Overview of Missouri Divorce Law

Overview of Missouri Divorce Law

This overview of Missouri divorce law is a general guideline of information relating to family law cases in the state of Missouri. This information may not apply to all cases, as each legal case is unique.

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JURISDICTION and GROUNDS FOR DIVORCE:

In most jurisdictions, under Missouri divorce law, the legal mechanism for ending a marriage is called "divorce". In Missouri, it is called "dissolution", because the "bonds of matrimony" are dissolved. Missouri is a "no-fault" state. If one party testifies that "the marriage is irretrievably broken" and "there is no likelihood that the marriage can be preserved", the parties get their dissolution and the marriage is ended.

For a divorce, it is necessary to show that there remains no reasonable likelihood that the marriage can be preserved and that the marriage is therefore irretrievably broken. For a legal separation, one party must be able to show that there does remain a reasonable likelihood that the marriage can be preserved and that the marriage is therefore not irretrievably broken.

RESIDENCY and VENUE:

Missouri divorce law mandates that you must be a Missouri resident for at least 90 days prior to filing a petition for dissolution of marriage. Proper venue (the county where the petition should be filed) can be in the county where either of the parties resides.

MODIFICATION:

Generally, you must file a motion to modify (child custody, visitation or child support) in the same county and with the same court that previously awarded a judgment or decree of dissolution of marriage or legal separation.

PATERNITY:

An action to establish parentage may be filed in the county in which the child resides, the mother resides, or the alleged father resides or is found. Paternity can be established in a couple of ways. The easiest way is when the parents agree on who is the father and file the appropriate documents. Some cases are a little more complicated and require the use of DNA testing. Missouri divorce law states that before an unwed mother can get a judgment to authorize financial support from the father of a child, paternity needs to be established. Establishing paternity allows an unwed father to obtain the right to be involved in his child's life, including the rights of custody and/or visitation.

PETITION and SERVICE THEREOF (requirements and fees):

Family law actions are commenced when a petition is filed by a party. Under Missouri divorce law, the petition must contain certain statutory language, and must also be "verified" (notarized by petitioner, who also swears to the truth of all statements contained in the petition). A court filing fee must be paid at the time of filing the petition, the amount of which depends on the specific county, but generally are in the range of $150 or so, plus or minus $50). A summons and copy of the petition must then be served on the opposing party according to Missouri divorce law, requiring them to file a responsive pleading with a certain period of time, usually 30 days from the date of service. Service of the summons and petition can be waived by agreement of the parties.

CHILD CUSTODY:

When a petition is filed for dissolution of marriage, legal separation or paternity, the children, if any, are immediately subject to the jurisdiction of the court. Neither party may remove any child from the jurisdiction of the court or from any parent with whom any child has primarily resided for the 60 days immediately preceding the filing of the petition, until permitted by the court under Missouri divorce law. The mere fact that one parent has actual possession of a child at the time of filing does not create a preference in favor of that parent regarding custody. The court awards custody and visitation based on the best interest of the children.

Missouri courts favor awarding the parties frequent, continuing and meaningful contact with the children, absent extraordinary circumstances. In Missouri, there are two types of custody - legal custody and physical custody, both of which can be either joint custody or sole custody. Missouri court’s tend to favor joint legal custody . "Joint legal custody" means both parents have equal rights and responsibilities to the children with regard to major decisions concerning the children, such as education, medical decisions, religious training.

CHILD VISITATION:

The non-residential parent in any custodial situation is usually entitled to visitation or parenting time with the children, which typically consists of alternate weekends, alternate holidays and an appropriate period of time in the summer, but which is adjusted by the court as deemed appropriate for the circumstances and in the best interest of the children.

According to Missouri divorce law, a parenting plan must be filed (joint parenting plan, if the parties can agree on terms of custody and visitation) in all cases involving children. Section 452.310.7. In most counties, both parties will also be required to take a parenting class and obtain a certificate of completion to be filed with the court. A parenting class is an approved class, usually lasting a couple of hours, which gives tips on how to be a good parent and not use the children as pawns in matters involving you and the other parent. Usually you cannot sign up for the parenting class until the petition has been filed and a case number assigned by the clerk. Depending on the county, in a contested matter you may also have to attend mediation, to help resolve disputed issues, and it may cost around $600 or more for the fee charged by the mediator. Section 452.372 RSMo. Each county maintains a list of approved mediators.

CHILD SUPPORT:

In calculating the amount of child support which should be paid by the non-residential parent, the court looks at a presumed child support amount, determined by a formula promulgated by the Missouri Supreme Court in accordance with the statute in Missouri divorce law, which takes into account the gross monthly income of each party, plus various expenses such as daycare, health insurance, and other appropriate costs or credits.

DISCOVERY:

Missouri divorce law stipulates that during the middle of the case, the parties may exchange information concerning the issues involved in the case (known as “discovery”). This may include submitting or answering written questions to each other, or requesting the production of documents, taking the deposition of each other or of other individuals. If a party refuses to provide information during discovery, he or she may be sanctioned by the court.

PROPERTY DIVISION:

Property acquired during the marriage is presumed to be marital property and subject to division by the court in an equitable manner (not necessarily equally). If the parties agree to a division of the marital property and allocation of debts between them, the court will often approve the agreement if it is deemed fair and equitable. Property division is not 50/50 in Missouri by statute, but courts will generally make a 50/50 division unless there are compelling reasons not to do that. Separate property, owned by a party prior to the marriage or obtained as a result of inheritance or gift from outside of the marriage, will be set aside to the party who brought it into the marriage and will not be divided by the court. The court has the authority to determine the character of property (whether it is marital or separate property).

TRIAL:

Local court rules dictate exactly how you get a court date. Many local rules are online, and there is a master book published by West publishing that has all the local rules in it. A good website for learning more about Missouri divorce law is www.mobar.org For those counties which allow an uncontested matter to be handled by affidavit, there may be not trial or court date. But otherwise, a trial date needs to be set. At trial, the court will decide all contested issues (upon which the parties cannot agree). At trial, either party may call witnesses and introduce exhibits to support his or her position. When a judgment or decree has been signed by the judge and filed, the case is over, subject to each party’s right to appeal. The judgment resolves the issues in the particular case, such as dissolving the marriage, custody and visitation, child support, division of marital property and allocation of debts between the parties; or paternity, name change or other matters depending on the type of case.

The entry of an order dissolving the marriage is final when it is entered, subject to the right to appeal, but if the appeal does not challenge the finding that the marriage is "irretrievably broken", the parties are "divorced" and free to behave as an single person, including remarrying. Section 452.360 RSMo.

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