Family Law and Dissolution of Marriage

Family matters differ from other litigation in one respect that governs everything else. The parties will continue to have dealings with one another after the judgment is entered, particularly where there are children, and a strategy that wins the proceeding while destroying that relationship has not served the client well.

Dissolution of marriage in Missouri

Missouri does not require proof of fault to end a marriage. A dissolution proceeds under Chapter 452 of the Revised Statutes of Missouri on the ground that the marriage is irretrievably broken, and one party wishing to end it is ordinarily sufficient. The contested questions are not usually whether the marriage ends but what follows from it: how property is divided, whether support is payable, and what arrangements are made for the children.

Property is divided on the principle of equitable distribution, which means a division that is fair in the circumstances rather than necessarily an equal one. The court first determines what is marital property and what is separate, then divides the marital estate having regard to the economic circumstances of each party, the contribution of each to its acquisition, including the contribution of a spouse who worked in the home, the value of the separate property each retains, and the conduct of the parties during the marriage.

That last factor surprises people who have been told Missouri is a no fault state. It is, as to the ground for dissolution. Conduct may nevertheless be considered in dividing property, which is a distinction with real financial consequences.

Children: custody and parenting time

Missouri distinguishes legal custody, being the right to participate in decisions about education, medical treatment and religious upbringing, from physical custody, being where a child actually resides. Either may be joint or sole, and the two are decided separately. Joint legal custody with one parent having the majority of physical custody is a common arrangement.

Every determination is governed by the best interests of the child. The court considers the wishes of the parents and, where the child is of sufficient age and maturity, the wishes of the child; the child's adjustment to home, school and community; the mental and physical health of everyone involved; the willingness of each parent to support a continuing relationship with the other; any history of domestic violence; and the intention of either parent to relocate.

The court expects a written parenting plan setting out the residential schedule, the arrangements for holidays and school vacations, how decisions will be made, how the parents will communicate, and how future disagreements will be resolved. Parents who reach their own plan retain control over these arrangements. Parents who cannot receive a plan imposed by a judge who has met the family for a matter of hours.

Support

Child support is calculated using a statutory formula that takes account of the gross income of both parents, the cost of work related childcare, the cost of health insurance for the child and the number of overnight visits each parent exercises. The resulting figure is presumed correct, though a court may depart from it where the presumed amount would be unjust or inappropriate in the circumstances.

Spousal maintenance is not automatic and is not available merely because one party earns more than the other. It requires a finding that the party seeking it lacks sufficient property to meet their reasonable needs and is unable to support themselves through appropriate employment. Where maintenance is awarded, the court fixes the amount and duration having regard to the standard of living during the marriage, the length of the marriage, the age and health of the parties, and the earning capacity each retains.

Businesses and pensions

Where one spouse holds an interest in a closely held business, the dissolution becomes a valuation exercise. What is the interest worth, how much of that value was accumulated during the marriage, and how is the other spouse to receive their share without destroying the business as a going concern? These questions require accounting evidence and frequently a formal valuation, and they are among the most heavily contested in the practice.

Retirement provision raises comparable questions. A pension or retirement account accumulated during the marriage is ordinarily marital property to the extent of that accumulation, and dividing one usually requires a separate order directed to the plan administrator. Preparing that order correctly matters: an error in it can defeat the division the judgment intended, and the mistake frequently emerges only years later at retirement.

Settlement, mediation and trial

Most family matters resolve by agreement, and there are good reasons to prefer that outcome. Parties who reach their own settlement retain control over arrangements a judge would otherwise impose, the cost is lower, the process is private, and the working relationship that co-parenting requires is more likely to survive.

One of our partners is trained in collaborative practice and serves as a mediator in domestic relations matters. Where a settlement can be reached that properly protects your position, we will pursue it. Where it cannot, the matter is prepared for trial from the outset rather than at the point negotiation fails, because a party known to be unprepared for trial negotiates from weakness.