Often Asked Question by a Divorce Lawyer
A proceeding for dissolution of marriage (Divorce) is a particularly upsetting event for people to go through. The stress of going through the process, the stress of what led to the decision to file, and the stress of “what is to come” in the future can seem unbearable. As a Divorce Lawyer, my job is to make this process bearable, to help you get through not only the legal proceedings, but to alleviate some of the stress that your experiencing. Like anything else, the more you know, the better you’ll be. This article discusses most of the areas which concern our clients. We hope it will help remove some of the uncertainties you have.
1. What are the “grounds” for Divorce?
Missouri has adopted the concept of a modified “no-fault” dissolution of marriage, making it generally unnecessary to prove cruelty, adultery, etc., in order to obtain dissolution of marriage. The usual ground is to show the Court that the marriage of the parties is irretrievably broken, and that there is no reasonable likelihood that the marriage can be preserved, because of discord or conflicts of personality that destroy the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. Irretrievably broken is an advanced case of not getting along with each other. In a few cases it may be appropriate to allege other grounds. You should discuss these other grounds at the first appointment with your divorce lawyer.
2. What is a Legal Separation?
Legal Separation: Although in some isolated instances a legal separation is possible, it is not generally used and we will be happy to discuss the details of a legal separation with you if the facts or circumstances suggest its consideration. If you are not ready for dissolution of marriage but you want to talk things over with someone, we would be happy to do so, but probably will recommend counseling services and not legal services.
3. Do I have to live in Missouri to file for a Divorce in Missouri?
Residence Requirements: Prior to filing your Petition for dissolution of marriage, you must have resided within the State of Missouri for 90 days. Your spouse need not be a resident of the State of Missouri.
4. How to I start the Process of Divorce?
Starting the Proceedings: The first step is the preparation and filing of a Petition. The Petition states the names and ages of the husband, wife and all children born or adopted during the marriage; when and where you married and when you separated; that the residence requirement has been satisfied; and other information relating to custody and residence of children for the past five years and information concerning any prior actions affecting their custody; and that your marriage should be dissolved. It also asks the Court to name the parent or other party who is to have primary care, custody and control of the minor children, and if you and your spouse cannot agree, to provide for support, visitation, property division, attorney’s fees and court costs. If your spouse has already filed, be sure to bring a copy of the Petition — especially if you have been served by the sheriff.
5. Do I have to separate from my spouse for a divorce?
Although there is no legal requirement for actual separation before filing the Petition, it may cause some practical problems as well as legal ones.
6. Should I file for a divorce before my spouse does?
There is no legal significance as to whether the husband or the wife files the Petition, although there may be procedural and tactical advantages for the Petitioner. Pride is another matter. Talk it over with your spouse and let’s avoid a race to the courthouse and further hurt feelings over this small item.
7. How long does a divorce take?
No dissolution of marriage can be granted until at least 30 days has passed following the date of service of the Petition. This is a minimum interval. Other time limits may affect your case depending upon the facts and circumstances. Our experience indicates that a normal interval of about 90 days for uncontested dissolution of marriages and up to 18 months for contested dissolution of marriages. During the waiting period we will be trying to help you work out the details of custody, visitation, support, and property settlement.
8. Do I have to have a Petition served on my spouse?
Service or Waiver? After the Petition is filed, your spouse must receive proper notification. One way to do this is to ask the sheriff to hand deliver a copy of the Petition to that spouse. Sometimes this brings on embarrassment and angry feelings. An alternative is to have that spouse sign a document called a Waiver. A Waiver acknowledges receipt of a copy of the Petition. Our policy is to attempt to use the Waiver process. Don’t let your spouse worry you by refusing to sign a Waiver. It is no trick for us to obtain service.
9. What is “legal custody” in Missouri?
Legal Custody: Legal custody determines which of the parents will make major decisions for the children. Major decisions include the choice of schools, doctors, child care providers, major dental work, psychological or psychiatric counseling, etc. Unless there is a compelling reason otherwise, Courts generally grant Joint Legal Custody; in that case, the parents must make major decisions jointly.
10. What is “Physical Custody” in Missouri?
Physical Custody: Physical custody refers to where the children will be physically located. Similar to legal custody, unless there is a compelling reason otherwise, Courts generally grant Joint Physical Custody with the children splitting their time with each parent. While the court may grant joint physical custody, the children will use only one parent’s address for mailing and education purposes.
