Understanding the divorce laws and the divorce process in Missouri can help you make decisions based on facts and your goals, rather than on emotions and misinformation.
Alternative Divorce Resolution
Child Custody In Missouri
Missouri Child Support, Visitation and Paternity Issues
Property Division In Missouri
Additional Divorce Issues
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Grounds For Divorce
In Missouri, the person who files for divorce is called the petitioner. The other spouse then becomes the respondent. Missouri accepts either fault or “no fault” as grounds for divorce. If a couple agrees that they have irreconcilable differences, and they both agree to the divorce, they would fall into the no-fault category. In that instance, both spouses would be considered co-petitioners. If the petitioner wishes the divorce, and the respondent does not, then grounds for divorce will need to be proven. The grounds for divorce in Missouri include:
- Intolerable cruelty
- Living apart for at least one year by mutual agreement
- Living apart for two years without mutual agreement
Divorce Waiting Periods
Marriage is a serious commitment, and so too divorce, the state requires that certain timelines must be met as a minimum requirement. Those timelines are:
- Either the petitioner or the respondent should be a resident of the state for 90 days prior to filing the Petition for Dissolution of Marriage.
- The respondent has 20 days to respond to the petition.
- The court requires a minimum of 30 days between the Petition for Dissolution of Marriage and the Decree of Dissolution of Marriage.
As a practical matter, it often takes longer than this amount of time. Some issues, such as the valuation of property, may take time to accomplish.
On occasion, a couple will prefer to be legally separated either as an intermediate step on the way to divorce, or as an alternative to avoid divorce. Legal Separation would cover the same issues as those covered during a divorce such as child custody determinations, division of property, and child support or spousal maintenance payments. In order for the court to approve a legal separation, the following conditions apply:
- The residency and waiting period requirements have been met
- There is a reasonable likelihood that the marriage may not be irretrievably broken (there’s still hope for conciliation)
- The child custody, child support, spousal maintenance and division of property issues have been settled
An annulment is a way of ending a marriage by stating that it never existed. A civil annulment is an entirely separate matter than a religious annulment. A civil annulment voids the marriage completely. Situations that can lead to an annulment include:
- Underage spouse (not 18 at the time of the marriage, not yet 18 and lacking parental permission, those who are 14 or 15 and lacking court permission)
- Spouse married under duress, intimidation, false pretense and other similar situations
- Spouse was unable to consent to the marriage (was intoxicated, lacked mental ability or under the influence of drugs)
- One spouse was already married at the time of the marriage (bigamy)
- Spouses are closely related (cousins, aunt/nephew, uncle/niece, grandparent/grandchild, siblings/half-siblings)
An annulment will negate the payment of spousal maintenance or alimony, but not the need for child support. If you and your partner had a child together when you were married, and your marriage was annulled afterward, both parents are still financially responsible for the child or children and child support payments may be required.
There are a variety of ADR methods available in divorce courts throughout the U.S. In Missouri, the ADR method that is recommended is mediation. During mediation a neutral third party will work with both husband and wife to reach mutually agreed upon decisions regarding child custody, division of property and other matters. The mediator helps the couple communicate and does not take sides.
Child Custody Determinations
Child custody determinations in Missouri are made by the court according to the child’s best interests. It is preferred that the parents agree on a child custody arrangement that the court will then approve, however, if they cannot decide then the court will make the determination.
Gone are the days when the children automatically went into the physical custody of the mother. Today, joint or shared custody is preferred. The types of child custody options in Missouri include:
- Joint legal custody (both parents make religious upbringing, educational and health care decisions)
- Joint physical custody (both parents care for their children with overnight stays, typically every other week)
- Sole physical custody (the child lives with one parent and the other parent has visitation privileges)
- Third-party custody (both parents are unfit for some reason and so a third party is the guardian)
Visitation and Parenting Plans
To provide you with an idea of how specific a parenting plan needs to be, consider this information provided by the state of Missouri’s General Assembly Office. It states that the parenting plan should include provisions regarding:
- Educational decisions (how they are communicated with the school and with each other)
- Medical, dental and health care decisions (how providers are selected, how communication is handled, how emergency care decisions are made)
- Extracurricular activities (which ones, who drives, who pays)
- Child care providers (how is the day care provider selected)
- Communication between parents (phone, email, text, in person)
- Problem-solving (a plan for resolving disputes)
Both parents are considered responsible for support of their children. The financial amount each one is responsible for will depend upon several factors, including how many children exist from the marriage, the gross income of each parent, and whether or not one of the parents has sole physical custody.
