DIVORCE

When the parties to a divorce have either been married for a number of years or have small children that make it inappropriate for the custodial spouse to work outside of the home maintenance may be an issue in the case. The court has the power to award maintenance to a party after considering statutory factors including whether the spouse seeking maintenance 1) lacks sufficient property including marital property apportioned to him or her, to provide for his or her reasonable needs, and 2) is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. The court has discretion after considering certain factors to determine whether maintenance is appropriate in a particular case.

In Missouri, the courts have power in dissolution actions generally to grant sole custody, joint legal custody, or joint physical custody. The statutory factors for the court to consider prior to making custody award are: 1) the wishes of the child’s parents as to his or her custody; 2) the wishes of the child as to his or her custodian; 3) the interaction and interrelationship of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interest; 4) the child’s adjustment to his or her home, school, and community; 5) the mental and physical health of all individuals involved including any history of abuse of any individuals involved; 6) the needs of the child for a continued relationship with both parents: and the ability and willingness of the parents to actively perform their functions as mother and father for the needs of the child; 7) the intention of either parent to relocate his or her residence outside the state; and 8) which parent is more likely to allow the child frequent and meaningful contact with the other parent. The statutory factors in Missouri are not exclusive and must be considered along with any other relevant factors. Custody determinations in Missouri must be based on the welfare and best interest of the minor child. The judge has the ultimate decision-making authority as to an appropriate award of custody.

Missouri law provides that the court may order either or both parents owing a duty of support to the child of the marriage to pay for his or her support. The court in making an award of child support considers factors in determining the extent of a support obligation including the financial needs and resources of the child, the financial needs and resources of the parents, the standard of living the child would have enjoyed had the marriage not been dissolved, and the physical and emotional condition of the child and his or her educational needs. These factors however are not exclusive and the award of child support is within the discretion of the trial court.

Missouri child support awards are computed according to Missouri Supreme Court Rule 88.01 which requires that a calculation regarding the parties’ income and other factors be done to arrive at a presumed appropriate amount of child support. The calculated amount of child support under Supreme Court Rule 88.01 pursuant to a Form 14 calculation is ordinarily the support amount that will be awarded unless it can be shown that that amount is unjust or inappropriate to the circumstances.

The court in Missouri has discretion to award attorneys’ fees in a dissolution action. There are statutory factors that will be considered by the court. The award of attorneys’ fees is within the court’s discretion and is not mandatory.

There are instances where the parents of a child were never married to each other and the biological father’s rights need to be established as to that child. There are also instances where a child is born out of wedlock and, the mother needs to seek child support award and/or a custody and visitation plan for the minor child.

In Missouri, a couple can make agreements to treat their property and debts in a particular way pursuant to contract. This allows couples to plan for asset and debt distribution in the event of a future divorce. Prenuptial agreements may be particularly appropriate when one party has significantly more assets than the other party or in a situation where a second marriage is occurring late in life after both parties have significant property rights and/or children.

There are many instances where legal disputes in dissolution matters can be resolved without litigation.

Mediation in Missouri is the most common alternative dispute resolution method for Family Law cases. It usually involves the service of a mediator, generally a lawyer or a psychologist who is a neutral party who assists both sides in resolving their differences. The mediation may take place with the assistance of an attorney for each party attending or may be attended only by the clients without attorney assistance. In Missouri, mediation sessions are considered settlement negotiations and are not admissible in court if the parties are unsuccessful in resolving the issues and have to ultimately go to court for a trial. If mediation is successful, the parties will enter into a written settlement agreement. The court either by hearing, or in some cases by affidavit, will enter a final judgment based on the agreement and will approve the agreement. Mediation can be what is described as “front end” mediation meaning that the parties begin mediation before a dissolution case is filed or early in the dissolution process or “back end” mediation meaning that the parties have initiated dissolution action and may have exchanged some documents and information through the process of discovery prior to mediation sessions starting.

One of the major benefits to mediation is that the parties are allowed to resolve their issues and each have input into the decision making process. An additional benefit of mediation is that it is believed to be significantly less expensive than the contested court tried case.

No one expects to find themselves in a situation where they are served with a petition for divorce or where they are forced to file for divorce due to the actions of their spouse. It is extremely important that as soon as a divorce becomes a possibility you seek experienced legal advice regarding the many issues and decisions which will present themselves over this process. Generally, the earlier that these issues and concerns are addressed the better.

In most complex cases where parties own a home or business or have children there are many issues to be decided, for example: 1) temporary custody and child support and maintenance arrangements, 2) disposition or sale of real estate, 3) payment of maintenance, 4) allocation of debts to each party, 5) medical insurance coverage, 6) filing federal and state taxes jointly or separately, 7) orthodontic expenses, 8) medical insurance coverage for the children, 9) payment of uninsured medical expenses for children, 10) private or public school expenses, 11) college expenses, 12) income tax deductions or exemptions for children, 13) visitation schedule, 14) transportation for visitation, 15) sale or transfer of business assets, 16) payment of taxes on business, 17) payment for children’s camps and activities, 18) mediation, 19) payment for mediation, 20) payment of court costs, 21) real estate appraisals, 22) personal property appraisals, and 23) payment of attorneys fees. There are many other issues in a given case.

We suggest a consultation as early in the process as possible so that the client may obtain an outline of the legal issues that exist in their cases and an education session regarding the law in this state, as well as to chart their course of action in these difficult cases.