11. Who will get the kids in a Divorce?
Custody in General: If you and your spouse can work out the details of custody plan prior to a hearing or trial on the matter, the Court will usually approve that plan. The Court, as well as our office, encourages the sharing of legal and physical custody except in extraordinary circumstances. Major disagreements over legal and physical custody of the children will likely put you right in the middle of a bitterly contested and expensive dissolution of marriage.
12. Child Support in Missouri (The Basics)
Child Support: Missouri has adopted a standard formula for the calculation of child support. The formula is based upon the income of both parents. This formula is used in most cases unless very unusual circumstances are present. The Court can require support of a child generally until the age of 18; and if the child is attending college, to the age of 21. If you have a child with certain disabilities, be sure to let us know, as it may be possible to have support continue after this child becomes 18.
13. The required parenting class.
Yes, you’ll have to take it. Some courts require all parties in a proceeding for dissolution of marriage to participate in and successfully complete a court-approved parent educational program; and file a certificate of completion with the Court. Each party is responsible for paying the cost of their own program.
14. How is Property divided in a Divorce?
There is no fixed way to determine how you and your spouse may wish to divide your property, and there is no guaranteed way to determine how the Court will divide your property in the event you and your spouse cannot agree how to do so. Liabilities as well as assets must be considered. The primary and statutory factors that the Court will consider if it is called upon to divide your property are as follows:
(A) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker.
(B) The value of the property set apart to each spouse.
(C) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having the custody of any children.
(D) The conduct of the parties during the marriage.
The Court only has jurisdiction to divide marital property, that is, property acquired by either spouse subsequent to the marriage. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the Court. If you cannot agree, the Court will divide the property and the wife with minor children will generally be awarded more property than the husband. Again, a reasonable agreement as to the division of property cannot be made you can expect a bitterly contested and expensive dissolution of marriage.
The Court will entertain a motion for temporary orders of child custody, support, attorney’s fees on account and other temporary relief, such as issuing an injunction against a spouse from physically abusing the other spouse or children; removing a spouse who is violent and destructive from the family home, etc. If you feel you will need this sort of temporary relief, be sure to let us know during your first appointment.
15. What is an Uncontested Divorce?
Your dissolution will be contested unless you and your spouse agree that a dissolution should be sought and agree to all aspects of custody, visitation, support, property settlement, and the payment of liabilities, attorney’s fees and court costs. If your spouse disputes any of these matters, you do not have an uncontested dissolution and a trial will be necessary. Your spouse’s mere failure to sign a Waiver will not necessarily make this a contested case.
16. What is Maintenance?
The Court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her or him, to provide for his or her reasonable needs and that such spouse is unable to support herself or himself through appropriate employment, or that the custodian of a minor whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. A maintenance order will be issued only in such amounts and for such period of time as the Court deems just after considering all relevant factors. These factors include the financial resources of the party seeking maintenance, the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, a standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of the spouse seeking maintenance, the ability of the spouse from whom maintenance is sought to meet their needs while meeting those of the spouse seeking maintenance, and the conduct of the party seeking maintenance during the marriage.
17. What are the Court Cost to File a Divorce?
Court costs, which include the cost of filing the petition and having the petition served on your spouse, can vary depending on the county in which the case is filed; however, court costs are generally below $300.00. If there are depositions or investigations, several hundred dollars in additional costs is not unusual.
18. The Cost of a Divorce
If the case is uncontested, court costs are the only costs associated with dissolution of marriage. However, it is not unusual to incur several hundred dollars in additional costs in a contested case. Things that would increase your costs would be depositions, investigations, and the necessity for a guardian ad litem. If your case becomes hotly contested, you may pay for these items as we go. It is not our policy to lend money to finance your case.
Attorney Fees for a Divorce in Missouri
The exact fee will vary with the services you and your case require, and the time that it takes us to perform those services. Basic dissolution of marriage services include our initial conference; the preparation and filing of the Petition (or the review of the Petition filed by your spouse); the preparation of a Waiver to be filed by your spouse or arranging for the sheriff to serve your spouse with a copy of the Petition; obtaining information from you concerning your assets, liabilities, income and expenses and making recommendations concerning property division and support; routine settlement negotiations with your spouse’s attorney; preparation and review of Property Settlement and Support Agreement; preparation or review of Decree of Dissolution; preparation or review of forms required by the Missouri Division of Vital Statistics; and attending one Court hearing to have the case disposed of as an uncontested dissolution. The fee for these services generally runs between $2,000.00 and $3,000.00. A more exact range can be estimated at your first appointment.
