Most of our clients have a number of questions about their divorce and/or child custody case. In this section, we have compiled the most frequently asked questions (FAQs) and provided answers to them as a way to help you fully understand some of the more common issues which tend to arise in these types of cases. Keep in mind, however, that each and every case is unique and you should consult with an attorney for more specific information and advice.
1) What are the residency and filing requirements for divorce in Missouri?
In Missouri, divorce proceedings are heard in the state’s circuit courts. A divorce proceeding may be filed in the county in which either party resides. At least one of the parties must be a Missouri resident for at least ninety (90) days immediately preceding the commencement of the action and at least thirty (30) days must elapse after the filing of the original petition.
2) What are the "grounds for divorce" in Missouri?
Missouri is a limited “no fault” divorce state, making it unnecessary to prove abuse, adultery, etc., in order to obtain a divorce. A typical "grounds for divorce" stated by a party is "irreconcilable differences" with your spouse. In some cases it may be appropriate to allege other grounds, but rarely is it necessary.
3) Is there a "waiting period" to get a divorce in Missouri?
No court in Missouri can grant a divorce until at least thirty (30) days after a Petition for Dissolution of Marriage has been filed. Realistically, however, even a completely uncontested divorce will generally last about 45 to 60 days from the date of filing.
4) Can both of us use the same attorney?
No. The Missouri Rules of Professional Conduct prohibit an attorney from representing individuals with competing legal interests (this includes parties to a divorce). Even if you and your spouse agree on EVERYTHING, an attorney can only advise and represent ONE of you. That is not to say that you both HAVE to be represented by an attorney -- just understand that, if you are the party who finds him/herself unrepresented, you proceed at your own peril...
5) How will our "stuff" be divided if we can't come to an agreement?
Absent a prenuptial agreement to the contrary, anything acquired during the parties’ marriage is presumed to be marital (and thus, subject to division by the Court), regardless of title. Exceptions to this general rule would include property that was acquired prior to the marriage and property acquired by one spouse through gift or inheritance during the marriage. If the parties cannot agree upon an overall division of the property at the time of divorce, the Court will provide for the "equitable" division of the marital property (and debt) of the marriage. Keep in mind that, in these types of cases, "equitable" division does not necessarily mean "equal" division. There are a number of factors that the Court is required to consider when determining the overall "equitable" division of assets -- all of which can be explained to you fully by your attorney.
6) What is "spousal maintenance" and will I have to pay it?
What was formerly called "alimony" is now referred to as "spousal maintenance." In Missouri, a spouse may be awarded maintenance if he/she does not have sufficient property to provide for his/her reasonable needs and is unable to support him/herself through appropriate employment. The purpose of maintenance is to lessen the financial impact of divorce on a spouse who has not typically worked outside of the home or otherwise maintained regular employment during the duration of the marriage. While most courts are reluctant to award maintenance to the other spouse, there are instances in which it is appropriate, such as in relatively long marriages (more than 7 - 10 years) where there is a significant disparity in the spouses' respective incomes, or where one spouse has a disability that prevents him/her from working in the future. In Missouri, there is no specific formula that Courts use for determining who actually qualifies for maintenance. The Court is, however, guided by the factors as set forth in Section 452.335.2, RSMo in determining the amount and duration of a maintenance award. Again, these factors should be discussed at length with your attorney.
7) What will happen to the children?
Missouri law favors "joint custody," in which the parents share major decisions and each has significant (although not necessarily equal) time with the children. If either parent would like to receive "sole custody" of the children, it is up to that parent to prove to the Court why that would be necessary, appropriate and in the best interests of the children. Obtaining "sole custody" in Missouri is no easy task. The eight (8) statutory factors that a Court must consider in determining custody of the children are set forth in Section 452.375, RSMo, and are as follows:
(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child's adjustment to the child's home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child's custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.
8) How is child support calculated?
If the parents cannot come to an agreement on an appropriate amount of child support, the Court will determine an amount through the use of a mathematical calculation that takes into account the parents' respective incomes, how much time each parent spends with the child, the child's needs, and other factors (such as daycare expenses and the cost of health insurance for the child). Missouri has an online child support calculator that will help you figure out how much you can expect to pay or receive, but as always, we caution you that various factors can skew the figures one way or the other. If you would like a more accurate amount, we will need to go over all of your (and your spouse's) current income information in detail.
9) When can my child decide where he/she lives; and will my child have to testify in court?
In Missouri child custody cases, one of the factors that the Court must consider is the wishes of the child. Courts will allow a child to give testimony on his/her preference if the court determines that it is appropriate under the circumstances. Generally, a Court will consider a child's wishes as to his/her custodian starting at around age 11, depending on the individual child's level of maturity. However, keep in mind that a child's preference is only one factor of many. Obviously, the older a child gets, the more weight his/her opinion is given in deciding who should have custody of the child.
The question of whether your child should testify (or at least be given the opportunity to meet with the judge in private) is one that we will discuss in depth during the course of the custody proceeding.
10) How much will it cost to get a divorce?
There is no standard answer to this question, although it is one that almost everyone asks. The simple answer is: "Just as every marriage is different, so, too, is every divorce." For that reason, we never estimate the cost to handle a divorce for any potential client until we first have had the opportunity to meet with that person and discuss his/her individual situation. We do this during our free initial consultation, wherein we identify all of the potential issues and what our initial retainer will be to begin working on the case. Even so, we cannot guarantee that the total cost will not exceed the initial retainer because the amount of time needed to bring a case to conclusion varies significantly from case to case. However, we work hard with each and every one of our clients to assist them in being a judicious user of our time and we keep them constantly apprised of how costs are progressing.
If you would like more information or advice, please give us a call today (816.230.5550) to schedule your free initial consultation so that we can discuss all of your options.