Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Recent ruling NC v. CC Missouri Court of Appeals, Eastern District - ED95337    

Husband appeals from the trial court's Amended Judgment and Decree of Dissolution of Marriage dated June 2, 2010, ordering Husband to pay monthly maintenance to Wife and dividing the parties' property and debts. Husband challenges the validity of the trial court's order, and the court's orders regarding maintenance and the division of property and debts.

Decision:

In a dissolution judgment ordering the sale of a marital residence, the judgment must specifically designate how the marital residence will be placed for sale, provide a time frame for selling, and any reasonable conditions upon the sale of the home as the trial court deems necessary. Here, the trial court's order directing the sale of the marital residence failed to set a time frame for the sale. The Court remanded for a new trial as it relates to maintenance, the division of marital property, and the division of marital debts, as the sale of the marital residence affects the division of marital property, maintenance, and debts.

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Recent Ruling LP v. EP, WD75030 Missouri Court of Appeals

Following a bench trial, the trial court entered a judgment of dissolution, dissolving the marriage of Mother and Father. The trial court divided the marital property, established custody and awarded child support to Mother. On appeal, Father alleges the trial court erred in (1) "not making a just and equitable distribution of property" in that it accepted Mother's valuation of the home and not the appraiser's opinion; (2) ordering Father to pay a portion of Mother's attorney fees, alleging that there was no substantial evidence to support the award; (3) awarding child support for his nineteen-year-old son ("Son") because Son did not meet the statutory requirement of being enrolled in college by October 1 following high school graduation; and (4) in calculating the amount of child support owed because the court's Form 14 calculation did not contain an overnight visitation credit, nor did it accurately reflect Mother's monthly income.

 AFFIRMED IN PART, REVERSED IN PART

Held:  (1) because a party is qualified to testify as to the value of property and the court can believe or disbelieve either an owner or appraiser's valuation of property, the trial court did not err in accepting Mother's valuation of the marital home such that an equitable distribution resulted;

(2) because substantial evidence established Father's misconduct during the marriage and separation, as evidenced by incidents of domestic violence against Mother and Son, misuse of finances and his incarceration for felony DWI while the case was pending, the court did not err in awarding Mother a portion of her attorney's fees;

(3) Because Son had joined the National Guard in order to receive tuition assistance and planned to enroll one semester late following a required training period, the Court did not err in its award of child support for Son as he fits the statutory exception to emancipation; and

(4) with regard to the actual calculation of child support ordered by the court, there was error in the stated income of Mother, which both sides admitted, such that the court's award erroneously added $30 per month to Father's child support obligation and added to the child support arrearage owed by Father.  Father was not entitled to overnight visitation credits based on evidence that overnight visits had not occurred during the separation and would likely not occur in the future so as to warrant a credit.

 

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The duration of a divorce in Missouri varies from case to case.  Factors that determine length include how contested the case is, the cooperation of the parties, whether or not there are two attorneys involved, the complexity of the issues, whether or not there are issues of abuse or neglect of children and the appointment of a guardian ad litem, whether or not the case goes to trial, the county where the case is filed, involvement of experts, and other case specific factors.

On the short end, a Missouri divorce case that is completely uncontested, where only one party is represented by counsel, and the parties have signed written agreements for parenting matters (parenting plan), child support, property and debt division, and maintenance, can be completed in most cases in about 45-60 days from the date of filing, depending on the county.  Note however that the length of time that is spent negotiating, drafting, and reviewing the agreements may add some time to this.

For a contested Missouri divorce case, where the parties are not in agreement at the beginning, but eventually come to an agreement resolving all of the issues without trial, the time frame usually runs in the range of 6 months, but again is county and case specific.

For a contested Missouri divorce case that goes all the way to trial, not counting post trial motions, appeals, or further proceedings, will often take between 6 months and 1 year, but could easily exceed that time frame depending on the county and the complexity of the case. In the event of appeal of a tried divorce case, the time frame will almost always exceed 1 year.

Note that there is a statutory 30 day waiting period for all Missouri divorce cases which starts on the day of filing, but it is rarely that even an uncontested case is completed this quickly, as the dockets of most courts will exceed the minimum waiting period.

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Since 2005, the Bankruptcy law has been relatively clear that nearly any obligation resulting from a dissolution of marriage proceeding is not dischargeable in bankruptcy, whether that is in the nature of a domestic support obligation (11 USC 523(a)(5)) or a property/debt settlement (11 USC 523 (a)(15).  The Missouri Court of Appeals has reiterated this in a recent ruling.

Recent case: Henderson v. Henderson, No. 98357 (Mo. App. E.D., December 26, 2012)

The parties were divorced in 2010. They entered into an agreement which set forth their respective obligations to pay certain debts of the marriage. Throughout the agreement, there was language that the agreement to pay said debts and hold the other harmless thereon was not dischargeable in bankruptcy. Nevertheless, the ex-husband sought the discharge of his portion of those obligations in a Chapter 7 bankruptcy filing in 2011. His petition for discharge was granted, and the ex-wife had not objected to same in bankruptcy court.

Thereafter, ex-wife filed an action against ex-husband for a contempt citation related to the debts he got discharged. The ex-husband argued that she waived her right to object by failing to file anything in the bankruptcy proceeding. The trial court only required the ex-husband to pay a portion of the debt in question. It determined that only a portion of the debt was in the nature of a domestic obligation non-dischargeable in bankruptcy.

However, it held the ex-husband responsible for a portion of the discharged debt. Both parties appealed.

Held: Reversed.

Under current Chapter 7 bankruptcy law (11 U.S.C. § 523 (a)), “‘all debts owed to a spouse, former spouse, or child of a debtor are non-dischargeable if incurred in the course of a divorce proceeding, notwithstanding the debtor’s ability to pay the debt or the relative benefits and detriments to the parties.’ In re: Tarone, 434 B.R. 41, 48 (Bankr. E.D. N.Y. 2010).”

Thus, a property settlement obligation encompassed by 11 U.S.C. § 523 (a)(15) is non-dischargeable. The trial court erred in finding the debt partially dischargeable.

From the Missouri Bar Courts Bulletin March Edition

Note:  Some debts of this type may be dischargeable in Chapter 13 proceedings.

 

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News Release from the Jackson County Circuit Court:

Starting in March, there will be no more mad dashes to the courthouse by attorneys to file papers at the last minute. The Circuit Court in Jackson County will begin paperless electronic filing which is expected to save shoe leather for attorneys and public dollars for the community.

The Court has been working for years in its efforts to get ready for electronic filing. The Office of State Courts Administrator in Jefferson City has given the Court a green light to go green."It is a distinct privilege for Jackson County to enter the future with electronic filing which, at its core, is another tool to facilitate the public's access to the courts," said Presiding Judge Marco A. Roldan.

 Electronic filing will start for civil and domestic cases filed and pending in Independence

on March 4. Electronic filing will start in Kansas City on March 25. The move to electronic filing is expected to save the Court money in reduced paper costs, less postage, and document storage, and lead to administrative efficiencies. It will also benefit attorneys who will no longer need to file papers in person. Computer filings will be mandatory for attorneys in civil and domestic cases. At this time, paper filings will continue to be used in criminal, probate, and juvenile matters, as well as in pro se filings where the parties represent themselves without an attorney. Pro se cases are typically filed in small claims, in adult abuse petitions and divorce filings.

 

Thus far, three circuits out of 45 in the state have instituted electronic filing. However,

Jackson County will be the largest circuit to date. In fiscal year 2012, according to the state’s

figures, there were a total of 49,210 civil and domestic cases filed in the Circuit Court of Jackson

County.“Due to the hard work of the Jackson County court staff, our civil divisions have already gone paperless in anticipation of eFiling,” said Joel P. Fahnestock, who is chair of the Circuit

Court’s Technology Committee, and who is a member of the Missouri Court Automation

Committee in Jefferson City. “The judges and staff are excited that the state’s eFiling system is

coming to Jackson County next. It is quite an honor.”

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Recent Case: JT Appellant vs. AT, Respondent  Missouri Court of Appeals, Eastern District - ED97995

Father appeals from the trial court's judgment of November 8, 2011, dissolving his marriage with Mother and entering a child custody and support award for their minor child ("Minor"). The trial court's judgment granted joint physical custody to the parties, with Mother as the residential parent, and ordered Father to pay child support to Mother.

 

Based on Rule 74.05(d), the Court did not find that the trial court abused its discretion in setting aside the parties' March 4, 2009 default judgment of dissolution because the motion to set aside was filed within one year. Mother presented good cause and a meritorious defense, and Father was not substantially harmed by the trial court's Judgment setting aside the default judgment. Further, due to the trial court's judgment setting aside the default judgment, Father's retirement plan is considered marital property because the parties were restored to their original positions as though the default judgment had never been entered.

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Recent Case: KO vs. MS Missouri Court of Appeals, Western District - WD74673

Wife appeals the judgment of the trial court entering a dissolution decree. In several points on appeal, she challenges the court’s determinations regarding child custody and property division issues.

The Court Held:

 

(1) Because the parenting plan did not assign all custodial time the case must be remanded for a revised plan that does. 

 

(2) the trial court did not err in ordering what school the children are to attend because there was evidence that Husband and Wife were unable to agree on the proper school for the children,

(3) the court’s parenting plan is not erroneous because it gives each parent approximately equal parenting time and allows for the children to have the maximum amount of time possible with their half siblings, and therefore is in the best interests of the children,

(4) the court’s division of the parties disputed bank account was not erroneous because it was in accordance with the premarital agreement,

(5) the court’s division of the parties residences, their respective debt and equity, and the related equalization payment was not reversible error because the difference between its division and that under the proper calculation is de minimis, and

(6) the trial court’s valuation of the furniture in Wife’s possession at the time of dissolution was not erroneous because it was supported by Husband’s credible testimony.

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Recent case:  CJWQ vs. SJQ Missouri Court of Appeals, Western District - WD74342

Mother  appeals the circuit court’s judgment modifying the dissolution decree from her marriage to Father. Mother asserts that the court erred when: (1) it failed to appoint a guardian ad litem pursuant to section 452.423, RSMo Cum. Supp. 2011, claiming that Mother clearly alleged abuse and/or neglect in her motion to modify and, therefore, appointment of a guardian ad litem was mandatory; (2) it awarded sole physical custody to Father because its statutory findings under section 452.375.2, RSMo Cum. Supp 2011, were against the weight of the evidence and the evidence did not support that the custody change was in the best interests of the children; and (3) it allowed evidence of facts that occurred prior to the dissolution of marriage judgment, contending that section 452.410.1, RSMo 2000, restricts the court’s consideration to facts that have arisen since the prior decree.

 

HELD: AFFIRMED WITH MODIFICATION OF THE JUDGMENT

 

(1) The circuit court did not err in failing to appoint a guardian ad litem. Mother pled no express allegations of abuse or neglect such as would have triggered the mandatory appointment of a guardian ad litem pursuant to section 452.423

Mother pled no express allegations of abuse or neglect such as would have triggered mandatory appointment of a guardian ad litem pursuant to section 452.423. Mother’s pleadings - regarding “ongoing concerns” about the stability of Father’s mental state, the stability of the children’s environment when they are in Father’s care, and Father’s ability to care for the children in an unsupervised setting - lack specificity with regard to conduct on Father’s part that constitutes abuse or neglect. Mother’s charges, that Father returns the children to Mother with poor hygiene, rashes, and bruises and that she believes Father incapable of providing adequate care and support to the children, are not express allegations of abuse and neglect. Poor hygiene, rashes, bruises, and Mother’s opinion with regard to Father’s parental capabilities, without more, do not constitute abuse or neglect. Regarding bruises, Mother does not imply, let alone expressly allege, Father was responsible for the bruises.

(2) The circuit court did not err in changing the custodial periods awarded each parent. Both parties agreed that there were substantial and continuing changed circumstances that warranted modification of the parenting schedule. The court’s judgment is modified, however, to denominate Mother as joint custodian and to reference Mother’s time with the children as custodial periods.

The parenting plan adopted by the Court grants Mother alternating weekends, Wednesday evenings, alternating weeks during the summer, and alternating holidays.  This is “substantial” time for Father, and thus is joint physical custody, not sole physical custody.

(3) The circuit court did not err in allowing evidence of facts that occurred prior to the dissolution of marriage judgment. There is no indication that the court considered the original trial transcript concerning Mother’s previous positive testimony regarding father and even if the court did, it was not prejudicial.

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An action to terminate modifiable maintenance was granted. The case is fact-specific, but deserves reporting simply because of the dearth of appellate cases in which modifiable maintenance is terminated.

At the time of the parties’ divorce (dates not noted in opinion, but approximately 2003-2004), the Husband ran a business which earned him approximately $190,000 annually. The Wife had worked for the business, but that ended with their separation. Her stated needs at divorce were $2,490 per month. She intended to go to school full-time and become self-sufficient thereafter. She requested and obtained $2,000 per month in modifiable maintenance.

Fast forward to 2010 at which time the Wife had graduated from college and gotten a job with the IRS earning approximately $34,000 annually. She had also inherited a half-interest in a piece of real estate worth $63,000 and her residence was paid for and worth $200,000. The Husband filed a motion to terminate the maintenance. His request was granted, and this appeal followed.

Held: Affirmed.  “In determining whether an increase in income renders the prior decree unreasonable, the court may consider a number of factors, including the purpose of the award of maintenance and the current financial needs of the receiving spouse.” Here the Wife’s increased income (from -0- to $3,000 per month), the attainment of her college degree, the acquisition of full-time employment and ownerships of substantial unencumbered assets all indicated her ability to support herself without the need for maintenance. These were reasons sufficient for the trial court to exercise the discretion to conclude the monthly maintenance was now unreasonable.

Reiter v. Reiter, No.74350 (Mo. App. W.D., August 7, 2012), Mitchell, J.

 

Source for Post:  Missouri Bar Courts Bulletin October 2012

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Recent ruling:
TC A Minor Child, by and through JC, Next Friend and JC, Individually v SI
Missouri Court of Appeals, Western District - WD7455

Father appeals from a judgment entered in the Circuit Court of Clay County in an action to establish the paternity of his daughter, T.C.C. Father challenges the trial court's decisions related to custody, visitation, and child support.

AFFIRMED AS MODIFIED.

Where Father was awarded parenting time starting 7:15 a.m. Wednesday with an ending time alternating between 4:45 p.m. Thursday and 4:45 p.m. Friday, half of holidays, and an additional five consecutive days over the summer, the trial court erred in declaring Mother to have sole physical custody in light of the significant parenting time awarded to Father.
 

Though the trial court mislabeled the physical custody awarded in its judgment, it is unnecessary to remand for correction of the decree where this court can simply recognize and clarify that he is a joint physical custodian. 

The question of whether or not a sole custody award to one parent with parenting time to the other parent is truly a sole physical custody award, the question is whether or not the parenting time awarded to the other parent is "significant".  It has been held that a typical every other weekend with one evening per week schedule is "significant".

