Missouri Dissolution of Marriage FAQCopyright © 1997 William T. Quick
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The following are frequently asked questions about divorces in Missouri. Suggestions as to topics or questions that should be added to this FAQ are welcomed, which you can send to firstname.lastname@example.org. For additional information about how to contact our offices, see Law Offices of William T. Quick: Contact Information.
What is a Dissolution of Marriage in Missouri?
Dissolution of Marriage is a civil action in which either the husband or wife, or both, ask a Missouri court to legally dissolve a marriage (in other words, to grant a divorce). At the time of the final hearing, a court will grant a dissolution of marriage if it believes that the marriage cannot be saved. In addition, the court will divide the marital property of the parties between them, will enter orders concerning custody and support where children are involved, and will also grant or deny maintenance (alimony) to the spouse who requests it. Missouri's primary statute dealing with dissolutions of marriage is contained in Chapter 452 of the Revised Statutes of Missouri (R.S.Mo), beginning with Section 452.300. (Return to Top)Is there anything I should know before beginning a Dissolution of Marriage action?
There are several things to keep in mind before deciding to file for a dissolution of marriage. There is nothing "easy" about a divorce, and it is likely to be one of the most stressful experiences of your life--both emotionally and financially. The expense of hiring an attorney is one cost. A far greater cost is the reduced standard of living both parties will experience, as the same income and resources that once maintained a single household must now be stretched to provide for two separate households.How is a Dissolution of Marriage started?
Each Dissolution of Marriage action in Missouri begins with the filing of a "Petition for Dissolution of Marriage" with the proper court. The party who files the petition (whether it is the husband or the wife) is known as the "petitioner" and the other party is called the "respondent." The petition must state that the marriage of the parties is irretrievably broken and that there is no reasonable likelihood that the marriage can be preserved. In addition, the Petition must provide the court with certain other information about the parties and their marriage, including the date and location of the marriage, when the parties separated, where the parties currently reside and work, whether there are any minor children of the marriage and where they presently reside. If the petitioner is seeking maintenance (alimony) from the other party, certain statements must be included in the petition which show the need for maintenance. If minor children are involved, the petition should tell the court what kind of custody arrangements the petitioner believes will be in the children's best interests. If there is property which the court needs to divide between the parties, this fact should be stated as well. The facts stated in the petition are often called "allegations of fact." The petition concludes with "prayers for relief"--in other words, a statement or list of the things the petitioner is asking the court to do, such as dissolving the marriage, dividing the property, giving custody of the children to the appropriate spouse or to both spouses jointly, ordering a spouse to pay child support or maintenance, and so on. The petition must be signed by the petitioner under oath and be notarized. See Section 452.310, R.S.Mo. (Return to Top)Don't I have to list fault grounds in my petition to obtain a dissolution of marriage?
No. Since 1974, Missouri law permits a court to grant a dissolution of marriage if there is no reasonable likelihood the marriage can be preserved and the marriage is irretrievably broken. No specific allegations of fault are required. However, fault or misconduct of a party is often alleged in the petition anyway. Misconduct of a party that contributes to the marital breakdown can be considered by the court in deciding how the marital property should be divided. In addition, whenever maintenance (alimony) is being asked for, the conduct of the parties during the marriage is one factor considered by the court when deciding whether and how much maintenance a spouse should receive. Finally, misconduct by the respondent makes it harder for him/her to challenge the granting of the dissolution when the respondent chooses to deny that the marriage is irretrievably broken. (Return to Top)Can anyone file for a dissolution of marriage in Missouri?
No. Missouri law requires that at least one of the parties must have been a resident of the state of Missouri for at least 90 days immediately preceding the filing of the petition. (Return to Top)What is the respondent's role in a dissolution of marriage?