Additional fees are charged for additional personal or telephone conferences, extensive negotiations, frequent telephone calls, complicated tax planning and advice, and for all other Court appearances.
Generally speaking, parties to a domestic relations case are responsible for paying their own divorce lawyer’s fees. Nevertheless, if a trial is necessary, the judge may award attorney’s fees after considering relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action. In any event, you are responsible for paying our agreed fees; however, we will give you full credit for any payments made by your spouse.
We require a deposit at the time of the initial interview in the amount of the initial Court costs and a retainer toward our fee and full payment by the time of the final hearing. Credit terms can be arranged in some cases. We will discuss our fee with you at this first meeting.
Do we both need a divorce lawyer?
One Lawyer for Both of You? We believe it is not practical or ethical for one lawyer to represent both parties in a proceeding for dissolution of marriage; and therefore, we refuse to do it. We will represent you and you alone. If your spouse does not have a lawyer, the only advice we can give him or her is to seek the advice of another lawyer.
What if we reconcile?
Sometimes dissolution of marriage seems like the only solution. Often it is not. After dissolution of marriage action is commenced, you may decide to change your mind and try to work things out. Our policy is to encourage efforts toward reconciliation, and if you decide to drop the dissolution of marriage action you will owe only for the retainer or for those services actually performed up to that time.
Change of Wife’s Name: A wife’s former name may be returned to her as part of the final Decree. If you want this service, you must let us know before we prepare the Petition.
Final Decree of Dissolution of Marriage: If there is no appeal, your dissolution will be final the day it is granted in Court or on the day the Judge signs the Decree if that date is later.
Remarriage: You may not marry anyone except your spouse for 30 days after the dissolution is final.
Dating: Don’t. You’re married. Have to? Know that your spouse might use it against you. Already involved? Can’t resist? You’re an adult. Make your own decision, but be prepared to face the problems that may arise. And — be truthful with us when we ask you about this.
Confidentiality: We must have all the facts to represent you properly. We have a worksheet for you to complete so that we may have some basic information. Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission.
Keeping You Informed: We will make every effort to keep you informed of the progress of your case. Please do not hesitate to call the office if you have any questions; but bear in mind that we are often in Court or in conference with other clients when you may call. If you are not able to reach us directly when you call, please leave a brief message concerning the purpose of your call. We will return your call as soon as possible.
Our Professional Services: In performing legal work for you, we provide an experienced attorney, competent staff support, modern equipment and research library facilities. Your legal problems are given our continuing personal attention in an effort to obtain for you the best results possible in the most reasonable time and at an irretrievably cost. Although we are interested in helping you resolve your personal problems, we are not trained to provide counseling services.
19. Your Responsibilities
We expect you to be cooperative and truthful with your divorce lawyer. If you are not, we will not continue to represent you. We also expect you to handle your financial commitments to our office in a prompt and business-like manner. Please notify us of any change of address or telephone number or if you learn anything that may affect your case.
20. Watch for Advice and Emotions
Your well-meaning friends and associates may offer you advice about your case. Frequently such advice is not accurate and you should be cautious in following it. The facts surrounding your marriage, dissolution of marriage, children and property are unique and they differ from every other case. Dissolution of marriage proceedings is very emotional and parties sometimes use them to seek revenge. Sometimes one parent will use the children in an attempt to punish the other parent. Prepare your children properly without poisoning their minds about your spouse. Obtain professional advice if possible. Attempt to cooperate with your spouse where the children are involved. Discuss support and property division with your spouse. Be fair.
21. Divorce: Wills and Insurance Considerations
If you and your spouse currently have wills, insurance policies, or some other asset that one or the other is named as a beneficiary, you will probably need to make some changes. Changing beneficiaries of an insurance policy is done by contacting the insurance carrier. The same applies to certain other accounts. However, if you need to change the beneficiary of a will, you will need to draft a new one. We will be happy to guide you to a qualified expert if the need exists.
Markwell Law, LLC