It is this author's belief that in most situations where the parents share parenting time on some sort of schedule, it is a joint physical custody arrangement rather than "sole custody with visitation"   Care should be taken in the drafting of the parenting plan and the judgment to reflect the proper terminology, as sole custody and joint custody are clearly  very different It would be only in the most restrictive of parenting plans where "sole custody with visitation" could legally exist.

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Recent case: CB v. DB Missouri Court of Appeals, Western District - WD74067

Father requested information concerning Daughter’s college education, and received limited information through the child-support agencies which served as intermediaries between Father and Mother. On March 31, 2010, Father initiated the present proceedings by filing an affidavit for termination of his child support obligation. The circuit court conducted a trial of the matter in April 2011. The circuit court held that Father was entitled to abatement of his child-support obligation during the Fall 2010 academic semester, because he had not been provided with the information concerning Daughter’s college education required by § 452.340.5, RSMo, at the beginning of the semester. The circuit court rejected Father’s arguments that he was also entitled to abatement of his child-support obligations during the Fall 2009, Spring 2010, and Spring 2011 semesters. Father appeals.

REVERSED AND REMANDED.

The Court of Appeals held:

Section 452.340.5 provides for the continuation of child support benefits past the age of eighteen if the child enrolls in an institution of vocational or higher education by the October following their graduation from high school, if certain attendance, academic and notice requirements are met.

Here, Daughter failed to satisfy the requirements of § 452.340.5 in any of the semesters in which the circuit court refused to abate Father’s child support.

In the Fall 2009 semester, Daughter failed to complete twelve credit hours of classes, as required by § 452.340.5. The trial court erroneously held that Daughter was excused from this requirement because she was working at least fifteen hours per week during the semester; the evidence (including Daughter’s testimony) establishes that she failed to meet the fifteen-working-hour threshold. In addition, Daughter’s voluntary withdrawal from one class, which she could have successfully completed but for her withdrawal, cannot be considered “completion” of that class.

With respect to the Spring 2010 semester, Daughter failed to provide Father with copies of her grades for the Fall 2009 semester (which he was entitled to receive “at the beginning” of the Spring 2010 semester), until trial in April 2011. This was too late. In addition, due to her voluntary withdrawal from classes, Daughter failed to complete twelve hours of classes in this semester also.

With respect to the Spring 2011 semester, Daughter failed to provide Father with her course schedule until April 2011. This was not “at the beginning” of the Spring 2011 semester, as required by the statute.

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Recent Case:  JJ v. EJ Missouri Court of Appeals, Western District - WD74148

Adding a spouse to the title of non-marital property, in this case a farm, transmutes separate non-marital property into marital property. Consequently, when Respondent re-titled the property adding his spouse to the title, the farm became marital property. When the parties placed the property into their trust, the property remained marital property.  

In her third point, Appellant contends that the trial court erred in finding the wedding rings were marital property. The Appellate court agrees because there was no evidence in the record to support that the rings were marital property. The only evidence is Respondent’s testimony that he purchased the rings for Appellant, and an inter vivos gift to a spouse is non-marital property.

 

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In Missouri, there are guidelines that the Court must follow in making a child custody determination.  While all child custody determinations must be made in accordance with the best welfare and interests of the child, there is also a statutory and case law framework that guides the court in making the determination.  Note that when parties come to an agreement on custody, most courts take the position that the parents are in a better position to determine what is in their child's best interest, and will generally approve a joint parenting plan (although a joint parenting plan is advisory only, and the Court can make it's own determination in any case-albeit infrequently).  However, when the parents cannot agree on a parenting plan, the Court will decide the case based on the following:

Statutory Factors

1. Wishes of the parents and the proposed parenting plan submitted by the parents;
2. The needs of the child for a frequent, continuing, and meaningful relationship with both parents, and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
3. The interaction and interrelationship of the child with the parents, siblings, and any other person who may significantly affect the child's best interests'
4. Which parent is more likely to allow the child frequent, continuing, and meaningful contact with the other parent;
5. The child's adjustment to home, school, and community;
6. The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
7. The intention of either parent to relocate the principal residence of the child;
8. The wishes of the child as to the child's custodian.

Case law factors:

1. A good and stable home is the most important single consideration in addition to the statutory factors;
2. Stability, including frequent moves and intent to relocate;
3. Parenting skills and primary care;
4. Moral fitness as it relates to the children;
5. Adultery, sexual misconduct, and cohabitation (note however that these facts, in and of themselves, do not necessarily affect a custody decision.  There must be an effect on the child's interests)
6. Homosexuality (although, in and of itself, cannot be a basis for denying a parent custody);
7. Drug and alcohol use;
8. Attempted alienation of the child;
9. Religious beliefs;
10. Custodial preference of the child (although age of the child will affect the weight given, or if considered at all).
11. Any other relevant factors.

A child custody determination is based on evidence that is highly fact specific, and every case is different.  The above factors do not constitute a complete list, and any particular case can be decided on any one or multiple factors, depending on the situation.

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Recent Case: TLD v. JRD Missouri Court of Appeals, Western District - WD73385

Mother appeals from the trial court's amended judgment order of modification retroactively modifying Father’s child support obligation and ordering Mother to pay Father $19,305.00 in overpaid child support accumulated during the retroactive period. Mother claims the trial court erred in calculating the overpayment.

Even if the trial court erroneously characterized an amount that Mother credited Father, in connection with a settlement which led to a reduction in Father's child support obligation in 2005, as an amount "paid" by Father, that error played no role in the calculation of Father's judgment. Mother's suggestion that Father's judgment against her should be reduced by the credited amount constitutes an impermissible collateral attack on the 2005 Modification which fully and finally determined Father's then existing arrearage.

The trial court's determination that Father was entitled to a reduction in his child support arrearage as of the time of trial by an abeyance amount addressed in the 2005 Modification was not against the weight of the evidence.

Father's judicial admission regarding the amount of his child support arrearage as of the time of trial conclusively negated the trial court's ability to find that all arrearages accumulated after the 2005 Modification had been satisfied and paid in full. Thus, the trial court erred in failing to reduce Father's judgment by Father's admitted arrearage.

Held: Affirmed in part, and reversed and modified in part.

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The following post was contributed by guest author Grant Webb, an accounting and accounting law writer for Bisk Education and Villanova University.

 

Forensic Accountants Fill a Unique Niche

Family law and divorce cases are often quite complex. Depending on the number of family members involved, the amount of assets at stake, and the specific circumstances of the case, even the most experienced attorney might need to acquire additional expertise to achieve the best results for the client. In cases where assets may have been hidden, misrepresented, under-valued or mysteriously liquidated, an experienced forensic accountant may provide the expertise necessary to uncover the facts needed so that the case can move forward in an effective manner.

 

While an attorney secures a skill set that allows him or her to build a case and argue effectively on behalf of a client, an attorney’s skills are not designed to address the intricacies mastered by forensic accountants. A forensic accountant’s specialized training and highly developed analytical skills target asset documentation and manipulation. Therefore, a forensic accountant can augment even the best attorney’s cases by providing an added layer of investigation, documentation, and reporting of related facts that may serve to significantly strengthen a client’s case. A Certified Forensic Accountant has completed a course of study that includes an in depth CPA review, work experience in forensic accounting, and training related to litigation and the judicial system which complements the other skills for specific applications such as in divorce proceedings.

 

Attorneys and Forensic Accountants Working Together

With the increase in sophisticated technology over the past decade also comes the dawn of more sophisticated investigative power tools. At the same time, people who intend on hiding assets have also become stealthier. When a marriage with significant assets needs to be evaluated for net worth, the assets are often spread across many different areas. Property, businesses, savings accounts, mutual funds, municipal bonds, antiques, jewelry, and recreation items like watercrafts for example are all items that need to be documented and valued. Anticipating the divorce or other family litigation, one of the involved parties may begin to re-title items, sell off or give away valuable possessions to a close friend or relative for later retrieval, and in general hide investments. While the family or divorce attorney is building the case with a general understanding of these facts and other related details, a forensic accountant can usually retrieve highly detailed evidence to make the case stronger. Drawing connections to see the whole picture is a forensic accountant’s fortè. Working together with a family or divorce attorney, a forensic accountant presents a formidable partner on a legal team where financial wrong-doing is an important topic of the investigation.

 

 

Savvy Clients Keep the Options Open

A complex case requires the expert knowledge of professionals who can secure the best possible outcome for a client. Hiring an attorney who is accustomed to bringing in and working effectively with other expert professionals such as a forensic accountant could mean a more favorable outcome. While cost is always a concern when pursuing legal solutions to disputes, many settlements or court decisions will have long-lasting effects on family members so it is important to be as effective and thorough a possible as the case proceeds. A Certified Forensic Accountant offers a unique skill set to the legal professional and can help provide the experience necessary to help secure critical financial evidence. When choosing a family or divorce attorney to help resolve a complicated dispute, savvy clients make sure that they can keep the option open to bring in other experts, like a forensic accountant or CPA, in order to secure the best outcome possible despite stressful circumstances. There are countless justifications for hiring legal representation of this type but for clients that may not know the upside to hiring a forensic accountant or even know how to hire the right CPA, it's always a good practice to interview or even research these industry professionals to determine the best hire or fit for a client’s needs.

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Under § 452.377, RSMo, relocation of child’s residence requires strict compliance to statutorily required notice before strict compliance with time to file objection to relocation is required. Abraham v. Abraham, No. 31099 (Mo. App. S.D., October 26, 2011), Rahmeyer, J.

A dissolution of marriage was granted to the parties in April 2006. In September 2010, the Mother sent a certified letter of her intention to relocate their child’s residence to Orlando, Florida. The Father did not file an objection to the move until 37 days after receipt of the letter. The Mother asserted that the tardy objection was ineffective to preclude her absolute right to the relocation in accordance with an opinion issued in Baxley v. Jarred, 91 S.W. 3d 192, 199 (Mo. App. W.D. 2002). In Baxley, it was held that an objection to relocation that was not timely filed gave the relocating party an absolute right to relocate and that the only issue left for the court was the appropriate adjustment in parenting time between the parties. The trial court rejected that theory and denied the Mother her request to relocate. She appealed.

Held: Affirmed.“Mother claims that ‘strict compliance’ with the elements of a relocations letter is not required….” The Father asserted that the Mother’s failure to provide known details of the address to which relocation is intended renders her notice effective.

“We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.”

“[T]he notice requirement of § 452.377 must be strictly complied with.” Here, the Mother did not give notice of the actual specific address and mailing address of her new intended residence although she knew it. If one party must be held to compliance with the 30 day rule to object, the relocating party must be held to strict compliance with the notice provisions that trigger that obligation to act.

Concurring Opinion: “Waiver is the intentional relinquishment of a known right.’” In Baxley, neither party complied with the requirements of the statute as to notice and time to object. Yet, they weren’t treated the same in that the failures of the notice to relocate were forgiven while the failure to file a timely objection was not. However, in the instant case they were each given their day in court regarding the relocation. Thus, neither party was prejudiced by such non-compliance.

Rather than require strict compliance with the statute in all aspects here, the opinion asserts that the proper analysis is whether a party was prejudiced by such non-compliance. Thus, in the instant case, neither party complied with the statutory requirements and a full hearing of the relocation issue ensued. That was the proper result, not for failure of strict compliance, but rather because the trial court gave each party full and fair hearing on the relocation issues.

Concurring Opinion #2: There should be no “absolute right” to a default on the issue of relocation when an objection is not timely filed. There should be consideration given to the facts of the case because the welfare of the child is the paramount concern.

Source for Post:  Missouri Bar Courts Bulletin. 

 

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New Case Law: CB v. DB Missouri Court of Appeals, Southern District - SD31614

Notwithstanding the fact that the Missouri case law generally states that tax benefits must go to the custodial spouse unless the trial court expressly finds it unjust or inappropriate to do so, our western district has held that noncompliance with Form 14 directions is not reversible error unless the appellant is prejudiced thereby. Sarwar v. Sarwar, 117 S.W.3d at 171.  Appellate review is for prejudice, not mere error Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. 2009).

 

“Here, Wife does not argue or suggest any prejudice, nor could [the Court] glean any from the scant record that she has provided. In fact, the indication is otherwise. In her post-trial motion, Wife represented to the trial court that her only income during the two-year history of litigation was unemployment benefits, which had expired; that she had been unable to obtain employment; and that her gross income was “zero.” By contrast, Husband was earning an income, and apparently could benefit from the tax exemption, while Wife seemingly could not. A judgment will not be reversed unless an appellant is prejudiced by an error that materially affected the merits of an action. Rule 84.13(b).”

 

Wife did not meet her obligation to show that she was entitled to appellate relief and the judgment was affirmed.

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Recent Ruling: Termination of parental rights requires proof of statutory grounds by clear, convincing and cogent evidence, and proof of child’s best interest by a preponderance of the evidence. In an action to terminate parental rights, the statutory ground of abandonment means six pre-petition months of “a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.” Neglect means continuous failure to provide. The juvenile officer alleged and proved that father had no contact with child for six months before amended petition. But evidence showed that father learned of child’s existence only two weeks before filing of amended petition and, on doing so, attempted to develop relationship. Such evidence is not substantial evidence of abandonment or neglect. 

Missouri Court of Appeals, Southern District - SD31470

The opinion can be read here.

Source for Post:  The Missouri Bar

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Value of a closely-held corporation must be as fair market value and application of a calculation of value via a buy-sell agreement not related to fair market value is error. Wood v. Wood, No. 96218 (Mo. App. W.D., November 29, 2011), Romines, J.

This was an appeal from a dissolution of marriage action. The Husband appealed the decision on several grounds, but it comes down to his challenge of the valuation of his 30% interest in a closely-held corporation. Both parties had an expert testify as to the value. Wife’s expert testified as to value based upon a buy-sell agreement formula that existed between the shareholders. Husband’s expert testified as to his opinion of the fair market value thereof. The trial court concluded that the Wife’s expert had properly assessed value $1.062 million versus $325,000 by Husband’s expert.

Held: Reversed. “Wife’s calculation failed to comply with [the rule that fair market value at time of trial is required because Wife’s expert] does not seek a fair market value or fair market value of [Husband’s interest in corporation.]”

“Furthermore, the formula does not even employ a current appraisal of [Husband’s interest in corporation.] As part of the calculation of present share value, and instead uses the historical value of company in 2007 at $3,000,000 as the starting point.”

“[W]here an expert’s testimony does not attempt to determine fair market value, the trial court simply cannot find it more persuasive and credible than another and rely on such testimony in valuing those shares.”

Dissent: The dissent is based upon the technical failure of the Husband’s point relied on to preserve the issue for review on the basis found to be dispositive by the majority opinion. Consequently, the dissent would deem the claimed error not reviewable.

Source For Post:  Missouri Bar December Edition of Courts Bulletin - Mobar.org

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Administrative child support orders are available for the support of all eligible children, including children of citizens of other countries. Lajeunesse v. State of Missouri Department of Social Services, No. 73477 (Mo. App. W.D., October 4, 2011), Martin, J.