Once the petition has been filed, the law requires that the respondent receive notice of the action and a reasonable opportunity to be heard. "Notice" is accomplished when a deputy sheriff or process server physically delivers a copy of the petition to the respondent. Physical delivery of the papers is referred to as "service of process." Sometimes personal delivery of the petition is not necessary, such as when the respondent signs a statement that he/she has received a copy of the petition in the mail or directly from the petitioner. Signing such a statement also constitutes "service of process" for purposes of beginning the dissolution action.What happens if the respondent doesn't file an answer to the petition within the 30 days after being served?
In that case, the court may grant a "default judgment" against the respondent. Because the respondent failed to file an answer, he/she is considered to be consenting to all the relief requested in the petition. The court will hold a "default and inquiry" hearing and will usually grant to the petitioner everything that was asked for in the petition, including a dissolution of marriage, a division of marital property in the manner requested by the petitioner, custody and child support orders where minor children are involved, and even a maintenance award and a judgment for attorney fees and court costs in the suit--so long as these things were requested in the petition. Thus, the consequences for the respondent who fails to file an answer can be quite severe. The law does permit a respondent to return to court after the default judgment has been entered and seek to have it "set aside" or undone, so long as the respondent does so within a "reasonable time" and can demonstrate very good reasons for having failed to file the answer. The court may or may not decide to set aside the earlier judgment, as it sees fit. (Return to Top)What happens if the respondent can't be located or evades service of process?
If your petition can't be served, the law permits "service by publication" to the respondent. This process involves obtaining the court's permission to publish an announcement about your petition for dissolution in a local newspaper. The respondent has forty-five (45) days from the last date of publication to file an answer to the petition. After the 45 days have passed, the court may also grant a default judgment, but the scope of that judgment is more limited. Because the respondent was not personally served, the court cannot enter a personal judgment against him/her for child support or maintenance, but it can grant the dissolution of marriage and, under proper circumstances, enter orders about the custody of the minor children. Once the respondent is located and can be properly served, the case can be reopened for the purpose of obtaining the additional relief which the petitioner was unable to obtain the first time. (Return to Top)What if the respondent files an answer to the petition?
Usually, the respondent does file an answer. At this point, the parties and their attorneys will usually enter into negotiations toward reaching an agreement about the issues in the dissolution case. In addition, there will often be "discovery" by one or both parties. Discovery is a procedure where one party can require the other to answer certain questions under oath or supply certain documents. Discovery permits each party to learn about the assets and income of the other, as well as what the other party can be expected to say to the judge in the event of a trial. Generally, the court will also require each party to file detailed financial statements about their income and assets.What are the issues to be resolved in a dissolution of marriage?
In all dissolution of marriage actions, the court will first determine whether the marriage is irretrievably broken. If it is, the court will give each party his/her nonmarital property, divide the marital property of the parties between them, and enter an order concerning maintenance (alimony) if either party has requested maintenance. In addition, if there are minor children and the court has proper authority to do so, the court will enter an order about their custody and support. All of these orders will be contained in a "Judgment and Decree of Dissolution" signed by the judge in the case. (Return to Top)What is the difference between marital and nonmarital property?
Marital property is any property acquired by either spouse since the date of the marriage, except property received by one spouse as a gift or inheritance or in exchange for that spouse's nonmarital property. Nonmarital property is any property that a spouse already owned prior to the marriage, or acquired after the marriage by gift or inheritance or in exchange for that spouse's nonmarital property.How does the judge determine how the property is to be divided?
A dissolution court begins by giving each party their own nonmarital assets, if any. The remaining marital assets are divided between the parties "in such proportions as the court deems just," after considering the five factors listed in Section 452.330, R.S.Mo. These factors include:What does the court do with assets that cannot be physically divided?
