture of what occurs during a divorce proceeding, it does offer a brief overview of the different procedural aspects of the proceeding. Future posts will address matters such as child custody, child support, maintenance, etc., in more detail.

If you or someone you know needs to consult with an experienced and knowledgeable attorney regarding a divorce, child custody, child support, or other family law matter, please do not hesitate to contact the Law Office of Kenneth J. Geniuk, LLC to schedule a free consultation.

Understanding the Uncontested Divorce in Missouri

Perhaps you and your spouse have been talking about getting a divorce, and the two of you have already reached certain agreements concerning your children, your property, etc., and now you’re ready to visit with an attorney. The following information is to help you understand the issues that will generally need to be addressed in an uncontested divorce so that you will be ready when you meet with your lawyer.

 I.      An uncontested divorce means that you and your spouse have already reached an agreement with respect to ALL of the issues. These issues include child custody, a parenting time schedule, child support, division of assets, division of debts, and whether there will be any maintenance paid from one spouse to the other.

 II.     Child Custody / Parenting Plan – Your divorce will involve all minor children born between you and your spouse. It also includes children the two of you have adopted. It does NOT include step-children. You and your spouse will first have to decide upon the custody arrangement. (The preferred custody arrangement in Missouri is for the parents to have joint legal and joint physical custody with one of the parents’ address designated as the child’s address for educational and mailing purposes.) In addition to deciding upon the custody arrangements, you and your spouse will also need to be in agreement with respect to the parenting plan, which is a document that must be filed with the court. In Missouri, the following issues must be addressed in the parenting plan:

 (1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:

(a) Major holidays stating which holidays a party has each year;

(b) School holidays for school-age children;

(c) The child’s birthday, Mother’s Day and Father’s Day;

(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;

(e) The times and places for transfer of the child between the parties in connection with the residential schedule;

(f) A plan for sharing transportation duties associated with the residential schedule;

(g) Appropriate times for telephone access;

(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;

(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;

(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:

(a) Educational decisions and methods of communicating information from the school to both parties;

(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;

(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;

(d) Child care providers, including how such providers will be selected;

(e) Communication procedures including access to telephone numbers as appropriate;

(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;

(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;

(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the supreme court, will be paid including:

(a) The suggested amount of child support to be paid by each party;

(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;

(c) The payment of educational expenses, if any;

(d) The payment of extraordinary expenses of the child, if any;

(e) Child care expenses, if any;

(f) Transportation expenses, if any.

As you can see, there is much more that is involved in a parenting plan than just the issues of custody and a parenting time schedule, so you and your spouse will need to make sure you are in agreement on each of the items listed above.

III.      Child Support – You and your spouse will need to discuss the issue of child support and come to an agreement on how much, if any, child support is going to be paid by one spouse to the other. Keep in mind that the Missouri Supreme Court has rules regarding how much child support is presumed to be the correct amount based on your incomes and other factors, and the judge assigned to your case does not have to accept the child support amount that you and your spouse have agreed upon, although most of the time the judge will accept such an agreement.

IV.      Property Division – You and your spouse will need to reach agreements on how you are going to divide all of the marital assets, which is all property acquired during the marriage except for property acquired by gift (from someone other than your spouse) or inheritance. It does not matter whose name the property is titled under. Make sure you have addressed ALL of the marital property, which can include some or all of the following: real estate, motor vehicles, bank accounts, cash on hand, securities (stocks, bonds, etc.), life insurance cash values, household goods, retirement/pension funds, interests in trusts, interests in contracts made but not performed, interests in pending litigation or lawsuits, interests in farm equipment and livestock, debts owed to you by others, business interests, and other types of assets that have value.

V.      Debt Division – You and your spouse will also need to reach agreements on who is going to be responsible for each debt. Different types of debt may include: mortgages, installment loans (for example, a car loan), bank loans, equity lines of credit, credit card debts, medical bills (for each of you and for the children), past due utility bills and insurance premiums, and other types of debts. Debts generally do NOT include ongoing monthly expenses such as utilities, food, clothing, etc., unless you are making monthly payments on an outstanding balance.

VI.     Maintenance – You and your spouse will also need to discuss whether either of you is going to receive maintenance (what used to be called alimony) from the other. In deciding this issue, keep in mind that maintenance payments are taxable to the spouse receiving it, and is a deduction off the adjusted gross income for the spouse paying it, so there could be tax consequences as a result of any maintenance agreement you may reach.

In sum, if you and your spouse are looking at hiring an attorney for an uncontested divorce, it is important that the two of you have considered every aspect of the divorce, and that you are both truly in agreement on those issues. If the two of you are in agreement on everything, then your attorney can draft the Marital Separation and Property Settlement Agreement for each of you to sign. Once this is signed, it is then just a matter of preparing the remaining pleadings and financial statements (required by the court), and filing everything with the court. After that, you can expect your divorce to be finalized generally in about 60 to 90 days.

If you and your spouse are considering getting a divorce, and you feel you have reached an agreement concerning every aspect of the divorce, consider contacting the Law Office of Kenneth J. Geniuk, LLC  to schedule a free initial consultation.