A child was born to a Russian citizen in West Virginia. Father was a Missouri resident and a support order was sought for the child through the Department of Social Services (DSS), which established paternity and Father’s financial responsibility for support. Mother and child now live in Russia. The Father filed a petition for judicial review and the trial court found that Department of Social Services was without jurisdiction to enter an administrative order requiring Father to pay child support. Upon Father’s motion the trial court overturned the administrative order. DSS appealed.

Held: Reversed. “. . . Father argues that unless a recipient is a resident of the State of Missouri or another state, the recipient is not eligible for child support services.”

The applicable sections of the statutes, § 454.425 and 454.400, do not provide for child support relief for only United States residents. “By its plain terms, § 454.400.2(14) is broad, requiring child support services to be provided to any other child for whom services are applied. This is in keeping with § 454.425, which also broadly permits services to be provided to all children, custodial parents, and persons entitled to receive support. A harmonious reading of § 454.425 and 454.400.2(14) indicates that the legislature intended to authorize and require DSS to provide services to any child for whom services are applied. This broad and unrestricted directive is not, by its terms or by implication, limited to residents (or citizens) of the United States.”

An agreement that maintenance will terminate “only” upon death excludes application of § 452.370 for termination of maintenance upon remarriage. Simpson v. Simpson, No. 91498 (Mo. banc, October 4, 2011), Fischer, J.

The parties were divorced in 2005. They entered into an agreement by which the Husband would pay the Wife $12,000 per month in non-modifiable maintenance for 15 years. Said maintenance was to “terminate prior to the expiration of said 15 year period only in the event of the death of either party.” In 2009, the Wife remarried. The Husband filed a motion to terminate maintenance on the basis of her remarriage. The Wife responded by filing a motion to dismiss his claim, which was granted. The Husband appealed, and the matter ended up in the Missouri Supreme Court to address the applicability of § 452.370.3, RSMo, that provides that maintenance terminates immediately upon Wife’s remarriage unless otherwise agreed in writing or expressly provided in the judgment.

Held: Affirmed. “The problem with the Husband’s argument is that he and Wife agreed in writing in the separation agreement that maintenance would terminate ‘only in the event of the death of either party.”

“[T]he use of the word ‘only’ in the separation agreement is sufficient to overcome the statutory presumption of § 452.370…”

Generally, retained earnings of closely-held corporation are corporate assets and not marital property and distributions to liquidate corporation in exchange for non-marital stock are not marital property. Short v. Short, No. 95663 (Mo. App. E.D., October 25, 2011), Sullivan, J.

This was an action for dissolution of marriage in which the parties had a prenuptial agreement. The meaning of the agreements terms were in dispute, especially regarding whether it provided that earnings derived from separate property had been excluded from marital property. Both parties appealed. As a side note, it is interesting that the parties met four days before the wedding to discuss the terms of the prenuptial agreement in detail. A draft of the agreement was first presented to the unrepresented Husband the day before the wedding. The trial court’s determination that the agreement should be upheld as valid was affirmed despite the short amount of time noted herein.

The trial court found that the agreement did not expressly exclude as non-marital property the income earned from that non-marital property during the marriage. During the marriage the Wife received several million dollars in liquidating distributions in exchange for cancellation of her non-marital stock interest in a closely-held corporation. The trial court found those distributions to be marital property.

Held: Reversed in part as to the character of the corporate liquidation payments in exchange for non-marital stock. “Evidence presented at trial showed that approximately 97% of (corporation’s) assets at the time of (corporation’s) liquidation were comprised of …̔ retained earnings.’ Generally, retained earnings of a corporation do not constitute marital property. Hoffmann v. Hoffmann, 676 S.W.2d 817, 827(Mo. banc 1984); Craig-Garner v. Garner, 77 S.W.3d 34, 38 (Mo. App. E.D. 2002). Retained earnings and profits of a corporation are a corporate asset and remain the corporation’s property until severed from other corporate assets and distributed as dividend. Hoffmann v. Hoffmann, at 827; Craig-Garner v. Garner, at 38.”

Moreover, “[t]he money Wife received as liquidating distributions from the dissolution of (corporation) was not income earned by her separate stock; rather, it was liquidated capital distributions received in exchange for, and in cancellation, of her stock in (corporation), which was her separate property.”

Source for Post:  November issue of Courts Bulletin.  A publication of the Missouri Bar

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Missouri statute requires that a parent relocating with a child give notice to the other parent. Receipt of notice starts the 30 day time limit to file a motion to bar the relocation. A deficient notice does not, alone, provide grounds to modify custody and visitation. In this case, the notice was deficient, but the motion was timely, so no prejudice resulted. The Record includes evidence to support findings on child’s best interest so Court of Appeals defers to circuit court.

Henry v. Henry Missouri Court of Appeals, Southern District - SD30897

Source: Missouri Bar

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Spousal maintenance, formerly known as alimony, can be awarded to either spouse in Missouri divorces.  To support the award, the Court must find that the spouse seeking maintenance (1) lacks sufficient property, including marital properly awarded, to meet their reasonable needs, and (2) the spouse is unable to support themselves through appropriate employment OR is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.  The spouse seeking maintenance must be able to demonstrate a need for it, and maintenance is not awarded as a form of compensation for breach of the "marital contract".

There is no set formula for the calculation of maintenance, as in some other states, and it is determined on a case by case basis.   Duration of the marriage is an important factor also in cases where one spouse forgoes the development of a career while the other is free to advance a career, and maintenance is awarded more often in marriages longer than 10 years, but can be awarded in a marriage of any duration.  Ability to pay and earning capacity are also important factors, and the party receiving maintenance has an affirmative duty to seek employment.

Unless the court can determine an exact date when the receiving spouse will become self supporting, court ordered maintenance will have no termination date, and it must later be terminated by way of motion by the paying spouse.  However, the parties can agree to maintenance for a set term, but that generally will be non-modifiable. 

Maintenance, whether open-ended or non-modifiable for a set term, will still terminate upon remarriage of the receiving party or the death of either party, unless the decree specifically states that the award will survive either death or remarriage.  Maintenance that is open-ended can be modified or terminated upon showing of a substantial and continuing changed circumstances, including the financial resources of both parties, contributions of a new spouse or cohabitant, and the earning capacity of an unemployed party.

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www.courts.mo.gov/file.jspMissouri Constitution provides subject matter jurisdiction of circuit courts. The Uniform Child Custody Jurisdiction Act provides comity among states and determines which state is the most appropriate forum for seeking remedy. The Circuit court should make findings under those provisions. Rule and statute describe minimum contacts necessary to make a person subject to circuit court jurisdiction. Under those provisions, “liv[ing] in lawful marriage within” Missouri is more than passing through while traveling and appearances to enforce foreign orders. “It is not necessary to stand on your jurisdictional challenges and refuse to participate in the proceedings to preserve your objections to jurisdiction.” Circuit court lacked personal jurisdiction to render appellant liable for child support and marital debts.

The Court held as follows:

(1)The circuit court erred in asserting personal jurisdiction over wife because she and Husband never lived in lawful marriage in the State of Missouri. The circuit court lacked jurisdiction to subject her to an in personam judgment for child support and division of marital property (not within the State). The circuit court, therefore, erred in ordering Wife to pay child support in the amount of $278.00 per month and to pay certain marital debts. The circuit court did, however, have jurisdiction over the status of the marriage and could dissolve it.

(2) The Circuit Court of Clay County had the authority to make the child custody determination in this case under the UCCJA. The record established that the only other state that would have jurisdiction over this matter refused to assert jurisdiction and declined to exercise jurisdiction because Missouri was the more appropriate forum.

(3) The factual record established that the circuit court had the authority to proceed under the UCCJA and to determine the child custody issue. Case remanded to Circuit Court for further proceedings

The entire opinion can be read here

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Annulment in Missouri is applicable to two distinct categories of challenged marriages:  Those that are void and those that are voidable.  The distinction is that a void marriage is always a nullity, whereas a voidable marriage is valid until a judgment is entered declaring it void.  The Court's of Missouri have declared a strong public policy in favor of marriage, and a presumption in favor of marriage which is one of the strongest presumptions under the law.  This means that in order to get an annulment, the moving party must show "strong, distinct, satisfactory, and conclusive" evidence to support the claim.  In the overwhelming majority of cases, dissolution is the appropriate method to dissolve the marriage rather than annulment.

Grounds for Annulment include:

• Common law marriage
• a marriage where one party is under 15 years old (without judicial consent)
• Marriage between related persons (to the degree prohibited by statute)
• Marriage where one party lacked mental capacity, including feeble mindedness, insanity, intoxication, and unconsciousness
• A marriage where one party consented due to duress
• A marriage between two persons of the same sex
• A bigamous marriage
• Fraud, provided that it is essential to the marital relationship, such as sexual impotency or failure to disclose a sexually transmitted disease.   A misrepresentation in and of itself  is not sufficient.
• Lack of assent

 

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Under Missouri Law, certain property is considered to be non-marital, and not part of the division of the marital estate in a divorce proceeding.  Non-marital property includes property:

1. Acquired before the marriage;
2. Acquired by gift or inheritance;
3. Acquired in exchange for property acquired by 1 and 2 above;
4. Acquired after a decree of legal separation;
5. excluded by written agreement (pre or post nup)

In the case of an increase in value of a non-marital asset described above, the general rule is that the increase in value is also non-marital.  The exception to the rule occurs when marital assets, including labor or marital income, contribute to the increase in value.  The Court of Appeals has said that marital effort, labor , or services, will entitle a spouse to a proportionate share of the increase in value of the separate property, but only after "comprehensive substantiation", including proof of:

1. a contribution of substantial services;
2. a direct correlation between those services and the increase in value;
3. the amount of the increase in value;
4. performance of services during the marriage; and
5. the value of the services, the lack of compensation, or inadequate compensation received.

There must more than just services provided, but a connection between valuable services provided and the increase in value of the asset.  Note that income received during the marriage by either spouse is considered a marital asset, so if any income of either spouse is contributed to the asset, it is considered a marital contribution.  Likewise, in terms of a non-marital business, employment or labor for no or reduced salary is also considered a marital contribution.

 

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There are many ways that the income tax dependency for children in divorce can be handled, although most of them are not supported by the law.  If the parties are in agreement, then nearly any method of claiming the children can be used, including alternating years, splitting the deductions between the parents (in the case of multiple children), allowing the non-custodial parent to claim the children provided that child support is current, a combination of these, or any other method that the parties can come up with.

However, under Missouri law,  the custodial parent is entitled to claim the children for tax purposes each and every year, period.  So unless there is an agreement otherwise, this is what the Court will order.  However, regardless of any agreement or Missouri court order, federal income tax law requires a child to reside with a parent at least 50% of the time to be claimed as a dependent. So, if the parties have agreed to something else, such as alternating years, and the non-custodial parent has the children less than 50% of the time, the Internal Revenue Service (or Department of Revenue) can reject the claimed dependency notwithstanding the court order, as Missouri family courts do not have jurisdiction over the IRS or the power to alter federal law.  The only remedy would then would be for the parties to return to state court to seek reimbursement for the dollar value of the claimed dependency from the other parent, which the Court may not even entertain. 

So the general rule would be that the custodial parent gets to claim the children each year, unless an agreement is reached otherwise. But the word of caution on agreements (particularly for the non-custodial parent), is that both parties have to follow it, or it can be rejected by the taxing authority with the only possible remedy being a return to state court.

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The Circuit Court does not have authority to divide assets that are not owned by either spouse in a dissolution of marriage.  In a recent Missouri case, the trial court entered a judgment that divided certain trusts where the children were the sole beneficiaries.  Since the parties to the case did not have any interest in these assets (as they belonged to the children), the Court could not make any division.  The same would also hold true for property titled in the children's (or another persons) name, such as a vehicle or bank account. 

To view this recent opinion, click here.

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While Missouri courts normally follow the “American Rule” regarding legal fees – that each party is responsible for his or her own costs – Missouri dissolution of Marriage statutes give the court the discretion to order one party to contribute to the other party’s fees. Specifically, Section 452.355.1 provides:

 

Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney's name.

 

 

The court is always required to consider the financial resources of each party before deciding on a request for attorney’s fees.  While the court must consider the financial resources of each party, a spouse is not required to forego a claim for attorney's fees merely because assets on hand are available to make payment.

 

In most cases, attorney fees are not an issue, and usually judges are reluctant to award attorney fees. However, when the issue does arise, the conduct of the parties during the litigation and how the judge perceives the parties are usually just as important as financial resources in determining the award.

 

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A dispute that Missouri family law attorneys see on a regular basis is the sharing of children’s extracurricular activity expenses. Under Missouri law, the Court can require parents to share certain expenses, over and above the monthly child support amount. Included in these expenses are extracurricular activities, educational expenses, uninsured medical costs, and any other extraordinary costs. The Court of Appeals has recently held that, at least to extracurricular activities, and presumably to education and other expenses, the order must have “some limitation as to the scope of activities and resulting expenses or a cap on the total amount of [the parent’s] financial responsibility…to make the order sufficiently certain to be enforceable.”

This means that an order cannot simply require the parents to share a certain percentage in “all extracurricular activities”, particularly when one parent is given the discretion to make all decisions relating to those expenses. The Court noted that “[t]he term “extracurricular activities” is itself extremely broad. Not only is the range of activities that might qualify hard to define, each activity might include a number of different categories of expense (i.e. lessons, camps, equipment, uniforms, or travel). The Court held “that under the facts of this case the motion court should have used limiting language to define the scope of the activities covered by the order or, in the alternative, placed some sort of cap on the extraordinary expenses that Father had to pay for Daughter’s extracurricular activities, especially since it gave Mother sole discretion to decide which activities would occupy Daughter. A $200 monthly limit was imposed.

 

It is worth noting, though, that an agreement that is made for the sharing of expenses when the nature and extent of the expenses is known at the time is still enforceable regardless of limiting language, since the paying parent would have at least a general idea of what they were on the hook for financially

 

To see the entire opinion, click here.

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In a recent decision by the Missouri Court of Appeals, clear, cogent and convincing evidence supported a finding of neglect in protecting the child, maintaining the household, and supervising the child.  "If a parent is unable to pay for all of a child's financial needs, he or she has a duty to provide as much as he or she reasonably can." A Father’s occasional support for child does not outweigh clear, cogent and convincing evidence of financial neglect through reluctance to work. The Circuit court’s determination of child’s best interests is subject to review for abuse of discretion. The Guardian ad Litem’s opinion is not controlling but merits “respectful consideration."

Missouri Court of Appeals, Southern District - SD30632

Source for Post:  Missouri Bar

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The Circuit court ordered re-financing of the house after divorce.  At the hearing on a subsequent contempt action, the circuit court found that failure to comply was not contemptuous because party did not have the financial ability to comply with the order. Record supports such finding.  The court stated that  "A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation “The alleged contemnor then has the burden of proving that person's failure to act was not due to her own intentional and contumacious conduct."