Although the state provides a formula to determine child support, an accurate estimate of what a spouse may receive or be required to pay is difficult to determine without the assistance of an attorney.
Child Support Enforcement
Once a child support amount has been determined, the court can enforce this payment. The spouse who has not received the child support payments can go to the court and ask for child support enforcement. Enforcement measures include wage garnishment, withholding of federal income tax refunds, ordering employers to enroll children in health care coverage plans and other measures.
Either parent can request a termination of child support, although withholding child support payments is not permitted. A custodial parent is not allowed to withhold visitation as a consequence of child support payments not being made. Likewise, a noncustodial parent is not allowed to withhold child support payments if visitation privileges are being denied.
These issues must be handled through the court system and the advice of an attorney is recommended.
Occasionally, paternity will need to be established prior to requesting either child support payments or visitation rights. An involuntary paternity can be ordered by the court and accomplished by DNA testing via a simple mouth swab. A voluntary paternity determination can be made if both parents sign a voluntary acknowledgement. Paternity is automatically determined if the parents are married when the child is born, or if the child is born within 300 days of separation, divorce, annulment or death of the father.
Division Of Property
The state of Missouri is considered an equitable property state in terms of the division of marital property. This means that the assets and debts acquired during a marriage are divided in a way that the court determines is fair. This is not necessarily equal. The court may award one spouse more assets in recognition of contribution to the marriage, or as a negative consequence of hiding assets or committing adultery.
The assets and debts that are divided include:
- All motor vehicles and boats
- Collections of value (art, coins, guns)
- Credit card debt
- Household furnishings, clothing and jewelry
- Personal loans
- Real estate property, including the family home
- Retirement savings such as IRAs, Keoghs and 401(k)s
- Stocks, bonds, other investments
Property that is not divided include wedding rings (each keeps his or her own), property that was owned prior to the marriage (separate property) and property that was inherited (separate property). In order for separate property to be considered separate, it must not have been commingled with the marital property. It must always have remained separate.
After the property has been divided in an equitable manner, the court will decide whether or not one spouse should receive an alimony payment, and if so, how much. Alimony, also called spousal maintenance, can be awarded provided one of two conditions is met:
- The requesting spouse is unable to be self-supporting
- The requesting spouse is caring for a child with special needs and working outside the home would be a detriment to that child’s care
Eavesdropping During Divorce
During the divorce process, the court will consider some the actions of each spouse and misbehavior when considering a child custody determination or an equitable division of property. For example, if there has been domestic violence or abuse, the offending spouse may not have unsupervised visitation with a child.
Another example of this is Missouri’s “wiretapping law.” The law was created to protect the rights of citizens and at the same time grant law enforcement a limited right to eavesdrop on potential criminals.
Wiretapping also includes eavesdropping and it applies to citizens, including spouses in the midst of divorce. Spouses are not permitted to wiretap or eavesdrop on each other to gain proof of adultery for example.
Prenuptial And Postnuptial Agreements
Given the relatively high rate of divorce in Missouri and other states, it may not be a surprise that the use of prenuptial agreements is on the rise. These documents are requested by women as well as by men. The agreement covers the same topics that would be covered in a divorce decree such as child custody determinations (even if there are not yet any children), division of property and spousal maintenance.
A prenuptial agreement is signed prior to the marriage and a postnuptial agreement, which covers the same topics, is signed after the marriage.
When a couple divorces, the grandparents who previously had a great deal of access to their grandchildren, may be prevented from continuing this relationship if a parent denies them visitation privileges. The grandparents may be granted visitation rights by the court provided that it is in the child or children’s best interests. The grandparents may request visitation after 90 days of unreasonably denied visitation.
To learn more about the legal issues that will affect your family, contact us today to speak to an Missouri divorce lawyer.