Most assets cannot be "divided" or broken into pieces. Instead, the court looks at the values of the marital assets, less any indebtedness against those assets, and then will usually give assets of comparable worth to each of the parties. So, for example, if the two major marital assets at the time of divorce are the marital home and a pension, a court may give the home to one spouse and the pension to the other. If this results in one party receiving too much value and the other receiving too little, the court can make adjustments by awarding other less valuable marital property to one spouse or the other. In addition, the court can require one spouse to pay the other a cash sum to "balance the equities" between the parties or to effect the proportional division the court has in mind. If there is no way for the court to effect a "just" division with the assets available, the court can also order that certain assets be liquidated (sold and turned into cash) and then divided between the parties in a certain way. For example, if the marital home is the most valuable asset in the marriage, the court can order it to be sold; if the minor children are to reside there with the spouse who has custody, the court may order that the home be held by that spouse until the children have grown up and that the property then be sold and the proceeds divided in a certain way at that time. (Return to Top)Will I lose my pension if I file for a dissolution?
Generally, you do not need to worry about "losing" your pension in a divorce case. However, the value that has been added to your pension during the marriage is considered marital property and is subject to division. If the court chooses, it can enter a special order that will require your pension's plan administrator to pay a portion of your pension to your former spouse. The portion to be paid to your spouse will not generally increase due to contributions you or your employer make to your pension after your divorce, however. (Return to Top)Can I expect to receive alimony from my ex-spouse in my divorce case?
Under certain circumstances, an award of maintenance (sometimes called "spousal support" or "alimony") may be made by the court. You may be eligible to receive maintenance, but only if (A) you lack sufficient property (including marital property) to provide for your reasonable needs AND (B) either (1) you are unable to support yourself through appropriate employment, or (2) you have custody of a child whose condition or circumstances are such that you should not be required to seek employment outside the home. If the court decides to award maintenance to you, it can order the maintenance to be paid indefinitely by your ex-spouse or it can give a termination date at which time the duty to pay maintenance would cease. In addition, the court can make the maintenance award modifiable or nonmodifiable. Modifiable maintenance is subject to being changed (increased, reduced or terminated) at a later time, when either you or your spouse file a motion to modify the amount because of a substantial change in circumstances since the maintenance award was made. Nonmodifiable maintenance that has a termination date cannot be changed. In any case, the duty to pay maintenance ends when either party dies or when the party receiving maintenance remarries. Generally, court-ordered maintenance is deductible from the income of the paying spouse and includable as income to the receiving spouse, on both federal and state income tax returns. Thus, if you receive maintenance, you will need to set aside sufficient amounts to pay the income taxes on the amount you receive. (Return to Top)How is the amount of maintenance determined?
The amount you receive and how long you receive it is based on numerous factors. Some of these factors include the length of the marriage, the conduct of the parties during the marriage, your age, your physical and emotional condition, the ability of your ex-spouse to pay, your earning capacity compared to the earning capacity of your ex-spouse, how much marital property and child support you receive, how much time you will need to acquire the education or training that will enable you to find appropriate employment, and the standard of living established during the marriage. There are no set formulas for determining the amount and duration of maintenance, and the court has broad discretion to order the amount it "deems just." You can read the maintenance statute at Section 452.335, R.S.Mo. (Return to Top)What about the children? How does the court decide who should have custody?
The guiding principle for the court is what will be "in the best interests of the child." There are many factors for the court to consider in determining the custody issue, including:What is "joint custody?"
Joint custody encompasses two concepts: joint legal custody and joint physical custody. "Joint legal custody" generally means joint decision-making responsibility regarding a child's upbringing, including where he goes to school, whether or when he needs medical attention, what religious beliefs he will be raised in, etc. "Joint physical custody" refers to significant amounts of time with both parents, so that the child has frequent and continuing contact with both parents. Missouri's custody statute encourages joint custody arrangements where appropriate. See Section 452.375, R.S.Mo.When is joint custody not an appropriate arrangement?
Joint custody is in the best interests of the child when both parents are able to set aside the differences which led to the divorce when dealing with each other and their child. Ex-spouses are human and often carry around a fair amount of hurt feelings or other emotional baggage following their separation. The best candidates for joint custody are those parents who genuinely desire to put their child's interests first, over and above old emotional battles with their ex-spouse or other unfinished business.How is "sole custody" different from joint custody?