The second point on appeal was the child custody modification. The court stated:

"'Under § 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to [that] decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child."A motion to change from joint custody to sole custody requires a showing that the change in circumstances is substantial.""[T]he parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification."Thus, in ruling on a motion to modify from joint legal to sole legal custody, the trial court must first determine whether the evidence establishes that a substantial change has occurred in circumstances of the child or the child's custodian; and, if so, it must then consider whether the best interests of the child would be served by modifying custody.

A Substantial change in circumstances includes parents’ failure to communicate for eight months.

The entire opinion can be read here.

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Similar to other states, Missouri is a modified no-fault divorce state. However, there is some misconception out there about what this actually means for divorcing parties in Missouri. Modified no-fault divorce means that a party does not have to prove that their spouse committed some kind of misconduct, such as adultery, abandonment, financial, etc., in order for the court to grant the divorce. All that has to be proven, with regards to grounds, is that there is “no reasonable likelihood that the marriage can be preserved, and that the marriage is irretrievably broken”, which is basically the familiar “irreconcilable differences”.  If that is proven, or as is often the case, agreed to in the filings, the court will grant the divorce (assuming jurisdictional and procedural requirements are also met). 

However, no fault does not mean that conduct is not relevant.  Although conduct does not need to be proven to actually get the divorce, conduct, or misconduct, can have a bearing on all aspects of the case.   Conduct can affect how the court divides the property, awards spousal maintenance, awards attorney’s fees, awards custody, parenting time, and to some extent child support. Although there is usually a preference for joint custody and equal property division, “no fault” does not mean that that will be the case, and “no-fault” does not mean that everything will end up equal.  The court has to look at other standards for each particular issue in the case, and will make orders accordingly as to those issues.

It is also not required that a spouse “grant” the other spouse the divorce, however it is possible that a party could try to prove that the marriage was not actually broken and could be preserved. My thought is that if spouses are actually to the point of litigating in court, the court is probably going to find that the marriage is broken. So, modified no fault may in reality mean actual no fault, but there is still that standard of proof in all cases.

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The Missouri Divorce and Family Law Blog was just recently listed as a top 50 divorce blog by mastersincounseling.com. Abby Nelson, at the site, posted a great compilation of blogs, covering divorce and family law areas such as: Her side, his side, state specific, issue specific, children’s issues, coping, age specific, moving forward, and general information. 

I encourage anyone going through divorce, or a legal family issue, to check out the post, as this is a great resource that puts a wide variety of information in one place for easy navigation. The entire list can be read here.

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The Missouri statute that mandates the continuation of child support after age 18 if the child attends college was amended in 2007, and provisions were added that are somewhat contradictory. In a recent ruling by the Missouri Court of Appeals, the Court clarified the statute, as well what will cause a child to fail to meet the credit hour requirements of the statute.

Section 452.340.5 RSMo states: If when a child reaches eighteen, . . . [i]f the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school . . . and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever first occurs. . . .  

 

The statute goes on to provide that "[w]hen enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement." 

 

The case law until the statute was amended clearly held that a child must enroll and actually complete 12 hours of credit, and failing grades in any class could cause the child not to meet the credit hour requirement as no credit is given for a failing grade. However, the court has now clarified that the prior case law, specifically the Lombardo line of cases, is effectively overruled and now, with the addition of “failing half or more of his or her courseload” language, a failing grade no longer triggers a failure to comply with the credit-hour requirement, provided that the child does not fail half or more of their classes (if enrolled in at least 12 hours). The Court stated:

 

“Where a student voluntarily withdraws from a class prior to its completion, he or she clearly fails to meet the requirements of the statute that the student complete the class [12 hour requirement]. On the other hand, where a child receives a failing grade in a course, provided the child does not fail half or more of his or her classes, the child is deemed to satisfy the requirements of § 452.340.5.3” 

 

Interestingly, in the recent case, the child actually withdrew from the class instead of failing, but the evidence showed that the child was withdrawn by the teacher and not the student himself as a “favor” to avoid receiving a failing grade, so the Court deemed that a failing grade and treated it as such under the statute.  Outside of this exception however, it seems that a typical withdrawal will fall under the “completion” requirement of the statute.

 

The entire opinion can be read here

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In a recent ruling by the Missouri Court of Appeals for the Southern District, a division of property and debt where the Wife received 93% of the assets and 27% of the debts, and the Husband received 7% of the assets and 73% of the debt was reversed and remanded to the trial court for further proceedings.

It is typical in a majority of cases for the trial court to divide property and debt equally. However, the Court is not required to follow a rigid formula for property division and is not required to divide the property equally. The division must be “fair and equitable” to the parties. This means that the court has a great deal of discretion when dividing property and debts, but there must be sufficient evidence to support a disproportionate division as being fair and equitable. In determining the property division, the court must consider the economic circumstances of the parties, contributions during the marriage, the value of non-marital property, conduct during the marriage, the custodial arrangement for the children, and other factors.

In the recent case, the Court looked primarily at the conduct during the marriage, and the trial court had found that physical abuse and verbal threats had occurred which supported the disproportionate division. However, there must be evidence to show the additional financial, emotional, or other burdens placed on the aggrieved spouse due to the conduct. It is not appropriate to “punish” a spouse’s marital conduct by way of disproportionate property division, and conduct is the only factor that must be considered.

In this case, there was evidence of the misconduct, but no evidence as to how it caused additional burdens or stress on the other spouse or the marriage, financial or otherwise to support the grossly disproportionate division. The case was remanded to the trial court for further proceedings to make those findings.

SD29991-  Missouri Court of Appeals for the Southern District of Missouri

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In today’s turbulent economic climate, where job losses or reductions in income are frequent, it is critical to immediately deal with a child support order upon any significant change in income. Failure to act quickly can lead to an even greater financial disaster.  Here’s why:

• In Missouri, a child support order, regardless of whether it is administrative (Family Support Division “FSD”) or judicial (through the Courts), remains in effect until modified. This means that even if income is reduced or lost, the obligor is liable for the child support under the order, regardless of income, until a formal modification proceeding takes place. 
• It is critical to file a motion to modify immediately upon an income change as the Court only has jurisdiction to go back and adjust child support back to the date of filing. Once it is filed, the obligor can then seek temporary immediate relief from the original order, and avoid the accumulation of child support arrearages.
• Failure to modify quickly can lead to the accumulation of child support arrearages that cannot be erased, which in turn can result in civil contempt, criminal non-support, suspension of driver licenses, interception of income tax refunds, additional payments to cover the past due child support, and other unpleasant results.
• It is not required that a person wait three years to modify the child support order, even if it is an administrative order. That is just the time interval in which the FSD may, on its own, review an order for modification. A child support order is modifiable at any time by either party.
•  It is always better to consult an attorney for a judicial modification rather than going to the FSD for an administrative modification. The court has power over the FSD and can modify any administrative or judicial order much more quickly, and can issue temporary orders for relief.
•  Once a judicial motion to modify is filed, even if the obligor stops paying child support or reduces the amount paid, the party will avoid contempt charges and administrative enforcement issues, and the Court can sort out what the new child support amount should be and adjust it accordingly back to the date the motion was filed. This may result in some child support arrearages, but nowhere near what there could be without the modification on file. At this stage of the game, damage control is crucial.
• The modification action can result in attorney fees and case costs, but those typically are minimal in comparison to the savings in child support, and are almost always a wise investment.
• Care should always be taken, however, before engaging in a child support modification, and it is not a good idea to do so without consulting an attorney. Modification cases can be full of possible land mines, so care and experience are required to keep a bad situation from getting worse.

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In a recent decision by the Supreme Court of Missouri, the Court held that a spouses contribution to otherwise separate property creates a marital interest that can be divided by the Court.  In Missouri, property that was owned prior to the marriage is generally considered to be separate, non-marital property.  Separate property is awarded to the spouse who owns the property, and marital property is divided by the court in some ratio, very commonly 50/50.  There are exceptions to this rule of course, including, but not limited to, source of funds, transmutation, and marital contributions.

In the recent decision, one spouse owned a business with a value of $20,000 at the time of the marriage, and during the course of the marriage the value of the business increased to around $500,000.  The other spouse never had legal title or a legal interest in the business, but made contributions to the business, including reducing a substantial amount of debt, acting as a guarantor and corporate officer, conducting all bookkeeping and corporate banking, managing the office, introducing new products, making capital improvements, and working as an employee. 

The trial court found that these contributions created a marital interest in the property, and the Supreme Court agreed and affirmed the equal division of the equity in the business under the rationale that marital labor, effort, or services result in a marital interest in the increased value of a spouse's separate property if there is proof of: (1) a contribution of substantial services; (2) a direct correlation between those services and the increase in value; (3) the amount of the increase in value; (4) performance of the services during the marriage; and (5) the value of the services, the lack of compensation, or inadequate compensation. 

The court found that all these requirements were met and upheld the decision of the trial court.  The full opinion can be read here.

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Generally, in Missouri child support terminates when a child dies, marries, enters the military, becomes self supporting, or turns 18. However, child support can continue after age 18, and all the way to age 21, if the following requirements are met:

If the child is enrolled in and attending high school when he or she turns 18, then child support will continue through the completion of the high school program or age 21, whichever first occurs.

If the child is enrolls in an institution of vocational or higher education (college) by October 1 following graduation from high school (or completion of a GED program), the obligation for child support can continue until the child completes the program or turns 21, whichever occurs first. However, the child must enroll for and complete (pass) at least twelve hours of credit each semester, not including the summer semester, and achieve grades sufficient to re enroll.  The credit hour requirement is reduced to 9 if the child is employed and working at least 15 hours per week.

To remain eligible for continued child support, at the beginning of each semester the child must submit to each parent a transcript which includes the courses enrolled in and completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course. If the child fails to comply with this requirement, the paying parent can motion the court for an abatement (temporary termination) for the particular semester. However, if the non-custodial parent makes a formal request for the required documents, the child must produce them within 30 days or the child support can be permanently terminated.  Also, either parent or the child can ask the court for support to be paid directly to the child.

Under the law, an "institution of vocational education" means any post-secondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any community college, college, or university at which the child attends classes regularly.

Note that a modification or termination of child support under any of the above scenarios is not automatic, and the parent wishing to modify or terminate must do so by filing a motion with the Court.

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As a practicing family and bankruptcy attorney, I consistently run into cases where people are dealing with both a divorce (or other family law related matter), as well as a bankruptcy.  This is because, many times, one is the cause of the other (this works both ways), and the cases often go hand in hand. That is probably no surprise considering the current economic climate, and if this applies to you, believe me, you are far from alone. Check out the numbers:  

Bankruptcy filings in the federal courts rose 31.9 percent in calendar year 2009, according to data released by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2009, totaled 1,473,675, up from 1,117,641 bankruptcies filed in 2008.

Filings have grown steadily since 2006, when bankruptcy filings totaled 617,660, in the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. An historic high in the number of bankruptcy filings was seen in 2005, when over 2 million bankruptcies were filed just before BAPCPA took effect.

Filings by Chapter
In 2009, filings rose under Chapters 7, 11, 12 and 13 of the U.S. bankruptcy code.

·       Chapter 7 filings totaled 1,050,832 up 41 percent from the 744,364, Chapter 7 filings reported in 2008.

·       Chapter 11 filings rose 50 percent to 15,189, up from the 10,147 filings in 2008.

·       Chapter 13 filings were 406,962, up 12 percent from the 362,705 filings in 2008.

·       Chapter 12 filings totaled 544, up 58 percent in 2009, compared to 345 Chapter 12 bankruptcy filings in CY 2008.

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Child support in Missouri can continue after the child turns 18, and until 21, if the child is attending a post high school education program, provided that several requirements are met.  (See RSMo section 452.340.5 below in the extended post).   One such requirement is that the child be continuously enrolled in the education program. A recent ruling from the Court of Appeals held that temporary breaks during the education, in this case a vocational program, do not violate the continuous enrollment requirement. The Court stated that the statute clearly contemplates a reasonable semester-long break, which is the summer break in a traditional college schedule, from post-secondary schooling. The statue does not require a post-secondary student to attend school for over a year without a break, or until 21 with no break whatsoever.

In the recent case, the student was attending a vocational program that had a course schedule in 60 week blocks (a year and a few months), and the non-custodial parent attempted to terminate the child support and emancipate the child when the child took a 10 week break, not enrolling in the next session immediately after the previous one. The trial court agreed and ordered the child emancipated, but the Court of Appeals reversed, stating that a child should not have additional burdens placed on him or her simply because they attend a vocational program rather than a traditional college.  See below for the complete text of the relevant statute.

Continue Reading...

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In a recent termination of parental rights case, the Court stated that statutory grounds of abandonment, neglect, and unfitness require clear, cogent, and convincing evidence. The Incarcerated parent’s diligent efforts at maintaining contact with child refuted such allegations. The “Child may suffer from Father’s absence, but getting in trouble before he knew about Child is no proof that Father now wants no relationship with her.” Failure to send money from 28¢ per day wages was de minimis. Incarceration does not raise the presumption of unfitness. The child’s best interests require only preponderance of evidence, but the issue never arises until statutory grounds are established. 

The entire opinion can be read here.

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In cases involving children, the Court must, either by agreement or by trial, set up some sort of custodial arrangement for the kids involved. There are many options available, all of which fit under a just a few legally recognized categories. There are as many if not more “definitions” of custody floating around out there that don’t actually mean anything legally. People usually have at least some idea of what it is that they are seeking in their minds, but they have trouble defining it. So here we go with a little Child Custody 101 to assist those with their initial case preparation:

Legal Custody. This is one of the two types of custody that must be determined by a Missouri Court in all cases. The legal aspect of custody means decision making and parental authority, basically. It means having the legal right to make (and participate in) any material decisions affecting the children.  Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers are included in the model parenting plan, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference is for joint legal custody. 

Physical Custody. This is the second aspect of custody that must also be determined. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly, however, and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, 3 day/4 day, 5 day/2 day, 50/50, open ended, or whatever other schedule is appropriate for the case. Just as a note, in a 50/50 joint physical parenting schedule, reduced child support is still usually paid in some form or another.

Joint Custody. As discussed above, this is the preferred arrangement and will usually be awarded unless a physical or emotional danger to the child is demonstrated. The Court has to determine whether joint custody is appropriate as to both the legal and physical aspects of custody.

Sole Custody. This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent  being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Also, as many times as I have seen it, there is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition.

Split Custody.  This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.

Full Custody. There is no definition of Full Custody in Missouri and it has no legal significance.  When referring to this, people are talking about some combination of the above types of custody.

Primary Custody. This is no longer a legal definition in Missouri.   Now it is called “residential address for education and mailing purposes.” It usually means the home where the children reside for the greater amount of time, and the home that is in the children’s school district. The parents are supposed to be equal so they are no longer referred to as the primary parent and the lesser parent.

Visitation. This is the time where you view the body before a funeral.  So, if you are talking about your kids, call it something else, like “parenting time”.

Hopefully, this helps to clarify a little bit, but when it comes down to it, it is still just a bunch of words on paper. Put the children first, focus on what is best for them and what will really work with your family, and don’t get too wrapped up in the terminology.  

