Family Law

Divorce is the legal process that brings a marriage to an end.  It is a complex and difficult time for all members of the family.  It encompasses a process that involves the law, the court, and public agencies.  A typical divorce involves four to six steps.  The steps are as follows:

1. Filing the divorce petition and issuance of summons.
2. Issuance of Temporary orders.
   (Temporary orders are not sought in all divorce actions)
3. Discovery
4. Negotiation
5. Trial
6. Divorce Decree

1. Filing the divorce petition and issuance of summons. The divorce action is started by the Petitioner (the person initiating the divorce) filing a Petition for Dissolution of Marriage. The petition generally contains some or all of the following:

1. the parties names
2. their residences and duration of their residency
3. date and location of the marriage ceremony
4. date of the party’s separation
5. names of children born to the marriage or relationship and their birth dates
6. request for legal and physical custody of children
7. request for child support
8. request for division of the marital assets and marital debt
9. allegation that the marriage is irretrievably broken and
10. request for dissolution of the marriage.

After the petition is filed in the Circuit Court, a summons is issued by the court.  The summons is the notice to the non-filing spouse, the respondent, that a divorce action has been started.  The Respondent is served with summons and a copy of the petitioner's Petition for Dissolution of Marriage.  The summons informs the Respondent that an answer or response must be file in 30 days.  The respondent must admit or deny each of the allegations contained in the Petition for Dissolution of Marriage. 

If an answer is not filed in the 30 days, the Respondent is in default.  Once the Respondent is in default, the Petitioner can petition the Court to grant him/her everything requested in the Petition for Dissolution of Marriage.

 2.  Issuance of Temporary orders.  If the parties to the divorce can not resolve marital issues before the final decree of dissolution of marriage is granted, a motion can be filed with the Court for temporary resolution on the matters.  The temporary resolution by the court is called a Temporary Order.  Matters that may have to be resolved include but is not limited to the following:  alimony/maintenance, who has custody of the children, child support, visitation with the children, use of marital property and the right to live in the marital home.

3.  Discovery.  To obtain a fair and equitable divorce, it is important that the parties complete information regarding marital income, assets and debts.  Discovery allows the parties to ask their spouse questions regarding subjects in which they lack information.  When the questions are presented the spouse in written form, it is called interrogatories.  When the questions are presented to the spouse in oral questions, it is call a deposition.

 4.  Negotiation.  The Court views a marriage as an economic partnership.  All property acquired during the marriage except property acquired by gift or inheritance is divided on a 50/50 basis.  There are exceptions to the 50/50 split (eg. marital misconduct).  The parties must make decisions regarding the division of the property and debt, the granting of maintenance (alimony), child custody, child visitation and child support.

Property includes but is not limited to income, pensions, real estate, furnishings, investments, and value of businesses.  Outstanding debt reduces the value of an asset by the corresponding amount.

In making a determination of a spouse’s eligibility to receive maintenance, one must consider the age and earning potential of the requesting party, the duration on the marriage and rather the requesting party was a homemaker or disabled non-earning spouse.

In making a determination of who gets custody of the minor children, the determining factor or test to be used is the "best interest" of the minor child(ren).  The sex of the parent can not be used as a basis for granting custody.

There are two forms of custody.  The forms are legal custody and physical custody.  Legal custody involves the medical, educational and legal well-being of the child(ren).  Physical custody involves the right to live with the child(ren) and the responsibility to take care of them on a daily basis.

There are basically three custody arraignments.  They are as follows:

1. Sole Custody.   Sole custody occurs when one parent is given both legal and physical custody and the other parent is given reasonable visitation.
2.  Joint Legal Custody.  Joint Legal Custody occurs when both parents are given legal custody of the child(ren).  The parents cooperate in making legal decisions regarding the child(ren) as they grow up.  One parent is given physical custody of the child(ren).  The other parent is given visitation with the child(ren).
3. Joint Legal and Physical Custody.  Joint legal and physical custody occurs when the child(ren) alternately resides with each parents and the parents cooperate in making legal decisions regarding the child(ren) as they grow up.

Other issues that must be decided include the apportionment of child support, health insurance and daycare expenses.

In Missouri, presumed child support is calculated by a formula.  The formula considers the parties’ income, number of children, parties' other support obligations, daycare expenditures, length of time children are with the non-custodial parent and heath care expenditures.

To calculate the Missouri presumed child support amount, click on the link below for a child support calculator.  (The link is to an external site that is not connected with Love-Law.)

Child Support Calculator

Issues that can not be resolved by the parties will be decided by the Judge or Commissioner in a contested trial.

5.  Trial.  The trial is the setting in which the Judge or Commissioner reviews the facts of the case and exhibits presented which becomes the basis for the final decree.   The trial could be stipulated, uncontested or contested. 

In a stipulated trial, neither party has to appear in court.  All information is presented to the court by sworn affidavits.  If after review of the affidavits, the court finds the evidence to be fair and not unconscionable, the Court may enter a final decree of dissolution of marriage.

In an uncontested trial, the petitioner and respondent have reached an agreement on all issues or the respondent is in default.  The petitioner must appear to testify on the facts of the matter.  The respondent does not have to appear. The Judge or Commissioner hears the evidence and reviews the exhibits presented which becomes the basis for a final decree.

In a contested trial, both parties must appear.  A contested trial occurs because the parties have not been able to reach an agreement on one or more issues.  The Judge or Commissioner hears the evidence and arguments from both sides and reviews the exhibits presented which becomes the basis for a final decree.

6.  Final Decree.  The Judge or Commissioner's findings of fact, conclusion of law and judgment provisions go into the final decree.

A child born within a marriage is presumed to be the child of the male spouse. The male spouse has the responsibility to provide financial support and health care to the child. The male spouse also has the right to have the child live with him. The male spouse’s responsibilities and rights can only be terminated or restricted by court action.

In the situation of a child born between an unmarried couple, the biological father has a moral responsibility to provide financial support and health care to the child but no legal responsibility.  The biological father has no legal visitation rights regarding the child.

To establish the biological father’s rights and obligations, a petition to establish paternity, custody, support and visitation is filed in the county in which the child resides.  The action can be initiated by the mother or father of the child.  The burden is on the petitioning party to demonstrate that the alleged father is the biological father of the child.

If circumstances have changed since the issuance or the Order of Dissolution of Marriage or Order of Paternity, you may have the right to modify that order.  Most modifications request changes in child custody, visitation and/or child support.  Additionally, if an administrative order of child support has been issued with no specific visitation rights to the father, the father has the right to petition the court for specific visitation with the child(ren).

Changed circumstances include but are not limited to the following: 

1. the child’s needs have changed;
2. financial condition of the parties have changed;
3. failure of a party to act in the best interest of the child(ren);
4. death of parent or child; and/or
5. emancipation of child.

Questionnaire Link - Divorce

Questionnaire Link - Paternity