When a court grants "sole custody" of a child to one parent or the other, that parent has the sole decision-making responsibility with respect to the child's upbringing, including his health, education and religious training. In addition, the child usually resides with that parent. The parent who is granted sole custody is often referred to as the "custodial parent" and the other parent is referred to as the "noncustodial parent." Like joint custody, the parents in a sole custody arrangement are obligated to exchange information with each other about the child's health, education and welfare. In addition, as part of its final orders in the Decree of Dissolution, the court can require the parties to confer with each other about child-rearing decisions, even though the custodial parent has the final say in such matters. (Return to Top)What rights does the noncustodial parent have?
At the time of the divorce, the court will usually establish a "visitation and temporary custody schedule" that assures frequent contact between the child and the noncustodial parent. This schedule typically provides for the child to visit and stay with the noncustodial parent at least one weeknight per week, every other weekend, alternating legal holidays and four to six weeks of the child's summer vacation. In addition, Missouri law prohibits the custodial parent from removing the child from the state for more than ninety (90) days without court approval or the prior written consent of the noncustodial parent. ( Section 452.375, R.S.Mo.)Will the noncustodial parent be required to pay child support?
Yes, in most cases, including cases in which joint custody has been awarded to the parents. The child support provisions of Missouri's dissolution law (Section 452.340, R.S.Mo.) list several factors to be used in determining the appropriate amount of child support to be paid. These factors include:How is the amount of child support determined?
Prior to 1989, many courts throughout Missouri used special charts that suggested appropriate child support amounts based on the number of children and the parents' resources. However, these charts were not the same in all circuits, so that parents who divorced in one county could wind up with a child support amount very different from what these same parents would receive in the courts of another county. To promote fairness and uniformity between the circuits, the Missouri legislature amended the child support statute in 1989 to require the Missouri Supreme Court to establish its own guidelines for establishing child support, which would apply throughout the state. These guidelines would yield a "presumed child support amount". The amount of child support suggested by the guidelines would apply, unless for some reason the amount suggested was "unjust or inappropriate" in a particular case.Can I stop paying child support if my ex-spouse denies my visitation rights after the divorce?
No! If your ex-spouse denies your visitation rights in violation of the decree, there are several remedies available to you. See, for example, "What rights does the noncustodial parent have?", above. However, if you stop paying child support, you will be considered in violation of the decree. Your wages could be subject to a garnishment, or your assets could be seized and sold to help pay your support obligation. You could also be held in contempt of court, which means that you could be subject to time in jail until you agree to pay your support obligation. There are other sanctions that could apply to you as well under both state and federal law if you stop paying support. You may seek permission of the court to reduce or eliminate your support obligation or to transfer custody of the children to you if your ex-spouse denies your visitation rights, but you should continue to pay your child support obligation until you have a different order from the court. See Section 452.340, R.S.Mo.. (Return to Top)Can I deny my ex-spouse visitation rights with the children if he/she is refusing to pay court-ordered child support after the divorce?
No! If your ex-spouse is refusing to pay court-ordered child support, there are several remedies available to you, including wage garnishment, seizure and sale of assets, and a motion for contempt to have your ex-spouse put in jail until he/she agrees to pay the support obligation. In addition, recent changes in Missouri law provide for the suspension of business, professional, and occupational licenses of people who are behind in their child support payments, and other remedies. However, if you deny your ex-spouse court-ordered visitation, you are in violation of the decree. You could be subject to a motion to modify by your ex-spouse, seeking a reduction in support or even a change in custody. Your ex-spouse could also ask the court to hold you in contempt, which could mean jail time for you until you agree to let your ex-spouse enjoy his visitation rights. In addition, you could be required to pay your ex-spouse's attorney fees and court costs in bringing you to court. You should continue to permit your ex-spouse to have his/her time with the children, even if he/she is not paying the child support. (Return to Top)Is the amount I pay for child support tax deductible?
