Questions to ask during divorce

Whether an uncontested or contested divorce, the issues the parties and/or the court must ultimately decide are the same and begin with three words – custody, property and support.

Property

In Missouri, the law recognizes two types of property – separate and marital.  Separate property is the property of one spouse obtained prior to the marriage.  Marital property is property the parties obtained during the marriage. Sometimes a party can convert separate property to marital property by, for example, titling a house purchased prior to the marriage jointly in the names of both parties.  One challenge in dividing property is untangling commingled property.

Generally, the court must make an equitable distribution of marital property and set aside to each party his or her separate property.  Property includes both assets and liabilities.  The court will start from a 50-50 division and depart if the circumstances warrant, after considering the economic circumstances of each party at the time of dissolution, including how to handle the marital residence; the contribution of each spouse to the marital property; the value of the separate property of each party; the conduct of the parties during the marriage; and the custodial arrangements for the children.

Dividing marital property can become very challenging and complex as the number of assets increases, particularly ones in trusts or investments or retirement accounts.  The court may have to enter a Qualified Domestic Relations Order (QDRO) to distribute a portion of a pension or retirement account, and they must be drafted to suit the particular demands of the administrator of the account.

Children

If the parties have children, the most significant issue to resolve has to do with the custody of the children.  In Missouri, we decide two different types of custody – legal custody, which involves who shall make decisions regarding the health, education and welfare of the child, and physical custody, which involves when and under what conditions the child resides with each parent.

Legal and physical custody awards may be either joint or sole awards.  Missouri has a preference for joint custody awards.  Joint legal custody means both parents jointly make decisions regarding the health, education and welfare of the child – they share information, they consult prior to decisions and collectively agree on a course of action. Sole legal custody means one parent makes the decisions regarding the health, education and welfare of the child, though the sole legal custodian still may have to consult with the other parent in advance of decisions and keep that parent informed about schooling, medical care and activities.

In determining whether to award sole or joint legal custody, the court is guided first by the best interests of the child, but also must consider a list of factors, including the wishes of the parents; the need to assure a continuing and meaningful relationship with both parents and which parent would be more likely to facilitate that relationship; the interaction of the child with parents, siblings and other family members; which parent would more likely allow frequent, continuing and meaningful contact with the other parent; the child’s adjustment to home, school and community; the mental and physical health of both parents, including any issues of domestic violence; the intention of either parent to relocate; and the wishes of the child, if the child is sufficiently mature to express such wishes.

Joint physical custody awards both parents generally equal time with the minor child.  However, just because a court gives the parties joint physical custody does not mean the time must be exactly 50-50. The court may decide it is in the best interests of the child to minimize transitions between households during the school year, for example.  In any joint physical custody award, the court still must designate one parent the residential custodian for mailing and educational purposes – an important issue if the child will attend public school.  Sole physical custody awards one parent principal time with the minor child, but still must insure frequent and meaningful continuing contact with the other parent.  In determining whether physical custody should be sole or joint, the court must use the same factors set out above for legal custody.

In all cases, the court must enter a detailed Parenting Plan that will set out the specific duties and conditions of each parent with regard to legal and physical custody, and will set out a specific schedule of temporary physical custody.

Child Support

Parents have a legal obligation to support their children.  In Missouri, the state Supreme Court has devoted many hours to structuring child support based upon the combined incomes of the parties and the associated household expenses based on the income level and the number of children.  The court must complete what is called a Form 14, a worksheet that takes the gross monthly incomes of each parent to arrive at a presumed child support amount.  The court uses the relative incomes of the parties to determine who shall pay support to the other parent and in what share. The court will also make adjustments for health insurance, child care and visitation credits before reaching a final support amount. If the court feels the amount is inappropriate, it may depart from the presumed child support amount, but it must state its reasons for doing so in the Judgment for Dissolution of Marriage.

While child support may seem somewhat mechanical, determining the numbers that go into the chart can be challenging, especially if one parent is self-employed or has been unemployed and the court must impute income to that parent because both parents have a duty to become gainfully employed and provide support for the minor child.  Also, parties may disagree about the reasonable amount of child care or health care expense.  In all disputed cases, parties will need to introduce evidence to support their claims regarding income and the child care and health care expenses.

Spousal Support

In Missouri, each spouse is expected to take all reasonable steps to secure adequate employment and become or remain self-sufficient.  However, in some marriages, given the disparity of incomes or the absence of one spouse from the workforce for a lengthy period of time, one spouse may not be self-sufficient.  If the court finds that one spouse lacks adequate property to support his or her reasonable needs, and is unable to support oneself through appropriate employment, the court may award that spouse maintenance.  In considering the amount and the duration of the award, the court must consider the financial resources of each party; the time necessary to acquire sufficient training or education to obtain appropriate employment; the comparative earning capacity of each spouse; the standard of living established during the marriage; the obligations and assets of each party; the duration of the marriage; the age and physical and emotional condition of the party seeking maintenance; the ability of the spouse who would pay maintenance to do so and meet his or her own obligations; and the conduct of the parties during the marriage.

Maintenance awards may be modifiable or not modifiable.  If modifiable, a party may in the future return to court and ask that the amount be reduced or the obligation terminated because, for example, the party receiving maintenance no longer needs the additional support or the party paying maintenance can no longer afford to pay the support.

Maintenance can be very challenging because of the variety of factors, and each marriage is unique.  The law favors self-sufficiency, so the party seeking maintenance has to prove real need.  Also, the law will not allow a party to remain unemployed or underemployed, nor will it unduly burden the other party with an amount it deems unreasonable.

Getting Help

As you can see from the issues to resolve, the process is not just a short set of simple, self-executing rules, but involves many complex and often difficult questions of proof.  Only a skilled and experienced family law attorney can properly advise you as to your rights with regard to custody, property and support, and protect those rights in a legal proceeding.

At The Marks Law Firm, L.L.C, we have over fifty years of combined experience handling family law matters. We help individuals understand their rights with regard to all issues, including child custody, child support, spousal support and division of property.  We do all required discovery, draft marital settlement agreements and try your case before the judge if we cannot reach a settlement.  We have handled hundreds of trials before family court judges; if you choose The Marks Law Firm, L.L.C., you will have the benefit of an attorney unafraid to go to court, advocate on your behalf and fully present your case.