The Missouri Divorce Process and Law

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Below is an overview of Missouri divorce process and law. This summary is meant to provide general information only and is not legal advice. Every case is different. Contact our Kansas City divorce attorneys for assistance with respect to your specific circumstances.

Terminology

Under Missouri law, the process commonly called “divorce” is called “dissolution of marriage.” No matter which term you use, the result is the same. We are discussing the legal process that terminates the marital rights and responsibilities between spouses.

Jurisdiction and Venue

To file a case for dissolution of marriage, legal separation, or annulment in Missouri, one of the spouses must have been an “actual resident” of Missouri for at least ninety days before filing. If one spouse lives in another state, that spouse can consent to the jurisdiction of a Missouri court. In the alternative, jurisdiction may be obtained by serving the filed paperwork on the out-of-state spouse when he or she is in Missouri of through one of many “long-arm jurisdiction” provisions provided by law.

A divorce, annulment, or separate maintenance case can be initiated in a county where either spouse resides or in a county where the non-filing party can be served with legal paperwork. If the filing spouse resides or stationed at a United States post or military reservation in Missouri, the case can be filed in a county adjacent to the post or reservation.

Grounds for Divorce or Legal Separation

A Missouri court can dissolve a marriage or grant a request for legal separation upon finding that the marriage is “irretrievably broken.” This means the party seeking the divorce believes the marriage is not reparable. It is a “no fault” divorce standard—meaning there is no requirement to prove one spouse caused the marriage to fail. This is the most common basis for dissolution of marriage or legal separation.

Starting the Divorce Process in Missouri

The process of divorce, legal separation, or annulment begins by one spouse filing a petition for dissolution of marriage. The spouse that files the petition is called the petitioner; the other spouse, who is obligated to respond to the petition, is called the respondent. The petitioner and the respondent are the parties to the case; each, individual is a party to a case.

The petition for dissolution of marriage must contain information pertinent to the legal issues that will need to be decided in the case (such as when and where the parties were married, if there are any minor children of the parties, if the parties have assets and debts subject to division by the court).

In addition to the petition, the state of Missouri will require parties to file an Income and Expense Statement (Form 1402b), a Statement of Property and Debt (Form 1402a), and a Parenting Plan, if minor children are involved.

Temporary Orders

Unlike neighboring Kansas, Missouri law does not allow for the issuance of ex parte temporary orders regarding child custody and visitation, child support, possession of marital property or other matters. (“Ex parte” means “on or from one side or party only.” An ex parte order is issued by a judge based on information provided by only one party to the case, and the other party’s input has not been considered.)

Missouri courts do issue temporary orders. But a party who wants a temporary order must file a motion and give the other party an opportunity to respond. The motion will be set for a hearing so that the judge can consider both parties’ positions before making a decision.

Serving the Respondent

The respondent formally becomes part of the case when served with a copy of the petition and a summons (an official notice of the lawsuit). In Missouri, a party to a lawsuit can be served by a law enforcement officer or a special process server. The paperwork can be delivered personally, via certified mail, or, in some circumstances, through publication in a local newspaper. It is not considered effective legal service for the petitioner to provide the petition and summons to the respondent directly. However, the respondent can waive formal service and enter an appearance voluntarily.

Cooling Off Period

At least 30 days must elapse after the filing of the petition before a court has authority to dissolve the marriage. This is called the “cooling off” period. It is standard procedure in nearly every jurisdiction, although the waiting period may differ from state to state. The purpose of imposing this mandatory delay is to allow sufficient time for a divorcing couple reconsider the decision to divorce.

Maintenance

The judgment and decree issued in a dissolution case may grant either party an allowance for future financial support. The legal term for this is “spousal maintenance” (previously known as alimony).  However, in Missouri, a party must show a demonstrated need for spousal maintenance. This can be demonstrated with evidence the party is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition makes it inappropriate to require that spouse to seek employment outside the home.