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The Kansas Missouri Lawyers Blog had a great post recently discussing a recent Missouri ruling regarding the termination of maintenance (Alimony) payments when a former spouse remarries.  The complete article is as follows:

The Missouri Court of Appeals recently held that absent an express agreement otherwise maintenance (alimony) payments terminate upon the recipient’s remarriage. The Court went on to hold that the use of the word “only” was insufficient to show this express agreement. See the opinion here.

In this case, husband and wife divorced in October of 2003. The judgment included a provision requiring the husband to pay his former wife periodic, modifiable maintenance of $500 per month. This maintenance arrangement was later amended by the parties. As part of this stipulation, the parties stated that “The maintenance obligation herein should terminate upon [the wife's] death.” The lower court’s modified judgment setting forth the stipulation stated, “Said maintenance obligation shall only terminate upon the death of [the wife] or September 30, 20011, which occurs first.” (emphasis added).

The wife remarried thereafter, and husband filed a motion to terminate his maintenance obligation. The Court noted that Section 452.370.3 provides in relevant part, “Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to pay future statutory maintenance is terminated upon the death or either party or the remarriage of the party receiving maintenance.” Based on its interpretation and judicial precedent, the Court held, “[I]n order to rebut the statutory presumption that maintenance terminates upon the receiving spouse’s remarriage, a dissolution decree must expressly refer to the receiving spouse’s possible future remarriage, and must expressly provide that maintenance payments shall continue beyond that contingency.”

Thus, at least in Missouri, parties to a divorce, working with their attorneys, must carefully draft separation and maintenance agreements to capture the parties’ wishes. In particular, if the parties wish that maintenance payments will continue indefinitely or for sometime after the recipient’s remarriage, the parties must state this fact by expressly referencing remarriage and describing its consequences.

Thanks again to the Kansas Missouri Lawyer's Blog, a great legal resource for people in the Kansas City area, for this case law update.

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I can’t think of how many times that I have had a client tell me, regardless of what the issue is that is in dispute, that the opposing party is “just worried about money” or that it is “all about the money” for him or her, and that is their sole motivation in the case. Or maybe it is the other way around. My usual response is “isn’t it always?” There are so many financial aspects of divorce that have to be balanced that if parties aren’t careful, they can end up in a big money mess. Here are a few of the big ones:

1.       2 households instead of one: Before a couple or family divorces, they live in one residence with one set of bills and expenses, paid by however much money the couple/parents bring in. Upon divorce, the same level of income still exists, but now there are two mortgages/rent, two sets of utilities, two sets of grocery bills, two car payments, relocation expenses, first and last month’s rent, and so on. Basically, double or so the expenses on the same income.  It is not hard to see how difficult this is in and of itself.

2.       Debts. These days, many families are just a paycheck or two away from real trouble with credit cards and other unsecured debts, and if there are significant debts involved in the divorce, a real challenge exists. Sure the court can divide the debts and assign liability to each spouse, but it doesn’t do much good if the net marital estate is significantly reduced or eliminated by the debt. A divorce is a separation of financial livelihoods, and when possible, it is a good idea to use assets in the marital estate to reduce or eliminate debt before dividing assets. The less debt after the divorce the better for both parties, even if on paper one spouse is supposed to be responsible for it. It is a future fight or bankruptcy filing waiting to happen.

3.       Child Support: Quite simply, nobody is happy with it. If you have to pay it, it is going to be perceived to be too much, and if you are receiving it, it is perceived to not be enough.  In Missouri child support is largely a mathematical calculation based on incomes and other expenses, and to some degree it is what it is.   But regardless, it another factor affecting the same level of income pre-divorce, and it will never make a party “whole” or maintain a pre-divorce standard of living.

4.       Maintenance: Although there is no mathematical formula the same holds true as does for child support, it is probably both too much and not enough,  and it is still going to have to come out of the same pot of money.  Unless the parties are very well off financially to begin with, to expect the same standard of living pre-divorce is usually unrealistic. Although appropriate in some cases of long marriage, large disparities in income, or other factors, maintenance in Missouri is awarded in a small percentage of cases.

5.       Health Insurance: Regardless of your politics on the issue, health insurance is expensive and upon divorce usually a former spouse cannot remain on the other spouse’s health insurance. So, unless both parties can get affordable health insurance, if such a thing exists, then this can be a big financial factor that likely may only have a handful of undesirable solutions.

6.       Attorney fees and case costs: On top of all of this, the divorce is a direct expense in terms of attorney fees and costs associated with the case. If the case is contested, then the total cost on the family is the sum of both spouses total investment in the case. Attorney fees are not usually awarded, which is all the more reason to try to approach the case in an informed and rational way, and try to keep costs and conflict down. The higher the conflict, the higher the cost every single time.

There are of course, other issues particular to certain cases, but regardless of how extensive the list may be, the bottom line is that divorcing spouses need to be smart and rational about how to separate financially and view their situation in a realistic way. Otherwise,  financial disaster in one form or another, certainly awaits.

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In a recent ruling by the Missouri Court of Appeals, in a custody modification proceeding, the trial court’s modified parenting plan delegated the authority to make all medical, educational, and extracurricular decisions for one of the parents’ two children to her “team of doctors.” The Court held that these provisions of the plan are too vague and indefinite to be enforceable in that the phrase “team of doctors” is not sufficiently definite and specific. Provisions in a judgment should be definite as indefinite provisions are unenforceable. The judgment must be sufficiently certain to be susceptible of enforcement in the manner provided by law without requiring external proof.

Although not specifically held, it was noted that  452.375.5(5)(a) allows a court to grant custody to a third party when it finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child. However, to do this, the court must make that third person a party to the action.  However, parents who share joint legal custody of a child or children can agree to designate a third party as a tie-breaker to resolve individual issues upon which they cannot agree, and such an arrangement does not violate section 452.375.1(2).  In this case, the “team of doctors” were not made a party to the case, and the modified parenting plan was against the weight of the evidence in that the parents did not intend to delegate to the team of doctors their authority to make educational or extracurricular decisions for their daughter.  

The entire opinion can be read here.

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In today's highly mobile society, is is not uncommon at all for one parent to desire to relocate to another city or state.  While Courts recognize that a parent cannot realistically be confined to one geographic location, the greater the distance between the parents, the more difficult it can be to effectively exercise a joint physical custody arrangement.  Courts routinely have to make difficult decisions that will heavily impact the child's relationship with a non-custodial parent. 

When determining whether to allow children to relocate, the decision is made on a case by case basis, and there is no hard and fast rule.  The Court is required to consider whether the move is made in good faith and  will serve the best interests of the children, and the the court looks to the enumerated factors in RSMO 452.375.2, as in any custody proceeding.  Whether or not the children would benefit economically, socially, or educationally are also considerations, but economic benefit does not have to be shown.

In a recent ruling from the Court of Appeals, a finding prohibiting the relocation was overturned, based on evidence of Mother’s history as primary caregiver, careful provision for children’s needs including time with Father, Father’s child support arrearages and criminal offenses, as well as other factors.  The Court found that, even though the Father and other immediate family would have substantially less time with the children and the children would be moved to another city and another school, the move was in the children's best interests.  To get an idea of how the Court approaches these cases, and what other factors are considered, click here to read the opinion.

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In a recent ruling by the Missouri Court of Appeals, the court upheld a trial court ruling where marital assets were divided unequally between the spouses, the division included money spent by a spouse after separation, and spousal maintenance was awarded even though the spouse receiving the maintenance also received the larger portion of the marital property.

On the issue of division and the characterization of the property, the court held that the question of whether property is marital property is, among other things, one of credibility. The trial court is given due regard to the determination of credibility of witnesses and the trial judge is free to believe all, part, or none of the testimony of any witness. The trial judge may disbelieve testimony adduced by a witness even if the testimony is not contradicted.  In this recent case, even though the Husband testified that he thought the property in question was a non-marital asset, all other evidence indicated that it was jointly owned by the parties as marital property.

 

On the issue of marital assets spent by one spouse after separation but before the dissolution of marriage, the court held that the “spending party” can be ordered to reimburse the other spouse through disproportionate property division. In this case, the issue was one or more retirement accounts that the Husband claimed that he “lived on” during the separation, although his salary was sufficient to cover all of his living expenses. The court held that the trial court does not have to specifically find that it believes monies have actually been secreted or squandered in anticipation of divorce, because its actions can imply such a conclusion where sufficient evidence exists to support that conclusion. The court also, even after the reimbursement of the “spent” money and attorney fees, upheld the award of maintenance.   The court said that, even though there was an award of substantial marital assets that the Husband claimed could support the wife, the wife was not required to deplete, or “live off” of those of marital assets before maintenance can be awarded or take effect.

 

 

The full text of the opinion can be read here. 

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On July 7, 2009, Governor Jay Nixon signed into law senate bill number 141, which modifies Missouri’s paternity laws, effective August 28, 2009. The new law revises sections 210.826, and 210.828 and adds a new section 210.854, which will now allow men who have been declared the father of a child by a court to petition to set aside the judgment and obtain relief from child support obligations when DNA testing shows that they are not the biological father, if filed within certain time limits.  

The provisions of the new paternity law are summarized as follows:

In an action to determine paternity of a child, a notification form shall be attached to the delivery of the petition through service of process. The notification form shall prominently state in bold face type as follows: "Important Notice. If you do not respond to this action, a judgment of paternity may be entered against you and you may be ordered to pay child support, medical support or reimburse someone for support previously paid for the child. You have the right to contest that you are the father of the named child and you have the right to request genetic testing to prove whether or not you are the father."

The act also provides that a person may file a petition to challenge entry of a judgment of paternity and support upon filing an affidavit stating that evidence exists which was not considered before entry of judgment. Such petition shall also include either an allegation that genetic testing was conducted within the past 90 days using DNA methodology, was performed by an expert, and that the test results indicate the petitioner is not the child's father or a request to the court for an order of genetic paternity testing using DNA methodology. The petition to set aside the judgment may be filed at any time prior to December 31, 2011. After that, the petition shall be filed within two years of the entry of the original judgment of paternity and/or support, whichever occurs later.

The court, after a hearing where all interested parties have been given an opportunity to present evidence and be heard and upon a finding of probable cause to believe the testing may result in a determination of non-paternity, shall order the relevant parties to submit to genetic paternity testing. The petitioner shall pay for the costs of testing.

The court shall grant relief, unless the court makes written findings of fact and conclusions of law that it is not in the best interest of the parties to do so, and enter judgment setting aside the previous judgment of paternity and child support, including a previous acknowledgment of paternity, extinguish any existing child support arrearage, and order the Department of Health and Senior Services to modify the child's birth certificate accordingly upon a finding that the genetic test was properly conducted, accurate, and excludes the petitioner as the child's father.

In addition, any petitioner may apply for expungement of criminal nonsupport records to the court in which the petitioner pled guilty or was sentenced. Such expungement shall only apply to records for criminal nonsupport of a child or children for which the petitioner was found not to be the biological father.

The provisions of this act shall not apply to grant relief to the parent of any adopted child nor shall such provisions be construed to create a cause of action to recover child support or state debt previously paid under court order. The petitioner shall not have a right for reimbursement of any monies paid previously under said order.

Beginning in 2010, the family support division shall track and report to the general assembly the number of cases known to the division in which a court, within the calendar year, set aside a previous judgment of paternity and support under the provisions of this act.

The entire text of the bill can be read here.

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Newly passed legislation will finally enact the Uniform Child Custody Jurisdiction and Enforcement Act as of August 28, 2009. Missouri was one of only three states that had not yet enacted the UCCJEA. This act will replace the current Uniform Child Custody Jurisdiction Act (UCCJA).

The act limits child custody jurisdiction to one state, avoids competing orders, and provides enforcement provisions for child custody orders. The act further establishes orders of priority and guidance on issues regarding establishing initial custody determinations, continuing jurisdiction, modification of custody determination, and emergency orders.

Similar to the UCCJA, The UCCJEA establishes an order of priority for determining which state has proper jurisdiction to make an initial determination of child custody. The order of priority includes a determination of (1) the child's home state, (2) the state in which the child and at least one parent have a significant connection and substantial evidence concerning the custody determination is available or (3) the state having an appropriate connection with the child.

The child's home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or since birth, for children younger than six months.

Once a state court has made a custody determination, the state keeps exclusive and continuing jurisdiction over all matters concerning the child until circumstances have changed regarding home state status, or there is no longer a significant connection to the state or evidence concerning the child's custody is no longer available in that state. The circumstances are specified in the act.

Also, once a custody determination has been made, a court of another state does not have authority to modify the determination unless the state with jurisdiction determines that it does not have jurisdiction or any state court determines that the child, parents, or any acting parents do not reside in the state which currently has jurisdiction.

A state which does not otherwise have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. After issuing the order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction and argue the issues to the court with jurisdiction.

If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having home state jurisdiction over the child. If no determination is made and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody.

Missouri has now also done away with the requirement that social security numbers be included in family law pleadings and judgments.   Under the new law, parties will still file social security numbers with an information sheet, but that will be maintained by the court confidentially, and only the last 4 numbers will be included in the judgments or pleadings in the public record.

 

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An issue that I have seen a few times, and that was recently before the Court of Appeals for the Southern District, involves the incorporation of maintenance (alimony) provisions into a Marital Settlement Agreement, where the agreement provides that the terms are not subject to modification.   

Extreme care should be used when drafting such a document, as many times these agreements have  "boilerplate" language either at the beginning or end of the document, which says that the agreement  is the entire agreement and it is not subject to modification or change. That is all well and good for a contract, and the parties would want that in there for most purposes. Legally that language is not effective for child custody, visitation, or support orders, but it would be necessary for the division or property provisions. 

The problem is with maintenance.  If the parties agree to a certain amount and schedule for maintenance, that would normally be modifiable unless stated otherwise.  However, if the "non-modifiable" language is buried elsewhere in the document, usually at the end, that would be effective to make the maintenance non-modifiable, which would put the paying spouse on the hook indefinitely.  Obviously this could be a very expensive, unintended mistake.

So, the parties should make very clear, in the same paragraph, the type and duration of the maintenance, as well as whether or not it is modifiable.  Also, they should make sure that the provisions for non-modification of the settlement agreement, which could be anywhere in the document, do not apply to maintenance, unless that is the intent of the parties.  Also, each party should just thoroughly read and understand the agreement before signing it, even the "legalease".

For a recent case dealing with this issue, click here

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The Uniform Child Custody Jurisdiction and Enforcement act (UCCJEA) may finally win approval in this year’s legislative session. The measure is part of the Omnibus Judicial Bill (HB 187) that was perfected by a voice vote in the House this week. The House must approve the bill by a recorded vote before it can be sent on to the Senate. Missouri is among only three states (Vermont and New Hampshire) that have yet to adopt the UCCJEA.

The UCCJEA repeals the current Uniform Child Custody Jurisdiction Act (UCCJA). The act specifies the procedures, priorities, and factors to be considered in initial custody jurisdiction determinations, continuing jurisdiction determinations, modification of custody determinations, and emergency orders. Also, family access orders may be filed relating to establishment or modification of custody or visitation including, but not limited to, dissolution, modification, third-party visitation, or paternity.

 

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In a divorce proceeding, a personal injury settlement can be a major asset that will have to be divided between the parties. Missouri uses the "analytical" approach to determine whether the settlement proceeds are marital, non-marital, or both.

In a marriage dissolution proceeding, the trial court uses a two-step process for dividing property. The trial court must first set aside non-marital property before it divides marital property “in such proportions as [it] deems just.” Property acquired during the marriage is presumed to be marital, but the presumption may be overcome. A settlement for a personal injury claim occurring during the marriage may be both marital and non-marital.

To determine whether funds from a personal injury settlement are marital or non-marital, Missouri uses the “analytical” approach. Under this approach, also known as “replacement analysis,” the settlement award is classified by what it is meant to replace. To determine the intent of a settlement, a court may look to what the parties would have received if the claims had been adjudicated.  If the award is to compensate for separate, non-marital losses, it is non-marital property; to the extent it compensates for marital losses, it is marital property.

Under the analytical approach, compensation for loss of future, post-dissolution wages is non-marital property, while compensation for wages lost during the marriage is marital. Similarly, compensation for post-dissolution medical expenses is generally considered non-marital, while compensation for medical expenses during the marriage is generally marital.. Compensation for non-economic damages, such as “pain, suffering, disfigurement, disability, and loss of ability to lead a normal life” is generally considered the separate property of the injured spouse.

The Court of Appeals recently held that the trial court did not err in determining that post-dissolution payments due under the settlement agreement were properly characterized as non-marital property. To see the opinion, click here.

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The following post appeared earlier this month on the South Carolina Family Law Blog.  I thought these were some great thoughts for divorcing parents to keep in mind:

While divorce proceedings may pose a great burden upon parents, they often have a disproportionate affect upon children, who may not fully understand the process. Parental separation can fundamentally shift a child's nascent world view, requiring careful steps to ensure that children are able to soundly cope with the divorce. Although the divorce itself might emerge from personal issues unrelated to children, it is crucial that parents remain focused upon helping children transition during the process:

1. Encourage open communication from your children. Although the complete scope of the process might immediately escape children, it's important that you take time to allow a child to express his or her feelings about the event. This is a way in which you can both come to understand outside viewpoints, as well as providing you with an opportunity to reach and explain the situation in a manner that resonates with the child. If you have multiple children, it's important to speak to them both individually and collectively, as each child is likely to have a different, personal response to the events unfolding, depending on their age and personality.
2. Ensure that all children have a stable social safety net throughout the process. Since the fundamental role of the family is to provide a safe setting in which children can learn and grow, it's important that one continue to provide this level of support even during parental separation. Ensure that children are in a safe environment and remain outside any legal or argumentative environments that might surround the divorce; if you understand with your spouse around children, remain friendly and amicable, independent of your internal feelings. Always reach out to your broader, extended social network so that children feel comfortable – allow them to spend time with friends, relatives and counselors so that they have feelings of stability in spite of the changes around them.
3. Maintain continuity in your own personal life so that you can remain a strong parent.  In order to help children cope with a divorce, it's important that one ensure stability in all facets of life, from work to friendships. By maintaining an equilibrium in your life, you can ensure that you'll bring a balanced approach to keeping your life in order so that you can remain strong for your children. It may be beneficial to spend time with a counselor so that you can work through any anxiety or feelings that you have, in order to ensure a proper outlet for those emotions; while it's okay to express yourself around children, one should also ensure that emotions are kept in check and expressed in a structured fashion so children feel comfortable. In order to help children remain strong during a divorce, each parent has to be strong independently.
4. Keep legal challenges outside of the child's daily life.  Although court proceedings are a core part of any divorce, children should not have to grasp the details of the legal fight. Instead, keep the legal details separate from your relationship with your children. When working out a legal settlement, always keep the best interests of your children in mind, as those considerations should trump any financial or situational disputes that might arise in the proceedings. Even during the direct divorce proceedings, ensure that you have enough time to devote to nurturing and taking care of your children.
5. Allow children an expressive outlet to ensure their lives are well-balanced.  While no divorce is fun for children, it's important to ensure that children continue to have elements of joy in their life, from celebrating parties with friends to enjoying time off from school on the weekends. Take time away from the bustle of daily life to take your children to a park or to a nice dinner out with relatives so that they can continue to find enjoyment in life, in spite of the larger situation.

 

Thanks to the South Carolina Family Law Blog for this post.

 

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What happens when a parent tries to avoid a child support obligation because they are not working or only have a small amount of income? Well, in the eyes of the Court, that parent will be treated as if they did have income sufficient to pay the child support. The most common situation is when it is apparent that a parent is not working specifically to avoid child support, but there are many factors that the Court can consider when making this decision. This can happen in a divorce, paternity, or child support case, and it is called “imputed” income. The court can consider any relevant factor, and recent cases say the following:

For the non-custodial parent

• Any imputed income must be within a parent’s capacity to earn, and if a parent earned a different income prior to trial the court should consider that income in calculating retroactive child support.  
• Even if a parent did not try to evade child support, the court can impute higher income than earned if the parent has the earning capacity.  
• Imputed income must be supported by evidence, not speculation, and the court record must reflect how the income was figured.  
• The income imputed to an underemployed or unemployed parent must be according to what they could earn if using their best efforts to find employment
• The court can impute income if a parent has voluntarily and deliberately become unemployed, and a court should not do so if there is no showing of an attempt to evade responsibility
• If a parent is terminated and does not use best efforts to find new employment, refuses offers, or fails to show unemployment is only temporary, income may be imputed

For the custodial parent

• Factors include age, maturity of the child, availability of child care givers, relationship between the expense of child care and the net income the parent would receive, the reasons the parent stays home with the child.
• A court may not treat imputation of income on the Form 14 different than its maintenance calculation

Next installment: Adjustments to income for child support, maintenance, health insurance, and medical costs

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With so many people facing bankruptcy in the current climate, it may be good news to know (depending on which side you are on, of course) that the bankruptcy does not allow a person owing a domestic support obligation to use bankruptcy as a way to avoid payment of the debt. In fact, virtually any obligation that is domestic in nature cannot be discharged in bankruptcy. Here are a few facts:

• A domestic support obligation is not dischargeable in a Chapter 7 or Chapter 13 consumer bankruptcy proceeding. 
• “Domestic Support Obligation” is a debt that is owed to or recoverable by a spouse, ex-spouse, or child of the debtor or their guardian or representative, or a governmental unit (such as the Children’s division or the Court). This includes alimony, maintenance, child support, state assistance, even if the debt is not titled exactly in that manner. Also included is a debt arising out of a separation agreement, divorce decree, or property settlement agreement.
• Also non-dischargeable in a Chapter 7 is any debt to a spouse, former spouse, or child not described above that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record. Any debt that falling under this section may be dischargeable in a Chapter 13 debt adjustment, however.
• Domestic Support Obligations receive the number 1 priority for repayment in a Chapter 13 plan or when funds are available in a Chapter 7 bankruptcy estate.
• To summarize, if it is domestic in nature, it is going to have to be paid. This includes not only child support or maintenance, but also property and debt divisions, such as: marital estate equalization payments, payments in settlement, qualified domestic relations orders, contempt payments, divisions of debts, vehicle debts, mortgages, credit cards, lines of credit, personal loans, medical insurance, costs for non-covered medical care, retirement plan divisions, military retirement divisions, attorney fee awards, and the kitchen sink.
• No special language is necessary in the divorce settlement or decree to make these provisions apply, although it may be a good idea just to drive the point home.

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For the purposes of calculating child support in Missouri, the Form 14 calculation is used.  The starting point is the Gross Income of the parties.  So, what does that include and what exactly does it mean?  The following is a summary of the official comments and relatively recent court rulings on the definition.

“Gross income" includes, but is not limited to, salaries, wages, commissions, dividends, severance pay, pensions, interest, trust income, annuities, partnership distributions, social security benefits, retirement benefits, workers' compensation benefits, unemployment compensation benefits, disability insurance benefits, veterans' disability benefits, and military allowances for subsistence and quarters.

Overtime compensation, bonuses, earnings from secondary employment, recurring capital gains, prizes, retained earnings and significant employment-related benefits maybe included, in whole or in part, in "gross income" in appropriate circumstances.

 

Excluded from "gross income" is temporary assistance for needy families (TANF) payments, Medicaid benefits, supplemental security income (SSI) benefits, food stamps, general assistance benefits, other public assistance benefits having eligibility based on income, and child support received for children not the subject of this proceeding.

If a parent receives rents or royalties or is self-employed, in a sole proprietorship, or business with joint ownership, "gross income" is gross receipts minus the ordinary and necessary expenses incurred to produce such receipts.  

 

"Income" for purposes of computing the presumed child support amount consists of a financial benefit or money received by a parent that could have a positive impact on the parent's ability to support the parent's children.

 

Overtime Compensation

 

When determining whether to include overtime compensation, the Court must consider (1) Periods of temporary child custody, (2) The motivation of the parent working the overtime over the last three years. (3) The amount of the overtime. (4) The expectation that the overtime will continue, (5) additional dependents.

 

Overtime may be included in a parent’s yearly gross income in appropriate circumstances.  The Court must consider all relevant factors, including the realistic expectation that a parent who receives a bonus or overtime will continue to do so.  The court can ignore income history and look at a single year's income figure if it finds that figure to be the most accurate predictor of a parent’s income

 

Bonus and Significant Employment Related Benefits:

 

The same 5 factors listed above apply to bonus income. Additionally:

 

Bonuses are discretionary, and the court may accept or reject the reliability and pattern of bonus income. 

 

Expense reimbursements should not be included in monthly gross income on Form 14 because such reimbursements are a repayment or indemnification, which is compensation for loss or damage, as opposed to a benefit, which is profit or gain.

 

Next Installment:  Imputed income

 

 

 

 

 

 

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In this time of economic downturn, I am seeing quite a few people filing for divorce who have substantial debt problems, and many are considering, or needing, to file for bankruptcy. This is especially true considering that a large number of those considering divorce are doing so because of financial struggles. In this event, careful planning is required and each individual situation must be examined thoroughly. Below are some points to consider, not intended to advocate bankruptcy by any means, but just for general information on a situation that is very common.

If you can avoid bankruptcy, that is the best option. However, if required, it may be better to file bankruptcy before the divorce, considering:

• Missouri and Federal bankruptcy law will allow married couples to file jointly, eliminating the need for two separate bankruptcy filings and two separate attorney fees after the divorce.
• The parties can exempt (protect) double the amount of property if they file jointly
• Most married couples have joint debt.  Even though the divorce court can divide the debt, it cannot alter the contract with the creditor, meaning that if the spouse ordered to pay doesn’t, creditors are going to come after whoever’s name is on the account.  Then the only remedy is a contempt of court proceeding, which is time consuming (up to a year) and costly. All the while, the other spouse has to make the payment or suffer the credit consequences. Joint bankruptcy can eliminate the debt all together and avoid the problem of who pays who.
• Joint filing before the divorce will eliminate the need to litigate issue of debt in the divorce, which reduces the time and expense of the divorce, and avoids the result described above. Remember, a divorce decree is just a piece of paper, enforcing it is a whole different matter.
• Although the bankruptcy law will not allow a divorcee to discharge debts ordered in the divorce, the problem of collection and contempt may cause greater credit problems than the bankruptcy itself.
• Joint filing before divorce will allow for a higher income threshold for Chapter 7 qualification (means test avoidance)
• Joint filers can utilize Missouri’s double wild card exemption and the head of household exemptions with child exemptions (which can be significant).
• It most likely (almost guaranteed) that you can rebuild and re-establish your credit much faster than you could ever have paid off the debt, while at the same time getting the past problems behind you and truly getting a “fresh start”.
• Bankruptcy is not the end of the world. It can be an effective solution to a real problem that real people have during these times.

Please note that this list is not complete, and other issues may affect the analysis or timing of the filing. Seek legal advice for your particular situation.

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On August 20, 2008 the Advisory Commitee of the Supreme Court of Missouri issued a formal opinion that the practice of Collaborative law, a form of practice where clients agree from the outset to settle their case out of court through negotiation rather than litigation, is ethical and permissible in Missouri. 

In the area of family law, both parties and their attorneys formally agree that no documents will be filed with the court until the case is resolved.  Rather than taking a course of litigation, where papers are filed and served, discovery is exchanged, and the case is prepared for trial, the parties negotiate in a series of 4 way open discussions.  In these discussions, the parties agree not to go to court, or even threaten to, and all information is exchanged freely and openly to assist the attorneys in resolving the case in a cooperative manner.  In the rare event that the case is not settled, both parties must retain new trial counsel and the collaborative attorneys must withdraw.

The primary concern of the Advisory Committee was that the client understand the pros and cons of the collaborative process and sign a written consent and contract providing that the attorney has no choice but to withdraw should the case not settle.

Collaborative family law has been around for many years, and is quickly gaining momentum and popularity in Missouri as a superior way to resolve domestic relations cases

 

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To show transmutation of separate property to marital property requires evidence of owner’s clear intent to contribute the property.  Commingling is not enough.  Wife’s contributions to Husband’s separate property did not transmute into marital property, but did support an equalization payment to Wife in proportion to her contribution.   Court of Appeals awards Wife slightly less than Circuit Court. 

Sheilafaye Goodwin, Respondent, v. Charles Lewis Goodwin, Appellant

Missouri Law pertaining to Marital and Separate Property

Section 452.330 governs a trial court’s distribution and classification of marital and non-marital assets. That section requires that the trial court set aside to each party their non-marital property and divide the marital property equitably.  Generally, property owned by one spouse prior to the marriage will remain non-marital property and will be awarded to the owner of that property.   Moreover, "property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property." Property acquired before the marriage and which remains titled in the name of the original owner is separate property unless the record shows that the owner intended to change the status of the property from separate to marital.’ By contrast, if the owner intended to change the status of the property from separate to marital, it becomes marital." To transform the nature of the property from separate to marital, "[a] ‘clear intention’ to contribute to the community or to the other spouse must be demonstrated."      "[C]ourts must set aside a spouse’s separate property in dissolution cases, and property is deemed separate or marital based on the source of funds that financed the purchase

 

 

 

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As most people know, the California Supreme Court recently ruled that the state's ban on same-sex marriage was unconstitutional.  So what does that mean for Missourians? 

• In California, there were two statutes that said that a marriage is between a man and a woman, which was interpreted to prohibit same sex marriage.  The Supreme Court ruled those statutes to be unconstitutional under the California Constitution (not the federal).   It is now legal for same sex couples to marry in California.

 

• Missouri is different.  In Missouri, rather than a statutory ban on same-sex marriage, we have a constitutional amendment (2004) that defines marriage as being only between a man and a woman, and marriages between same-sex couples are not recognized.  There is also a federal statute in play called the Federal Defense of Marriage Act which permits Missouri (and other states) to deny full faith and credit to the marriage laws of another state.  This means that Missouri does not have to recognize a same-sex marriage that is perfectly legal in California since it is inconsistent with Missouri law.  The federal law's constitutionality has not been fully challenged yet.

