William E. Albrecht

Divorce: Frequently Asked Questions

Most clients have a number of questions about their divorce. We have compiled the most frequently asked questions and have given general answers to them as a way to help you fully understand some of the more common issue in a dissolution of marriage.

1. What are the grounds for divorce in Missouri?
2. What is a dissolution?
3. How long must I be a resident of Missouri to get a dissolution?
4. Is there a waiting period to get the dissolution?
5. How does my spouse learn about the dissolution?
6. Can we both use one lawyer?
7. What should I do about credit cards?
8. What does "uncontested" dissolution mean?
9. How do I find out if my spouse has hidden money?
10. What about a court date?
11. When is the dissolution final?
12. What about dating while the divorce is pending?
13. What is Maintenance?
14. How do we divide the property?
15. What happens to joint debts?
16. Can my spouse discharge child support in bankruptcy?
17. What if my spouse and I agree upon how we want to divide our assets?
18. What is a Marital Settlement and Separation Agreement?
19. What is a Parenting Plan?
20. What should I tell the children about the divorce?
21. Should we get counseling?
22. Will I have to go to Parenting classes and participate in Mediation?
23. What is meant by joint custody?
24. How do we split the time with the children?
25. Who pays child support?

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1. What are the grounds for divorce in Missouri?
Missouri has limited "no fault" divorce, making it unnecessary to prove cruelty, adultery, etc, to obtain a dissolution. The usual basis for dissolution is irreconcilable differences with your spouse. In a few cases it may be appropriate to allege other grounds.

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2. What is a dissolution?
Missouri uses the term "dissolution of marriage" instead of "divorce".

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3. How long must I be a resident of Missouri to get a dissolution?
You or your spouse must have been a resident of Missouri for the 90 days immediately preceding filing the petition for a dissolution.

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4. Is there a waiting period to get the dissolution?
No dissolution can be granted for a minimum of at least 30 days or more after a Petition for Dissolution has been filed. Generally, however, you must wait 30 days from the date the other spouse officially receives a copy of the petition.

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5. How does my spouse learn about the dissolution?
After the petition is filed, the spouse must receive proper notification. There are several ways to accomplish this. A process server can deliver a copy of the petition to the spouse. This is called "Service" on the Spouse. Another way is to have the spouse sign a document called an Entry of Appearance and Waiver. Again this is by means of a process server. An Entry of Appearance acknowledges receipt of the Petition and eliminates the requirement of having someone officially hand the papers to the spouse.

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6. Can we both use one lawyer?
A lawyer cannot ethically represent competing interests. A dissolution necessarily involves some matters which benefit one spouse and are a detriment to the other. Therefore, an attorney can only represent one person in a dissolution.

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7. What should I do about credit cards?
If you hold joint credit cards, or the account is held in your name and your spouse is entitled to use the account, then you are still liable for all charges made. If you believe that this will be a problem and that your spouse may run up a large balance on such an account, then you should call us to discuss this situation, and we will determine whether or not you should contact all credit card companies to close the account or limit the persons entitled to use the account.

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8. What does "uncontested" dissolution mean?
An "uncontested" dissolution is when both spouses agree to all aspects of the dissolution: custody, visitation, support, division of property, debt payment and attorney fees. If one spouse disputes any of these matters and an agreement is not eventually reached, a trial will be necessary.

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9. How do I find out if my spouse has hidden money?
The law provides numerous tools to locate assets; however, finding hidden money can be a daunting task. Depositions, Interrogatories and Production of Documents requests are the most common tools used to discover assets. The Court requires submission of complete financial disclosure regarding the assets and debts of the marriage so that the judge can make an informed decision regarding the division of these assets and debts, if the spouses cannot agree on how to divide them. Detailed information is also necessary in order that the property can be specifically and accurately described in the agreement.

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10. What about a court date?
In the "typical case", your case will be heard in the Circuit Court 60 to 90 days after it is filed. The absolute minimum is 31 days. We will do everything possible to have your case heard as soon as possible. You do not need character witnesses. Appropriate dress should always be worn when you are appearing in court. We will advise you well in advance of court dates and locations. You must not be late when going to court!

