How does custody get decided as between a parent and a third party?
Third parties may be granted custody of minor children, but this generally occurs only in extreme cases where the parents have been determined to be unfit or unable to be granted custody (i.e. in jail, etc).
In Missouri, "the best interest of the child" is the determining factor in deciding which party is granted custody of minor children. Courts have several factors to consider in making this determination, including the following:
- the wishes of the parties
- the wishes of the child(ren)
- the child's relationship and interaction with others (the parties, siblings, others)
- the child's adjustment to his/her home, community, school, etc.
- mental and physical health of the parties
- any history of abuse
- felony sexual offense of a party (Court cannot grant custody to that party)
- the child's need for a continuing relationship with parents
- the intent of either party to relocate out of Missouri
- which parent is more likely to allow the child visitation with the other parent
Notably absent from this list is the misconduct of either party. Extramarital affairs and other misconduct can be considered in awarding maintenance (alimony) or in the division of marital property, but not in the custody of minor children or in determining child support. This is because the court is not trying to see what is fair to the parties, but what is fair to their minor children, or "in their best interest."
How does custody get decided as between parents?
Again, in Missouri, the "best interests of the child" prevails. See the question above for a list of considerations.
What is the terminology for custody?
Legal Custody - generally means which party is granted 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. Will generally be granted to a party as "Sole Legal Custody" or to both parties as "Joint Legal Custody"
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. Will generally be granted to a party as "Sole Physical Custody" or to both parties as "Joint Physical Custody".
Joint Custody - Physical or Legal Custody granted to both parties.
Sole Custody - Physical or Legal Custody granted to one party.
Custodial Parent - When a court grants sole physical or legal custody of a child to one parent or the other. This parent has the sole decision making ability 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 "non-custodial parent."
Non-Custodial Parent - has not been granted sole legal or physical custody of the minor child. Doesn't have decision making authority in matters of the child's upbringing (religion, schooling, health, etc.). Usually receives visitation determined by a parenting plan. A goal of the Court is to provide the child(ren) "meaningful contact" with both parents.
Is there a presumption in favor of not changing custody arrangements?
Missouri requires a "continuing and substantial" change in circumstances to modify a previously granted dissolution of divorce. The judge has quite a bit of leeway in what type of evidence is needed, but a person requesting a modification of a custody order must plead these substantial changes and outline what they are in his or her modification petition. A party moving out of state, in jail, etc. are some examples.
What effect does the misconduct of one of the parents have on custody?
As discussed above, misconduct of the parties has no bearing on who will be granted custody of the minor children. The courts only look to the "best interest" of the child(ren).
What effect does the mental health of one of the parents have on custody?
The judge may take this into consideration in determining the best interests of the child(ren) as discussed above.
What effect does the preference of the child have on custody?
The judge may take this into consideration in determining the best interests of the child(ren) as discussed above.
How does visitation get set?
Courts will attempt to create a "meaningful" and "substantial" contact with the non-custodial parent, as discussed above. Each party will submit to the Court a "Parenting Plan," outlining proposed visitation for the other party. In an uncontested divorce proceeding, the Court will generally approve what the parties have agreed to. The judge is free to set visitation he or she feels is in the child's best interest, using either party's Proposed Parenting Plan or creating his own.
Is there such a thing as "standard visitation"? If so, what is it?
Typically, one night per week, every other weekend, alternating holidays and four to six weeks in the summer are considered "standard," but again, the Court is free to set visitation in the "best interest" of the child(ren).
Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?
Out of state location of a parent is one thing considered in determining custody, but no such standard visitation is required.
What rules govern cases where the custodial parent wants to move away with the children?
Typically notice to the court and the other party ninety days prior to the proposed move is required. Out of state moves may be considered a "substantial and continuing" change of circumstance to obtain a modification hearing.
What visitation rights do grandparents have, if any?
May be granted if in the child's best interests, to continue a relationship already developed, etc. Not a guaranteed right, but grandparent may file for such visitation.
Division of Property and Debts
What's the general rule of property division (equitable distribution, community property, or legal title)?
Courts grant equitable distribution in Missouri. Unlike child custody determinations, misconduct of a party (infidelity, illegal activity, etc.) can be a factor in determining property settlement. Property is divided into two broad categories, marital and separate. Separate property, in general, is property a party owns prior to marriage, or obtained during marriage by gift or inheritance, or by the agreement of the parties. Marital property is all else. There is a presumption of marital property if the property is acquired during marriage, regardless of whose name is on the title. Courts can divide marital property in any way deemed by the Court to be "equitable." This generally can be appealed only if the division is NOT equitable, a very difficult notion to prove. As a result, property division is rarely overturned.
If a party can "trace" separate property, it will likely remain separate, and thus not divisible by the Court. This means, for example, that if a party sells a home acquired before marriage (separate) and purchase stock with the proceeds of that sale, the stock is considered separate property.
What effect does the conduct of the parties have on property division?
As discussed above, misconduct of a party can be a factor in determining an "equitable" distribution of the marital property. This actually amounts to the Court assigning blame to a party through giving more of the marital property to the other spouse.
What effect does the length of the marriage have on property division?