 

• Taken together, it is presumed that if a same sex married couple moved to Missouri, or Missourians went to California to get married and returned to Missouri, their marriage would not be recognized.

 

• This also means that same-sex married couples could not obtain a divorce in Missouri because there would be no jurisdiction for the courts.  Thus, dissolution of marriage laws that control child custody, visitation, support, maintenance, and property division would presumably not apply.

 

• In the event of a separation the couple would probably have to file an action under the Uniform Parentage Act (commonly known as a paternity action currently) to determine custody, visitation, and child support issues if adopted children are involved.

 

• Same sex couples may want to utilize prenuptial agreements, antenuptial agreements, contracts, and other documentation to control the disposition of assets, including real estate, personal property, bank accounts, securities, business interests, etc.

Source for Post:  mobar.org Esq. soundbite. 

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Effective yesterday, July 1, 2008, Supreme Court Rule 88.09 comes into effect which requires parties not represented by counsel to participate in a litigant awareness program that explains the risks and benefits of self representation, as well as requiring certain court forms to be used and accepted by the Court.   The amended rule reads as follows:

88.09 PARTIES NOT REPRESENTED BY COUNSEL

Every party not represented by counsel who participates in a proceeding for dissolution of marriage, legal separation, parentage or the modification of a judgment in any such proceeding shall:

(a) Complete a litigant awareness program that includes an explanation of the risks and responsibilities of self-representation, unless waived by the circuit court. The awareness program shall be prepared by a committee designated by this Court, but each circuit may determine the manner and means by which the training shall be provided and the proof of compliance; and

(b) Unless such use is waived by the trial court, use the pleadings, forms, and proposed judgment prepared by a committee designated by this Court that have been approved by this Court. These forms shall be accepted by the courts of this state, until disapproved or superseded by this Court.

(c) Nothing in this Rule 88.09 prevents a court from determining the legal sufficiency of any pleading nor prevents a court from entering judgment in a form different from the judgment form approved pursuant to Rule 88.09(b).

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The Pennsylvania Family Law Blog had a great post yesterday about why you need a lawyer for your divorce case.  The full article can be read here, and is summarized as follows:

A good divorce lawyer is part lawyer, part psychologist and part clergy. A good divorce lawyer also is indispensable if you are contemplating a divorce (or, for lawyers, if your client is doing so).

An experienced divorce lawyer will already be aware of the issues likely to arise in your case. This divorce lawyer knows the court rules and the court personnel. She knows the other practitioners in her area of expertise.  She knows the best appraisers (real estate, jewelry, pensions, etc.), the best therapists, and the best tax lawyers for this case.

Your divorce lawyer also brings certain unique skills to the case. He negotiates in a way that is designed to lessen antagonism with your child’s other parent, while still vigorously protecting your rights. He gives you advice that is geared to your family situation, not just your financial needs. 

These are all great points.  I would add the following:

Judges hold pro se litigants to the same strict standards and rules as attorneys, and honestly, most judges to not like people coming into court without an attorney.  

If the other side has an attorney that is worth their salt, the pro se litigant will have probably lost the case months before they even get to court.  Issues with jurisdiction, service, discovery, depositions, admissions, temporary orders, default, local rule compliance, etc. can blow the whole case.

Divorce is stressful enough without an experienced attorney who specializes in family law.  The attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court.  Its better that way, trust me.

You wouldn't perform your own surgery, why would you try to take on the court by yourself.  Divorce lawyers are here for a reason. 

The court is not going to accept those forms you downloaded from the Internet.  

Whatever your argument, the judge has heard it before.  The attorney knows how to pick the battles and keep you on the judges good side.

Family law is not like other areas of the law.  A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.

 

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Recent Case Summary

Statute requires interest on maintenance not paid. Neither "good faith . . . reliance upon what [Obligor] understood to be a valid court order" that no interest was due, nor Obligee's inconsistent theories on amount due, are a defense. Circuit Court did not abuse its discretion in denying attorney fees award "based on a variety of factors expressly authorized by" statute.

Case Holding

Appellant was entitled to statutory interest pursuant to section 454.520.3, RSMo, for the entire time period that Respondent failed to pay his full obligation under the divorce decree. The obligation to pay interest under section 454.520.3 is mandatory and is intended to compensate the recipient spouse, rather than punish the payor. Although Respondent may have relied in good faith on the circuit court's 2002 modification order, this court held that the 2002 order was null and void; Respondent's obligation to make $4,000 per month maintenance payments under the original divorce decree thus subsisted throughout the relevant period. On this issue the judgment is reversed, and remanded to the circuit court for calculation of the interest owing to Appellant.

The circuit court denied Appellant's request for attorneys fees and costs based on multiple factors, including Appellant's resources, the justiciability of the issue concerning the validity of the 2002 modification, Appellant's delay in seeking an attorneys fee award, and her conduct during the litigation. Pursuant to section 452.355.1, RSMo, the circuit court has broad discretion in deciding whether an award of attorneys fees is warranted. This court finds no abuse of discretion in the circumstances, and the circuit court's denial of attorneys fees and costs is affirmed.

Read the Full opinion here

Source for Post:  Missouri Bar

 

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After divorce, it is common for the parties to agree to sell their marital home, or it may be ordered by the Court.  It is also common for one party to keep the home, and "buy out" the other spouse for their share of the equity.  In the current market however, sometimes this is not possible, and the value of the home is such that a sale will not bring enough proceeds to cover the outstandig mortgages.  In this situation, divorcing spouses may have no choice but to consider a short sale.  The following article, recently posted on the New Jersey Law Blog, explains a short sale, and the possible benefits and risks.

A short sale is when the proceeds from the sale of a home are not sufficient to fully pay off all outstanding debts which are secured by the property (mortgages) after first deducting the homeowner’s costs of selling the property.  In such instances, the selling homeowner can either bring funds to closing to make up the difference, or obtain approval from his mortgage holders to accept a reduced amount to satisfy his outstanding loans. 

Unless a homeowner is able to pay off all of the mortgages which are secured by his property, the homeowner will not be able to convey good title to a buyer.  If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage.  For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan.  This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision.  This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents.  Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS.  This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner.  This was so even though the homeowner received nothing from the sale.  However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007.  This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence.  The amount of the debt forgiveness can be up to $2.0 million.  Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability.   This exemption for forgiven debt, however, is only temporary and expires within three years.

Source for Post: New Jersey Law Blog

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Princeton encourages it. Harvard’s a big fan. From Tufts to MIT, some of the most prestigious universities in the nation are urging students to consider something that would make most parents cringe: The idea of putting off college for a year in favor of some much-needed down-time. 

It’s called a “gap year.” And while it’s been a common and popular rite of passage in Australia and the U.K. for decades, the concept is now starting to gain significant steam here in America.

Why? A growing number of high school seniors are balking at riding the academic conveyer belt from preschool, all the way to university. They’re burnt out. Or not quite ready. Or they want to explore a few interests before deciding what to study in college. So instead of packing their bags in anticipation of freshman year, they’re volunteering in New Orleans or teaching in Thailand. They’re starting the great American novel, or interning to help figure out what they want to do with their lives.

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following is the third installment of tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.  

9.     Child Abuse Allegations

It is becoming common for conflicting parents to express their hostilities by making unfounded allegations of child abuse.  For children the consequences of these allegations are negative and far-reaching.  Children are drawn into evaluations, investigations, and court testimony which greatly increase the risk of prolonged confusion, hurt, and anger.

10.     Custody Fights

Some parents pursue custody fights when they know perfectly well that the real reason for the custody action is to be vindictive.  Children experience custody battles between their parents as extremely stressful.

11.     Child Support

Parents too often use child support by withholding it, demanding more, or making payments late when the real motivation is to perpetuate a dispute with the former spouse.  In many homes children suffer directly when child support payments are not made regularly or when conflict is expressed indirectly in this way.

12.     Using Noble Ideas to Hide Double Standards

A custodial parent might say "i want her to make her own decisions" when a child refused to visit the non-custodial parent but strictly enforce curfews when the same child wants to stay out late.  A custodial parent might say "He has the right to his own feelings" if a child says critical things about his non-custodial parent but lecture and browbeat the same child for "talking back" at home.  Children are sensitive to inconsistencies.  They react to them with mistrust and cynicism.

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following is the second installment of tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.  See the March10 post below for tips 1-4.

5.     Sabotaging the Child's Routine

When parents fail to give a child medication, fail to follow through on discipline imposed by the other parent, or bend rules on bed-time, diet, or curfews out of anger for the other parent, they are involving the child in parental conflicts.  conflicted parents frequently take their children to medical professionals without consulting the other parents as a way of acting out unresolved divorce disputes.  This practice places parental conflict above the child's medical well-being.

6.     Compensating for the Other Parent's Failures

One divorced parent may view the other parent as a poor parent for being "too lenient", "too strict", "too involved", or "not involved enough".  Such parents often try to compensate for the other parent's "failures' by being the opposite kind of parent.  Children in such situations suffer by not having parents who are using a balanced approach to rearing children.

7.     Making a Popularity Contest of Parenthood

A parent may try to win the affection of a child out of fear that the child favors the other parent.  such parents go overboard to "be nice" or refrain from being firm with their children. Children suffer in these situations by not having the advantage of a parent who is acting in the proper role of authority figure.

8.     Being an Accomplice to Whining

A parent may allow a child to complain about the other parents without helping the child see a more balanced view of the other parent.  If the parents either passively accepts the complaint or fails to urge the children to take up these grievances with the other parent they subtly encourage children to use indirect communication as a way of managing conflict.

The remaining 4 tips will appear in a future post

Source for Post:  James Roberts, RSW and the Kansas City Metropolitan Bar Association

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.

Parents who are either in the middle of a divorce, thinking about divorce, or already divorced should pay careful attention to the following ways that parents put their children directly in the middle of the conflict, and do their best to avoid them!

1.     Bad Mouthing

One of the most hurtful things a divorce parent can do to a child is to criticize the child's other parent in the child's presence.  Statements such as "Your father caused our divorce", or "if it weren't for your mother, we'd still be a family," are common examples of "bad-mouthing"

2.     Forcing a Child To Choose

It is harmful to pressure a child to "take sides" in a dispute between the divorced parents.  Children have a right to their own thoughts and feelings about the divorce and deserve to know they will be loved by both parents regardless of the opinions and feelings they have.  If parents are in conflict over custody and children are facing a decision about which home to live in outside professionals should be called upon for help.

3.     Spying

A parent who asks a child questions about the other parent's personal life is asking that child to become involved in the parents' conflicts.  Children in this situation may end up feeling they have betrayed a parent they love.

4.     Making the Child the Messenger

Parents make their children do a parent's job when they ask their children to carry messages to the other parent.  Children learn indirect ways to communicate when asked to be messengers and may feel guilt over having to assume adult responsibilities for their parents' communication

The remainder of James Robert's list will be posted to this blog in two future articles.

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Case Summary:
Past standard of living is not the standard for setting maintenance, but Wife showed that she can not meet her reasonable needs by working presently or in the future because of poor health and limited education. Circuit Court awarded proper amount, but used wrong term, in awarding maintenance, so Court of Appeals amends judgment to use right term. Substantial evidence supports imputation of income to Husband and award of attorney fees against him.
In re the Marriage of Debbie Lynn Taylor and Willie James Taylor, Debbie Lynn Taylor, Petitioner-Respondent, v. Willie James Taylor, Respondent-Appellant. Missouri Court of Appeals Southern District

Missouri Law pertaining to Awards of Maintenance (Alimony)
The trial court can award maintenance only if it finds that the party seeking maintenance "(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment[.]" Section 452.335.1.This section requires the trial court to follow a two-part threshold test. The court must initially determine if the requesting party has sufficient property to meet his or her reasonable needs, and if they do not, then the court must examine whether or not the party's reasonable needs can be met through appropriate employment.  Childers v. Childers,26 S.W.3d 851, 854 (Mo.App.W.D. 2000). The spouse seeking maintenance has the burden of establishing the threshold requirements. Comninellis v. Comninellis, 147 S.W.3d 102, 106 (Mo.App.W.D. 2004). After the court finds the threshold test has been satisfied, then the court may consider the statutory factors under Section 452.335.2 with respect to amounts and duration. Monsees v. Monsees, 908 S.W.2d 812, 817 (Mo.App.W.D. 1995).

In this case, Wife established that (1) she lacked sufficient property, including marital property apportioned to her during the dissolution, to meet her reasonable needs; and (2) that she is unable to support herself through appropriate employment.

Under Section 452.335.2, the court, in determining the amount and duration of a maintenance award, may consider all relevant factors including:

The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently[;]
The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
The comparative earning capacity of each spouse;
The standard of living established during the marriage;
The obligations and assets, including the marital property apportioned to him and the separate property of each party;
The duration of the marriage;
The age, and the physical and emotional condition of the spouse seeking maintenance;
The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
The conduct of the parties during the marriage; and
(10) Any other relevant factors.

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Here's How:

Source for Post: Cathy Meyer's Divorce Support Blog at about.com

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The Issue of attorney's fees often comes up in domestic litigation.  Missouri has adopted the American Rule regarding attorney's fees in that, absent statutory authorization or contractual agreemtn, each litigant, absent few exceptions, must bear the expense of their own attorney's feesl  However, Missouri's dissolution of marriage law allows the court to order one party to pay the other's attorney's fees, but the court must consider all relevant factors including the financial resources of both parties, the merits of the case, and the actions of the parties during the action.  The inability of one spouse to pay his or her own or the other party's attorney's fees is not determinitive.  Some examples supporting an award of fees would include unfounded allegations of child abuse, concealing assets, abuse of discovery, and failure to appear for trial. 

Recent Case
The Party seeking an award of attorney fees has the burden of proof to show that an award of attorneys fees is appropriate.  In the recent case cited below,  the record contains some evidence of father's financial resources—retirement and disability—but none on Mother's financial resources or on "any unusual circumstances warranting departure from Missouri's adoption of the American rule requiring each litigant to bear their own expenses." Circuit Court abused its discretion in awarding fees. Reversed.
Tina Marie Hihn, Respondent, v. Joseph Alexander Hihn, Appellant. Missouri Court of Appeals Eastern District

 

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The holiday season conjures up many images for all of us. The most universal of these images is one that includes happy excited children. However, for children from divorced or separated families, the holidays can be a nightmare. What other children may experience as a joyful time filled with excitement and good feelings, children whose parents are divorced or separated see quite differently. Often the holiday time marks a period of turmoil and chaos, as the estranged parents are forced to negotiate additional child centered issues. Depending on the degree of hostility between the parents, children of divorce approach the holidays with feelings ranging from mild ambivalence to absolute dread. This article will explore what children of divorce experience at holiday time with a focus on holiday visitation, parents' legal rights and ways that parents can help ease the pain and reduce conflict so the holidays can be enjoyed by all.

First, regardless of financial or marital status, we all experience stress around the holidays. We spend too much, eat too much, party too much and always seem to have too little money, too little sleep, and too little time. It is important to recognize that most people feel inadequate around the holidays.

Second, regardless of how good the relationship is between the divorced or separated parents, children and their parents always experience some sadness around the holidays. After all, the holidays are a time for reminiscing and reassessing our lives. The divorced or separated family is always aware of the pain it has suffered and the holidays magnify this pain. Reminiscing is part of the holiday tradition, as we remember holidays gone by with stories or browsing through the family album. For the divorced or separated family this experience is bittersweet, as they reassess how it "used to be."

Third, we have unrealistic expectations. This result is the "post holiday blues" many of us experience in January. We expect more from ourselves and others than is possible, so we feel let down and disappointed.

Fourth, the ability of the children to adjust not just to the holiday visitation schedule, but to the divorce or separation, in general is directly effected by how well the parents have learned to adjust to their new roles as ex-spouses and co-parents. The above four issues give insight into what parents need to do, regarding their children.
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Discussed below is a recent ruling from the Western District of Missouri, where the Court, among other things, upheld the trial Court's ruling of imputation of income for child support and the award of attorney's fees. 

For calculation of child support, a trial court may impute income to a party according to what that party could earn by using best efforts to gain employment suitable to his or her capabilities.   Imputation is appropriate where the parent voluntarily reduces his or her income without justification. Further, Imputation is only proper where the trial court concludes from the evidence that the "parent has the capacity to earn more but voluntarily refuses to do so."  In imputing income, the directions to Form 14 indicate that the court may consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, prevailing job opportunities in the community. 

As to the issue of attorneys fees, Missouri law permits the Court to award attorney's fees to a party, but it is not required to do so.  Generally the Court takes the position that each party must bear their own costs of litigation, and usually does not require one party to pay the attorney's fees of another party.  However, if the court does make such an award, the Court must consider all relevant factors including, the relative financial resources of the parties, the merits of the case, and the actions of the parties during the pendancy of the action.  In this recent case, the Court of Appeals stated in so many words that an award of attorney's fees would not be reversed if the award was arbitrary and unreasonable.

The summary of the case is as follows:

Circuit Court Need Not Award All Attorney Fees
Child's best interest does not necessarily require that Spouse who was caregiver during marriage has more parenting time after dissolution. Circuit Court properly imputed income to Spouse based on evidence of earning potential and desire not to achieve it. Actual income includes bonuses and benefits. In property division, Circuit Court need not credit Spouse with separate debts, including attorney fees, and need not award fees where much was spent litigating meritless issue. Payment of past maintenance did not waive contest of future payments, but Spouse did not show that the amount "was unwarranted, beyond [Spouse's] means to pay or so excessive as to constitute an abuse of . . . discretion. Rule allows award of half of transcript costs.
Sharlene Krepps, Appellant-Respondent, v. Richard Lee Krepps, Respondent-Appellant. Missouri Court of Appeals Western District

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What happens if there is a court ordered parenting plan as a result of a divorce, paternity case, or other proceeding, and one of the parents wishes to relocate to another city or state?  Well, Missouri law places a burden on the parent to notify the other parent, in writing, meeting specific requirements, before the relocation.  Essentially, the parents must be able to agree on a new parenting plan, and if they cannot, they have an opportunity to have the Court decide whether the parent can relocate.  The following are the requirements of Missouri's statutory restriction on relocation:

Absent exigent circumstances as determined by a court with jurisdiction, a parent with physical custody of a child will notify, in writing by certified mail, return receipt requested, and at least sixty days before the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:

• The intended new residence, including the specific address and mailing address, if known, and if not known, the city
• The home telephone number of the new residence, if known
• The date of the intended move or proposed relocation
• A brief statement of the specific reasons for the proposed relocation of the child
• A proposal for a revised schedule of custody or visitation with the child

The parent’s obligation to provide this information to each party continues as long as that parent is entitled to custody of a child under a court order. The parent’s failure to abide by this provision regarding the proposed relocation may result in further litigation to enforce the requirement, including contempt of court for violating a parenting plan that has been incorporated into the court’s judgment. In addition, the parent’s failure to notify a party of the relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against the parent for failing to give the required notice.

            Once a parent intending to relocate has given the proper notice to the other parent, the parent receiving the notice has thirty days from the date the notice was received to file a motion and affidavit in court setting forth the factual basis supporting that parent’s objection to the relocation. The parent requesting the relocation will then file a response within fourteen days, unless extended by the court, and this response will include a counter-affidavit setting for the facts in support of the relocation as well as a proposed revised parenting plan for the child.

            The parent seeking to relocate will have the burden of proving that the proposed relocation is made in good faith and is in the best interests of the child.

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Death Moots Appeal
Father's death mooted Mother's appeal of visitation provisions in judgment. As to Third-Party Respondent, Mother's appeal of property division is supported by evidence in the record, so Court of Appeals affirms. "[T]his Court accepts as true the evidence and reasonable inferences . . . in the light most favorable to the trial court's decision [and will] disregard all contradictory evidence and inferences . . . contrary to the court's decision."
Mary Margaret Holtgrewe, Appellant, v. Kurt Lawrence Holtgrewe, Respondent, Marlene V. Holtgrewe, Third Party Respondent. Missouri Court of Appeals Eastern District

Stalking By Text Messaging Not Proven
Plaintiff alleged that Defendant's contacts alarmed her, but testified merely that Defendant's text messages and telephone calls bothered her. Such evidence was insufficient to support a full order of protection.
Christinia M. George, Respondent, v. Candace McLuckie, Appellant. Missouri Court of Appeals Western District

Tax Returns Must Be Disclosed
Movant showed no prejudice in Circuit Court's erroneous refusal to require production of Respondent's tax returns because she did not show that the returns alone would have proven her case. Because Circuit Court found that Movant didn't meet her burden of proof, Circuit Court's failure to make a requested finding of fact on whether maintenance was modifiable or not was harmless.
In Re the Marriage of: Bradley Alan Mangus and Ronda Darlene Mangus. Bradley Alan Mangus, Petitioner/Respondent v. Ronda Darlene Mangus, Respondent/Appellant. Missouri Court of Appeals Southern District

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Ruben Francia has an article posted on Your Child - Your Divorce which looks at the best appropriate divorce parenting practices for school-age children. It is well-worth a full read.

Here is his list of some divorce parenting practices that are best for your child:

· Explain what is happening over and over again. Children this age are confused easily. In simple terms, explain where your child will live, with whom, where the departing parent will live, and who will provide care when both parents are unavailable.

· Encourage your child to talk about how he/she feels. Be sensitive to children’s fears. Let your child know that he or she can openly talk to you about the ups and downs of your separation or divorce.

· Read books together about children and divorce. Use books to help your child talk about feelings.

· Answer all questions about the changes, and keep lines of communication open. Make sure your child feels like he or she can ask you questions and get answers about why the divorce happened and what to expect.

· Plan special time together. Set aside special time to spend with your child but be careful not to make promises you may not be able to keep.

· Repeatedly tell children that they are not responsible for the divorce. Children need to be reassured that the breakup wasn’t their fault.

· Reassure children of how their needs will be met and of who will take care of them.

· Reassure children that everything will be ok, just different. Children are invariably frightened and confused by divorce. It’s a threat to their security. Provide extra hugs and kisses and tell your child that you and other adults will always be near to love and protect

· Talk to your child’s day-care provider about the divorce. She will better understand your child’s possible regressive behaviors and will likely offer extra support.

· Talk to your child’s teachers or school counselors about the divorce. They may then better understand possible learning or behavioral problems and will likely offer extra support.

· Keep daily routines intact. Children feel more secure when there is a standard routine. Stick with bedtimes, no matter at which home the children are. Have some consistent chores. Have some time committed to the child, which is treated as sacred.

· Respect, but monitor, your child’s privacy.

· Discourage reconciliation fantasies. Avoid dinners, outings, or holiday celebrations with your ex-spouse; they only fuel your child’s fantasies. Instead, emphasize the finality of divorce

· Be sensitive to children signs of depression and fear. Seek professional help if depression is prolonged or intense.

· Help non-custodial parent stay involve. Let non-custodial parent maintain a regular presence such as a phone call several times each week, messages sent on video or audiotapes.

· Plan a schedule of time for children to spend with their other parent. Be supportive of children’s ongoing relationship with the other parent. Remember that children generally fare best when they have the emotional support and ongoing involvement of both parents.

 

Source: Georgia Family Law Blog

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Sooner or later, many families face the prospect of moving. Disruptive as moving can be for parents, the experience can be even more traumatic for kids, who may not be a part of the decision to move and may not understand it.

Kids may need some time and special attention during the transition. You can take steps to make the entire process less stressful for everyone.

Making the Decision to Move

Many kids thrive on familiarity and routine. So as you consider a move, weigh the benefits of that change against the comfort that established surroundings, school, and social life give your child.

If your family has recently dealt with a major life change, such as divorce or death, you may want to postpone a move, if possible, to give your child time to adjust.

The decision to move may be out of your hands, perhaps due to a job transfer or financial issues. Even if you're not happy about the move, try to maintain a positive attitude about it. During times of transition, a parent's moods and attitudes can greatly affect kids, who may be looking for reassurance.

Discussing the Move With Your Child

No matter what the circumstances, the most important way you can prepare your child is to talk about it early and often.

Try to give your child as much information about the move as soon as possible. Answer questions completely and truthfully, and be receptive to both positive and negative reactions. Even if the move means an improvement in family life, kids don't always understand that and may be focused on the frightening aspects of the change.

Involving kids in the planning as much as possible makes them feel like participants in the house-hunting process or the search for a new school. This can make the change feel less like it's being forced on them.

If you're moving across town, try to take your child to visit the new house (or see it being built) and explore the new neighborhood.

For distant moves, provide as much information as you can about the new home, city, and state (or country). Learn where your child will be able to participate in favorite activities. See if a relative, friend, or even a real estate agent can take pictures of the new house and new school for your child.

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Certified Divorce Financial Analysts™ offer their best tips to help you avoid some of the most common mistakes made by divorcing people.Edited by Diana Shepherd, CDFA

Understand your financial and emotional limits.

When you understand yourself, you are better equipped to be objective. This saves time, which leads to cost savings. If you are not prepared to look at reality – without the emotional entanglements – the outcome will never be what you need, let alone what you want. Instead of asking "why" questions, which lead to people becoming defensive, try asking questions that start with "how." For instance, asking, "How did you come to that conclusion?" leads to a discussion about process. It allows both people to step back from the brink and look at things as they are.

Armand D'Alo (CFP® and CDFA™) of Oak Tree Advisory Services has worked as a financial analyst in private practice for more than 25 years. Located in Carlsbad, CA, he holds a degree in finance and family counseling from Brigham Young University. He can be reached at info@oaktreeadvisory.com.

Settle out of court.

When given the choice to settle at mediation or settle at trial, always try to choose the former for two reasons. First, going to trial is very expensive: typically, the only ones who win are the lawyers and experts, which leaves a smaller "pie" for the divorcing husband and wife to divide. Second, going to trial is risky because all of the decisions are left to the judge who has known the parties for a few hours at most; in mediation, the divorcing parties still have 100% control over how things will be settled (assuming they can come to an agreement).

Joseph P. Mirandi (CPA, CVA, CDFA™, MST) devotes a large portion of his practice in Lakeland, FL to assisting lawyers and their clients in divorce-related matters. He also has an extensive tax practice, and is certified in preparing business valuations. He can be reached at (863) 607-4222 or via www.huttomirandi.com.

Know what you have and what you need.

It is very important to know what assets you own, the value of those assets, and how they are held. This should cover everything from retirement to investment to bank accounts, as well as future pensions and social security. Make copies of your and your spouse's tax returns. These returns can help explain to a financial advisor a lot more than your income and taxes paid: they can help find assets, capital gains and losses, depreciation, and business expenses. The tax returns are also helpful in uncovering assets that a spouse might have hidden.

Before splitting your assets, you should think about what you need: you must create a budget, identify which assets will help ensure your financial security, and negotiate for this.

Jim Newman (AWMA, CSA, CDFA™) is the Senior Vice President – Wealth Management at Janney Montgomery Scott in Ponte Vedra Beach, FL. He can be reached at (866) 226-9935.

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Recently from the San Francisco Family Law Blog

With more than 50 percent of marriages ending in divorce, dealing with custody, splitting up property and paying alimony are realities that some families must deal with.

Of course, they are also serious issues of contention that can often cause financial hardship to one or both parties involved.

"The harsh truth is all relationships end, be it divorce or death," said Cheryl Bernstein, a financial planner for Financial Essentials. "At some time or another, and you need to know where your money is."

There are many financial issues, ranging from tax implications to determining assets, that come into play during a divorce.

However, it's only a part of the story.

"In middle-size divorces, it's part of a case, but not all of the case," said Steven Chroman, a Valencia divorce attorney.

Money issues ranging from property distribution to spousal and child support all factor in and become issues, especially when a marriage has seen an increase in money for one or both parties.

Chroman said that in California, people are lucky, as in most divorce cases there are disclosure requirements, and people can hire accountants to be able to trace all property and assets and be able to determine tax implications.

Bernstein said it's important for both men and women to be financially educated and know where all their money and obligations are.

"Don't count on the other spouse," she said, because there could be case of needing to know where everything is.

Chroman said money can be manipulated, which is why it is important to have the right people available to handle what a person might forget during the course of a divorce.

In addition, in spousal support and monetary settlements, the parties have to be aware of all things that come up during the course of a marriage, and have "due diligence" in figuring out what is owned and managed.

Chroman said that although it is an unromantic ideal, a pre- or post-nuptial agreement might help in protecting assets, such as an estate or trust that a person comes into a marriage with, and being able to keep that money after a divorce.

It's not just for the wealthy, either. He said that it is also a common practice in middle-class marriages.

"A lot of things can happen," he said. "People get divorced for crazy reasons, and it's a security device for both."

By Reina V. Slutske
Signal Business Writer

Source:  San Francisco Family Law Blog

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NEW YORK (AP) -- By the numbers, divorce just isn't what it used to be.

Despite the common notion that America remains plagued by a divorce epidemic, the national per capita divorce rate has declined steadily since its peak in 1981 and is now at its lowest level since 1970.

Yet Americans aren't necessarily making better choices about their long-term relationships. Even those who study marriage and work to make it more successful can't decide whether the trend is grounds for celebration or cynicism.

Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

''Families with two earners with good jobs have seen an improvement in their standard of living, which leads to less tension at home and lower probability of divorce,'' said Andrew Cherlin, a professor of public policy at Johns Hopkins University.

America's divorce rate began climbing in the late 1960s and skyrocketed during the '70s and early '80s, as virtually every state adopted no-fault divorce laws. The rate peaked at 5.3 divorces per 1,000 people in 1981.

But since then it's dropped by one-third, to 3.6. That's the lowest rate since 1970.

What's fueling that decline? According to 20 scholars, marriage-promotion experts and divorce lawyers consulted by The Associated Press, a combination of things.

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 Divorce & Social Security Benefits

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Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect.

Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, ‘discharge’) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition--for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)--he gained the protection of an ