FamilyLaw-MO - Frequently Asked Questions
Q: How long does it take to get a divorce in Missouri?
A: Actually, in Missouri the Court issues a "Judgment and Decree of Dissolution of Marriage," rather than a "divorce" decree, but often the terms are used interchangeably.
How long it takes to get a divorce in Missouri depends a lot on whether there are disagreements between the spouses regarding how the issues associated with the divorce are to be resolved. If there are no disputes, or if the other spouse chooses not to participate in the proceedings, a divorce can be granted in as little as 30-45 days; however, if there are disagreements which will require a hearing before a Judge, the process may take several months or more. In appropriate cases, there are several "alternative dispute resolution" possibilities available to parties in an attempt to avoid the need for a truly contested hearing, and your attorney can discuss with you what those alternatives are and whether, in your case, they might be of benefit to you.
Q: What is a "Legal Separation" and how is it different from a divorce?
A: A Legal Separation is very much the same as a divorce, except that since the spouses are still legally married to one another, neither is free to re-marry. All issues associated with a divorce – such as custody and support of children, division of assets and liabilities, spousal support issues and so forth – are all addressed in a proceeding for Legal Separation just like in a divorce proceeding, and once a Judgment and Decree of Legal Separation has been entered, a spouse can function just like an unmarried person….except, of course, that a legally separated spouse is not free to re-marry.
Q: How does the Court resolve child custody and visitation issues?
A: If the parents cannot agree on the custodial arrangements of a child, the Court must determine those arrangements. The Judge will obviously try to provide a custodial plan which will provide for the best interests of the child, given that Mom and Dad will not be living together under the same roof, but which will still if possible provide both parents frequent and meaningful time with their child. There are a variety of factors the Court will consider in reaching this decision including the age of the child, the child's wishes, the child's home life, and the behavior of the parents toward each other as well as toward the child. By statute, no preference is given in awarding principal residential custody of a child based upon the gender of the parent. Your attorney can discuss at length with you what factors are most relevant to your particular situation.
Q: What is a "Guardian Ad Litem" and what does a Guardian Ad Litem do?
A: A Guardian Ad Litem is a person, typically an attorney who practices quite a bit in the field of family law, who is appointed by the Court in appropriate cases to serve as an independent Advocate for a minor child.
The Court is always free to appoint a Guardian Ad Litem whenever the Court believes such an independent "voice" would be of benefit in determining custodial arrangements; however, the Court is required to appoint a Guardian Ad Litem whenever one of the parents claims the other has abused or neglected the child – regardless of how valid those claims later turn out to be.
Generally the expenses associated with the appointment of a Guardian Ad Litem are shared between the parents, but the Court is not required to have those costs shared equally between the parents.
Q: I was never married to the other parent of my child. How does the Court decide custody if we aren't living together?
A: Once paternity of a child is confirmed by the Court, issues of custody, visitation and financial support of a child born outside of a marriage are resolved following basically the same "rules of the road" the Court would follow in determining the custodial, visitation, and support arrangements of a child born during a marriage.
Q: What does "joint custody" mean?
A: Actually, the term "joint custody" means different things.
"Joint legal custody" simply means that both parents have a major voice in making decisions regarding the child, and that each can independently discuss issues relating to the child with teachers, doctors, and others without first obtaining the permission of the other parent.
"Joint physical custody" means that it is expected that the child will spend significant quality time with each parent after the divorce. Although a custodial plan whereby the child spends more-or-less equal time with each parent is possible, many parents share "joint physical custody" of their children even though the children live principally with one parent or the other.
Q: How is child support determined?
A: For many years now Missouri has used a formula to determine appropriate child support based largely upon the relative income potential of the parents. There are, however, many other factors the Court considers, such as the cost of day care, the cost of a child's health insurance premium, any "special needs" the child may have, and the amount of time it is expected the child will spend in the physical custody of each parent. Even so, the calculations are not "chiseled in stone" and the Court may, in appropriate cases, set child support higher or lower than the formula would otherwise suggest.
The amount of support the Court may order to be paid can also be changed later on, upon the request of a parent and a showing of significant changes either in parental income or in the amount of monthly expenses associated with the child.
While the Court's orders regarding custody, visitation and support of a child will remain in effect unless or until the Court is persuaded a change in any of those orders is necessary, the ability to seek a change in the Court's orders is always available to a parent if they believe such a change, or "modification," is needed.
Q: How is property divided by the Court?
A: Missouri is a "marital property" State, as opposed to a "community property" State such as California or Texas. In Missouri the Court will, if possible, continue to distinguish between that property which was acquired during the marriage from that which was either acquired by a spouse before the marriage or was acquired during the marriage from a "non-marital" source such as through inheritance. It is presumed that all property – be it either real estate or other personal property – acquired during the marriage is "marital" in nature, though, and the spouse that believes otherwise bears the burden of convincing the Court that the property was obtained through a "non-marital source."
Furthermore, while it is presumed that all "marital property" was acquired through the joint and equal efforts of the spouses, regardless of which spouse has the larger income or who actually made the purchase, a Missouri Judge is not required to divide such property equally. Our statutes only instruct that in a disputed case the Judge is to divide all marital property in a "fair and equitable manner," and therefore marital property is not necessarily required to be divided "equally."
Q: What is "maintenance," how does the Court decide whether maintenance is to be paid, and if so, how much maintenance is ordered paid?
A: Nowadays the Courts use the term "maintenance" rather than "alimony" when they talk about spousal support to be paid after a divorce.
There is no special "formula" the Court uses, like it does in determining child support, and there are quite a number of factors the Court will consider if, under all of the circumstances, the Judge feels a former spouse should receive some sort of on-going financial assistance after a divorce. Each case is different, though, and you should discuss this issue at length with your attorney.
Q: Can I get my spouse to pay my attorney fees?
A: Generally each party is expected to assume their own litigation expenses in a divorce, but the Court does have the authority to assess all or a portion of a spouse's litigation expenses against the other spouse. Typically the Court looks at the overall financial resources of each party and often their behavior either during the marriage or following separation in deciding whether an award of attorney fees or other litigation expenses would be appropriate.