Judges in Missouri have a great deal of discretion when determining how much maintenance to award and how long spousal maintenance should last. They will consider factors such as the requesting spouse’s financial resources and ability to meet their needs independently; the requesting spouse’s age, physical condition, and emotional condition; the time it would take a requesting spouse to attain sufficient education or training to enable them to find appropriate employment; and more.

Discovery

Discovery is a formal exchange of information between parties to a lawsuit. Each party can make written discovery requests of the other party, and the receiving party must respond with relevant information and documents. The requests and responses will pertain to issues in the case, such as property to be divided between the spouses. A party may take the other party’s deposition or the deposition of other relevant witnesses.

Not all divorce cases will require significant discovery. It is more likely that a dissolution case will involve extensive discovery when a significant amount of property needs to be divided or the couple has disputes about child custody, residency, or parenting time.

Trial

If spouses cannot agree regarding how to resolve all the issues in their case, a judge will decide those issues at trial. At trial, each party’s divorce lawyer will present evidence and arguments in support of a proposed outcome. Witnesses may be called to testify, and tangible exhibits can be offered for the judge’s consideration. The judge will choose how to resolve each contested issue, and that decision will be included in the decree of dissolution.

Decree of Dissolution

The Judgment and Decree of Dissolution of Marriage is a court order that formally, legally dissolves the bonds of matrimony and grants the divorce. Dissolution of the marriage is final when the decree is filed with the district court clerk.

The decree will describe how the parties’ marital property must be divided between spouses. If spousal maintenance has been ordered, that will also appear in the decree. If the spouses have minor children, the decree will include a final parenting plan addressing legal custody, residency, and parenting time, and child support provisions.

The parenting plan in the decree is generally referred to as a “permanent parenting plan,” but the court has continuing jurisdiction over all child-related issues. That means the court can continue to address issues related to legal custody, residency, parenting time, and child support at least until the parties’ minor children turn 18 years old. Jurisdiction may continue for a longer period of time in some child support situations.

From “Ours” to “His” and “Hers”

When a marriage is dissolved, property once belonging to the married couple jointly is redistributed to the individual spouses.

Property Division

Missouri statute requires that “the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors.” Factors that may be considered include:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any 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 set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

Missouri law requires an equitable division of the marital estate. A division that is equitable may, but will not necessarily, be an “equal” division. The court will typically award each spouse the property he or she owned prior to marriage and divide property acquired by the couple during the marriage, but it is possible that separate property brought into a marriage will be divided.

Division of debt is treated in the same manner. Generally, joint debt accumulated during the marriage will be divided between the spouses. If one spouse came into the marriage with debt, it may be carved out for payment by the spouse who created the debt.

Marital Settlement Agreement

The parties to a divorce can decide for themselves how to divide their marital estate by entering a marital settlement agreement. A marital settlement agreement reached by the parties will be reviewed by the court, and it will be approved if the judge finds that the agreement is just, fair, and equitable. The agreement must include enough detail for the court to make this finding.

A divorcing couple’s written settlement agreement can be a standalone document, or it can be part of the Judgment and Decree of Dissolution of Marriage. Generally, marital settlement agreements cannot be reviewed or modified by the court after they are finalized. There are limited exceptions to this rule.

Missouri Child Custody and Child Support

This overview of Missouri child custody and support law is intended to provide general information only and not legal advice. Because every situation is different, you should contact a Kansas City divorce attorney for advice about what to do in your specific situation.

Child Custody

In a Missouri divorce proceeding, courts are authorized to order custodial arrangements that serve the best interests of the children of the marriage. Many people associate the term “custody” with where the children live, but legal custody actually refers to the decision-making rights of divorced parents with respect to their children.

That is, joint legal custody means the parties have equal rights to make major decisions for their children, such as where the children will be educated, what religion the children will be raised in, which doctor the children will use and which medical procedures will be permitted. Joint legal custody is awarded in the vast majority of Missouri divorce cases. 

If the judge determines the best interest of a child will not be served by the parents sharing decision-making responsibilities, sole legal custody may be awarded to one parent. A sole legal custody award must be supported by specific findings of facts setting out the basis for that decision, and the judge must make a record of those facts.