No. Unlike maintenance, child support is not tax deductible. (Return to Top)Am I entitled to credit against my child support obligation for payments I make directly to my child/my child's school/my child's doctor/my child's day care provider, or for things I buy for my child such as clothes/school supplies/glasses?
Generally, no. Payments made directly to your child, your child's doctor, school or day care provider will not be credited to the amount of child support you owe. The same is true for items which you buy for your child, including clothing, food, books, supplies or other items. Any amount of child support which you fail to pay as required in your divorce decree, paternity decree or other support order will be considered an arrearage in your support obligation. The other parent will still be able to recover the amount you owe by garnishment or other process at any time within ten years after the date your payment was due.My child recently moved in with me. Must I still pay my ex-spouse child support for this child?
If you are the noncustodial parent, Missouri law provides that your child support obligation abates (in other words, you will be excused from paying child support) for each period of time in excess of thirty (30) days that your ex-spouse voluntarily gives physical custody of the child to you. This does not include time the child was scheduled to be with you, such as during your summer temporary custody period. The child must be residing with you with the consent of your ex-spouse, i.e., not against your ex-spouse's wishes. See Section 452.340, R.S.Mo. (Return to Top)How long does my child support obligation last?
Unless your decree or separation agreement provides otherwise, your support obligation lasts until the first of the following occurs:My child is 17 and has left high school prior to graduation. I believe my child is self-supporting. May I stop paying child support?
In any case where there may be a dispute between you and your ex-spouse about whether your child support obligation is over, you should seek an order from the court that specifically states that your child support obligation has ended.How long does a divorce case take to complete?
How long a case will last will vary from one situation to the next. The court cannot grant a dissolution until thirty (30) days following the original filing of the Petition for Dissolution. If the parties are in fair agreement about the terms of the divorce from the beginning, the case can be concluded rather quickly--as soon as sixty to ninety days from the date the petition is filed. If negotiation is required or if the parties cannot agree about major issues, the case will take longer. Contested dissolution cases can last several months before they are finally resolved by settlement or trial. (Return to Top)Do I have to wait until the divorce case ends before I can receive an order for custody, child support or maintenance?
No. If your situation requires it, your attorney can file a special motion during the divorce case to obtain certain relief prior to the conclusion of your case. The motion can request such relief as a temporary custody order, an order for child support, maintenance or both, for attorney fees and costs that will be needed in the case, and an order restraining the parties from disposing of marital assets. At the hearing on the motion, the court will issue such orders as it believes will help maintain the status quo or stabilize the situation between you and your spouse until the divorce is final. When deciding what relief should be granted, the court will consider the same factors and apply the same standards that it uses at the final divorce hearing (i.e., the "best interests of the child" standard and the factors listed in Section 452.375 for custody issues, the Form 14 calculations and the factors listed in Section 452.340 for determining child support, and so on). These temporary orders will automatically terminate at the time the final Judgment and Decree of Dissolution is granted. The statutes which authorizes these temporary orders are Section 452.315, R.S.Mo., Section 452.380, R.S.Mo., and Section 452.355, R.S.Mo. (Return to Top)Is there any way that the terms of my final divorce decree can be changed at a later date?
Some of the terms in your decree are subject to change in the future. If there are children involved, the court could enter an order at a later time to alter the custody arrangement in some way if the best interests of the children require it because of a "continuing and substantial change in circumstances" since the decree was entered. The amount of child support or modifiable maintenance is also subject to change. In order to make changes in child support or maintenance, a court must be satisfied that there has been a continuing and substantial change in circumstances that render the original child support or maintenance amounts unreasonable. (Where changes in the parties' incomes or other factors would result in a change in the amount of child support by 20% or more under Form 14, the law presumes that a continuing and substantial change in circumstances has occurred.) Either party may request changes in the custody, child support or maintenance provisions of the decree by filing a "motion to modify" with the court, and a copy of the motion must be personally served on the other party.This document was last revised: July 1, 1998