Not a real factor, except in analyzing the "tracing" of separate property and the standard of living the parties have become accustomed to..
Is there such a thing as separate property? What does it take?
Discussed above.
Any special rules for the marital home?
No.
How do retirement plans get divided?
Are divisible if not separate property, with fairly specific rules of division. Tracing rules apply to retirement plans as well. If any part of the plan was earned during marriage, it is marital property and thus divisible. Calculation of the amount attributable to marital property or separate property depends on whether it is a defined benefit plan or a defined contribution plan. Defined benefit plans are usually not paid out until the person retires, while defined contribution plans are usually contributed to (either by the party himself, the party's employer or both) on an annual or other regular basis.
Child Support
How does child support get figured?
In Missouri, the party's may agree on the amount of child support one party or the other will pay. Such an agreement is a recommendation to the Court, which may approve or disapprove, again based on the best interest of the minor child(ren). Also, there is a presumed child support amount calculated either by the parties or the judge in each case, which is again a recommendation to the Court only. The Court decides what is fair, taking into account circumstances, ability to pay, lifestyle of the children, etc.
How do you change child support?
As in any modification of a dissolution order in Missouri, there must be a "continued and substantial" change in circumstances to even apply for a change in support. Certain time periods may be required based on the county of dissolution as well. Generally, if the change in presumed child support is 20% or greater, a hearing will be granted. The Court will again determine the best interest of the child(ren) as it relates to child support.
Does child support get deducted from the payor's paycheck? How?
Generally, yes. This is not absolutely required, but the vast majority are deducted by court order to the payor's employer and paid by the court to the receiving party. Generally, the parties may agree not to withhold support.
When will the court allow a deviation from the guidelines?When it determines deviation to be "in the best interest" of the child(ren) as discussed above.
Alimony or Spousal Support
When does alimony get paid?
Spousal support is called "maintenance" in Missouri. Generally if the earning capacity of a party is significantly less than the other, maintenance can be granted. There is a presumption against alimony in Missouri. This means that a party must show a real need for alimony. Typically, a stay at home mom, who gave up educational opportunity to raise children is a good candidate for maintenance. Even then, it is no small task to convince the court of the need for maintenance. If it is approved, it generally may not be ordered for more than a period necessary to get the party receiving the maintenance on his or her feet. It can be designated as non-modifiable or modifiable.
How does the court decide how much?
The Court has wide latitude in determining the amount, if any, ordered. It can be ordered "in gross" (meaning a lump sum) or in installments (monthly). It should not be granted in a stair step (reducing payments over time) payment plan.
What does it take to change alimony?
Generally will not be changed, once ordered. As it is generally considered a temporary measure, great changes in circumstances do not affect it. Also, if it has been declared non-modifiable in the original decree, it will not be changed, generally.
When does alimony stop?
When ordered by the Court, when the party receiving the maintenance remarries, by the terms of the decree or separation agreement of the parties.
Mediation
Is mediation mandatory? When?
Not mandatory, but encouraged in cases where the parties cannot come to agreement on terms of dissolution. One side may request mediation, which the Court is not required to order. Mediation is voluntary in Missouri.
Who pays for mediation?
Generally by agreement of the parties.
What are the requirements for who can act as mediator?
Generally, the bar association or county courts will publish list of approved mediators for divorce proceedings.
Pro Se Divorce
How hard is it to file my own divorce?
If you have the right forms, not difficult at all, particularly in those divorce situations with little or no property and no children.
What are the papers that need to be filed?
Petition, Property, Income and Expense Statement. If minor children are involved, a parenting plan and Missouri Form 14. Draft decree.
What's the filing fee for a divorce?
Varies by county from $100 to $200 generally. Sheriff's service fee ranges from $20 to $50.
Miscellaneous
What are the requirements for residence?
90 days in Missouri for both parties.
What are the grounds for divorce?
"Irretrievable" marriage with no chance of reconciliation. In other words, no real reason need be given.
Does the state recognize common law marriage? If so, what does it take to be married at common law?
Missouri does not recognize common law marriage.
How does annulment work?
Annulment of marriage cases are rare in Missouri, but the procedure is still available if the legal grounds are present. The legal theory underlying annulment is that the marriage was never valid to begin with and therefore a court will declare an annulment upon being presented with proof of the invalidity of the marriage.
Following are the grounds for annulment recognized by Missouri law:
- Duress.
- Mental illness, insanity and retardation.
- Lack of physical assent to the marriage.
- Impotency.
- Age.
- Same-sex marriages.
- Incestuous marriage.
- Bigamous marriages.
- Common-law marriages.
- Fraud.
Is there such a thing as legal separation? If so, how does it work?
Yes. Usually by the agreement of the parties with a filing in the local court.
Do parents of minor children have to go through parent training? If so, how much does it cost, and how long does it take?
Most counties have a required course named "Children First" or the equivalent. It is required by the court in most counties, and typically costs $20 to $50 and is three to four hours long. The certificate is filed with the court.
Hanrahan Trapp, PC
4732 Highway 54, Suite A
PO Box 1680
Osage Beach, Missouri 65065
Phone: (573) 348-2021
Fax: (573) 348-2056