Residency of the Child

Physical custody of the child, or residency, will also be ordered according to the best interests of the child. One parent’s address may be designated as the primary address for mailing and educational purposes so the child can attend the school designated by that parent’s address.

The amount of parenting time allotted to each parent is a factor in determining residential custody, but it does not always follow that the parent with more time automatically has residential custody.

Parenting Time

The term “visitation” has been replaced with the term “parenting time.” Both refer to the time a child spends with each parent. The court may order a parenting plan of its own making or adopt a plan agreed upon and jointly proposed by the parties.

A judge may approve a parenting plan that grants “reasonable parenting time as agreed upon by the parties” if the parties are amenable to such an order. Or, if more structure is required, the parenting plan may provide a detailed outline of days the child spends with each parent, exchange times and locations, and a structured holiday schedule.

Alternative Dispute Resolution

Unless the parties agree about custody and parenting time, most Missouri courts require some form of alternative dispute resolution during divorce litigation where the divorcing spouses share minor children. The purpose of this requirement is to encourage the parents to resolve custody and parenting time issues without a contested court hearing.

Mediation is one form of alternative dispute resolution. It is a confidential process. During mediation, the parties and their divorce attorneys meet with a trained mediator and attempt to resolve disputed parenting issues through a setting that is less adversarial than a courtroom.

Child Support

Child support is determined by the Missouri Child Support Guidelines (Form 14). Under the guidelines, a base child support amount is determined from the gross income of each party. Then, adjustments are made based on parenting time and considerations such as the costs associated with long-distance parenting time, health/dental/vision insurance, and daycare.

The guidelines provide a basis for establishing and reviewing child support orders, including agreed child support orders. Judges, attorneys, and hearing officers are required to follow the guidelines, and the judge establishing a child support amount is required to consider all relevant evidence submitted.

Child Support Guidelines

Since the Family Support Act of 1988 became effective, each state is required to have uniform child support guidelines for the determination of child support payments throughout their jurisdiction. These guidelines help state courts calculate the monthly support payments, among other issues.

Three methods of calculation are used throughout the U.S.:

1. The income shares model. This method combines the income of both parents, then allots a fixed percentage of that income, divided equally between both parents, to the financial maintenance of the children.
2. The Melon Formula model. This is a complex form of the income shares model in that it incorporates rises in either parent’s standard of living.
3. The percentage of income model. This method only considers the non-custodial parent’s income. It allots a fixed percentage of that income toward the financial maintenance of the children.

Missouri uses the income shares model.

Many states’ models consider the following factors when determining support payments:

• How much other income each parent receives
• How many children the parents share
• How much time each parent spends with their children
• The cost of daycare and healthcare
• The actual tax filing status of each parent
• Support of children from other relationships
• Health insurance expenses
• Mandatory union dues
• Mandatory retirement contributions

Dealing with the Challenges of Child Custody and Child Support

Contentious divorces often result in post-dissolution disputes. Issues span from late support checks, to violations of the parenting plan schedule, or to unauthorized decisions that do not serve the best interests of a child. If you run into these problems after a decree ending your marriage, a child custody and child support lawyer can help secure support payments, adjust the parenting plan, and assist in enforcing orders made in the interest of supporting your child’s development.

Although state laws govern the majority of these issues, federal laws have been passed in an attempt to bring uniformity and enforceability into child support. Federal law authorizes the withholding of wages from, or the interception of tax returns for, parents who are behind on their support payments. Failure to pay child support can even result in federal prosecution.

If you need help enforcing a child support order, Joseph, Hollander & Craft’s child support attorneys can help you pursue enforcement procedures, such as wage garnishment, or help you obtain a change of orders.

Our Kansas City family law attorneys can also assist in resolving child custody and parenting time issues that arise post-dissolution. Some issues may require revised custody orders or modifications to parenting plans. We can assist even if you were represented by another lawyer in your initial divorce proceedings. We can provide a fresh perspective to develop a plan to change what isn’t working for you and your family.

For assistance with your child custody or child support issue, contact us today.