The Christiansen Law Firm, LLC handles a variety of family law issues including:
The following is an overview of some
of the issues common to divorce cases in the state of Missouri. It does not include a complete discussion of the law. This
information applies only to Missouri, not to any other state and may not apply to any one specific case, as every legal matter
is different.
JURISDICTION: To file for and obtain a divorce in Missouri,
a person must be a resident of Missouri for at least 90 days immediately preceding the filing of the divorce petition. Jurisdiction
over the other party must be obtained in accordance with the rules of the supreme court and applicable local court rules.
The venue for the divorce action is in the county where either of the parties resides.
NO FAULT: Missouri does not require grounds (fault) to obtain a divorce. All that is necessary is to show
that there remains no reasonable likelihood that the marriage can be preserved and that the marriage is therefore irretrievably
broken. Where the fault of a party (such as infidelity, abuse, or substance abuse problems) does lead to the breakdown of
a marriage, a court may consider such conduct if it directly affects the parties' finances.
THE PETITION: A divorce is commenced when a petition is filed by a party. The petition
must contain certain statutory language and contain information about any children of the marriage. The petition must also
be "verified" by the client, which means he or she must sign it before a notary public swearing to the truth of
all statements contained therein. A court filing fee must be paid at the time of filing the petition.
Upon
the filing of the petition, each child is immediately subject to the jurisdiction of the court. Until permitted by 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. 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.
SERVICE OF PROCESS: In order for the respondent in a divorce case to be brought within
the jurisdiction of the circuit courts of Missouri, that person must be served with copies of the petition, financial statements,
a parenting plan (if children are involved), and a summons requiring them to file a responsive pleading within a certain time
period. The service cannot be made by one party serving the other. The respondent may voluntarily consent to the jurisdiction
of the court and waive service of process. This is usually accomplished by the respondent signing a form (usually prepared
by an attorney) that is filed with the court.
TEMPORARY ORDERS:
After a petition has been filed and served on the other party, a party may obtain, under certain circumstances, temporary
orders from the court. The temporary orders typically will grant one party the temporary use of a vehicle and possession of
the marital home during the pendency of the divorce proceeding. Temporary orders may grant one party residential custody of
the children and order the other party to pay temporary child support and/or temporary maintenance. The temporary orders may
also restrain the parties from disposing of assets or from threatening, abusing or harassing the other party or coming near
them while the case is pending.
DISCOVERY: The parties will
often engage in "discovery". Discovery is a process in which the two parties exchange information concerning the
issues involved in the divorce. The parties may submit written questions to each other, request the production of documents,
and take each others' deposition. Some cases require intensive discovery in which other witnesses are deposed, appraisals
of property are obtained, homes and safe deposit boxes are inventoried, and records are subpoenaed. If a party refuses to
provide information during discovery, he or she may be sanctioned by the court.
PROPERTY DIVISION: Generally, all property acquired during the marriage is marital property and subject
to division by the court. Separate property is property owned by a party prior to the marriage or obtained as a result of
inheritance or gift from outside of the marriage. Separate property usually will be set aside to the party who brought it
into the marriage and will not be divided by the court. However, appreciation on that separate property which occurred during
the course of the marriage may be divided. Courts will try to make an equitable division of the property and debt of the parties
to a divorce action. However, this does not necessarily mean assets will be divided equally. The fact that one party earned
the majority of the assets or incurred the majority of the debt during the marriage does not necessarily affect property division.
PROPERTY SETTLEMENT AGREEMENTS: If the parties can agree as
to how to resolve the issues concerned in their divorce they can enter into a separation and property settlement agreement.
The agreement is a written document embodying the parties' understanding as to all issues. The agreement is signed by
both parties and reviewed by the court. The court will approve it and incorporate the terms of the agreement into its decree
of divorce if it is fair, just and equitable.
TRIAL: Any issues
which the parties cannot agree on will be tried to and decided by the court. Each party may call witnesses and introduce exhibits
to support his or her position. The court will decide the dispute and make certain orders which will be contained in the decree
of divorce.
DECREE OF DIVORCE: The decree of divorce is the official
court document which dissolves the marriage of the parties. The decree will contain the judge's orders concerning property
division, child custody and visitation, child support, maintenance, and other issues. Once the decree is filed with the clerk
of the court the divorce is final, although the court retains jurisdiction over issues concerning the children and child support
and issues concerning spousal maintenance under certain circumstances.
CHILD
CUSTODY: The courts in Missouri must make decisions concerning children based on what is in the best interests of
the children. "Joint legal and joint physical custody" is the preferred custodial arrangement where both parents
are found to be fit and proper persons to care for the children, and certain other criteria are met. "Joint legal custody"
means both parents have equal rights and responsibilities to the children and each should consult with the other concerning
major decisions concerning the children, i.e. education, medical decisions, religious training. "Joint physical custody"
does not necessarily mean that the children will spend an equal amount of time at each parent's home. It means that the
children will have frequent, continuing and meaningful contact with both parties. The residence of one of the parents will
be designated as the address of the children for mailing and educational purposes. The award of joint physical custody does
not eliminate the need to pay child support.
CHILD VISITATION: The nonresidential parent in any
custodial situation may be entitled to visitation with the children. Most courts in Missouri have guidelines which they follow
concerning visitation. Typically, in the joint physical custody situation, visitation will consist of every other weekend
from Friday evening until Sunday evening, one evening per week (not necessarily overnight), every other major holiday, and
extended vacation visitation in the summer time. Of course, visitation may be different for each family situation and will
greatly depend on the age of the child, any special needs of the child, and the distance between the parties homes. Again,
the courts will usually look at what is in the best interest of the children when determining what visitation to order.
CHILD SUPPORT: Child support is determined by a formula promulgated
by the Missouri Supreme Court in accordance with the statute. The gross monthly income of each party is used to determine
child support. Other factors include the cost of daycare, the cost of health insurance, and the actual time the children spend
with the nonresidential parent. There are other factors that can be considered where merited by the circumstances. Those amounts
will be plugged into the formula and child support calculated. Child support is subject to the continuing jurisdiction of
the court and may be raised or lowered when there is a substantial and continuing change in circumstances.
MAINTENANCE: Maintenance is the term used in Missouri for spousal support paid after the
marriage by one party to the other. This support is sometimes known as "alimony" outside of Missouri. In determining
whether one party should pay maintenance to the other, courts will usually look at the present and prospective earning capacities
of the parties, the length of the marriage, the parties' needs, the ages of the parties, the parties' overall financial
situation, and the marital property received by the party requesting maintenance, among other considerations.