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11. When is the dissolution final?
A dissolution is final on the date the Judgment of Dissolution is signed by the Judge.

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12. What about dating while the divorce is pending?
You are married until your marriage is dissolved by the judge. You may seriously jeopardize your case by even "seeing" another man or woman. We recommend you refrain from dating.

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13. What is Maintenance?
Maintenance is money paid by a spouse to a former spouse to assist in the support of the ex-spouse. This was formerly called "alimony". Maintenance can be "contractual" that is in an amount and for a length of time agreed to by you and your spouse. The maintenance can also be ordered by the Judge without a spouse's agreement. Generally, maintenance is taxable to the spouse who receives it and tax deductible by the paying spouse.

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14. How do we divide the property?
There is no fixed way to determine how to divide the property. Missouri has two major categories of property in a dissolution context: marital and non-marital. These types of property are established by statute and interpreted and analyzed by various appellate court decisions.
Nonmarital property is that property which is:

1. Acquired by gift, bequest, devise or descent;
2. Acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;
3. Acquired by a spouse after a decree of legal separation;
4. Excluded by valid agreement of the parties; and
5. The increase in the value of property acquired prior to the marriage or pursuant to 1 through 4 above unless marital assets including labor have contributed to such increases and then only to the extent of such contributions. (Section 452.330.2 RSMo. 1988)

Marital property is all property acquired during the marriage except by the means described as nonmarital above. In Missouri the increase in value of non-marital property is considered nonmarital; however, income such as interest or dividends earned on non marital property is marital. The Court cannot award nonmarital property to the other spouse.
The Court divides the marital property in a manner that is just and equitable based on the following:

1. The economic circumstances of each spouse at the time the division of property becomes effective including the desirability of awarding the family home or the right to live in it for reasonable periods to the spouse having custody of the children;
2. The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
3. The value of the nonmarital property of each spouse;
4. The conduct of the parties during the marriage;
5. Custodial arrangements for minor children;
6. Any other relevant factors.

If the spouses agree on a division and if the agreement is reasonable, the Court generally approves it. If the spouses can't agree, the Court will divide the property. Before discussing division with a spouse, it is important to know what all the assets are and the value of each. For example, many persons misunderstand the value of their pension or how much money they would receive for their house if it sold. Debts must also be considered in arriving at a fair division of property. Tax considerations often affect the fairness of a division as well. For example, the capital gains on assets such as stock should be calculated when offsetting against an asset such as a bank account which can be liquidated with no capital gains.

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15. What happens to joint debts?
The Missouri statute which required the Court to divide marital property does not mention debts. The Court may assess responsibility for the debts between the spouses but is not required to do so. Even if your spouse agrees to pay a joint debt or the judge orders the spouse to pay the joint debt, that liability remains a joint obligation to the creditor. Neither the agreement nor the order binds the creditor who can sue one spouse if the other doesn't pay. An important consideration regarding joint debts is that if a spouse agrees to pay the debt, or the Court orders it paid, the other spouse will still be responsible for the debt if it is not paid. If this should ever happen, the former spouse could be sued to collect the money the other spouse had to pay. When the creditor loaned the money to both spouses, he relied on that joint income and has the right to collect from either spouse. Occasionally, a bank will let a spouse refinance a loan and remove the other spouse's name, but this is rare unless the spouse has sufficient separate financial resources.

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16. Can my spouse discharge child support in bankruptcy?
Generally, maintenance and child support obligations are not dischargeable in bankruptcy. Under the current bankruptcy law sometimes joint debts are dischargeable when one spouse agrees to pay.

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17. What if my spouse and I agree upon how we want to divide our assets?
Most dissolutions are settled, not tried by a judge. This means the parties eventually reach an agreement which the attorney drafts into what is called a Marital Settlement and Separation Agreement. The judge must find that the agreement is "not unconscionable" which means not grossly unfair.

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18. What is a Marital Settlement and Separation Agreement?
In most dissolutions, the parties reach an agreement on the important issues regarding their children. The Marital Settlement and Separation Agreement typically has provisions regarding the children such as custody, time sharing arrangements, health insurance, medical expenses, life insurance and possibly income tax exemptions and educational expenses. If the parties don't agree, a judge decides the issues often after required mediation on the custody and time sharing issues.

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19. What is a Parenting Plan?
In order to encourage parents to think about the issues involving their children as early in the divorce process as possible, the law now requires that each party file a "Parenting Plan". At the time of the filing of their first pleading, initially, each party proposes how he or she feels that major issues should be handled. A typical Parenting Plan includes provisions regarding custody, visitation, holidays and summer vacations, pick-up and delivery, moving away, child support and payment of other expenses, health insurance and mediation. During the divorce process the final terms of a Parenting Plan are negotiated. It is very similar to the "joint custody plan" that we formerly filed except that now we file it even when sole custody is sought.

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20. What should I tell the children about the divorce?
Marital problems are extremely difficult for the children. Do yourself and your children a favor by not "poisoning the minds" of your children. Do not dwell on your spouse's faults! Realize from the beginning that children and/or visitation privileges are not tools for bargaining in a dissolution case-don't use them as threats. There are many good books at the library and in book stores that will help you discuss your divorce with your children.

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21. Should we get counseling?
Good counselors are available. We can recommend one to you. Whether the counseling helps keep the marriage together or helps you, your spouse and your children to get through a dissolution with the least trauma, it is generally worth the effort.

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22. Will I have to go to Parenting classes and participate in Mediation?
Local Court Rules require that in all cases where custody or visitation is to be dealt with that both parents attend a parenting class. The title of the class varies from county to county but the purpose of the program is to help make parents aware of the trauma that children go through as a result of their divorce and to provide parents with guidelines for easing the hurt to their children. There is a small cost involved in attending a parenting class. It is in addition to the court cost and your attorney's fees. You should sign up for the appropriate class after filing your first pleading. In addition to the parenting classes, the court rules require a minimum of two hours of mediation. This, too, carries a small charge. It is designed to help you resolve disputes more quickly, efficiently and economically than through long, protracted and mean spirited litigation.

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23. What is meant by joint custody?
By statute there are several forms of custody in Missouri:

1. Joint Legal Custody means both parents share all the important decision making rights and responsibilities and authority regarding the child's health, education and welfare unless those decisions are allocated differently by order of the judge. Joint Legal custody requires the parents to confer with each other in exercising the decision-making. A "plan" for joint legal custody must be included in the Court order delineating how decisions will be shared. It should include provisions for dispute resolution, such as mediation.
2. Joint Physical Custody means both parents have significant periods of time during which a child resides with or in under his or her care and supervision. Joint Physical Custody must be shared in such a way as to assure the child of frequent and meaningful contact with both parents. Joint physical custody does not require equal sharing of time.
3. Sole Custody means one parent makes all the decisions regarding the child and the child lives primarily with that parent. The time the child spends with the other parent is referred to as temporary custody or visitation. These forms of custody can be in different combinations. For example, a parent could have sole legal custody and joint physical custody or sole physical and joint legal custody.

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24. How do we split the time with the children?
Arrangements regarding how you and your spouse divide the time with your children are spelled out in detail in a Parenting Plan. Aspects of time sharing must be specific whether one parent is the sole custodian or a joint physical custody arrangement is used. The advantages and disadvantages to each approach to custody depend on the ages of your children, your relationship with your spouse, the distance between the homes and many other factors. Holidays, summers, out-of-town trips, school year issues, transportation, bedtimes, etc. must all be considered in setting up a plan. These decisions will significantly affect your future lifestyle.

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25. Who pays child support?
Child support is money paid by one parent to the other for support of the minor children. Even if a parent has joint custody, one parent will likely pay some child support.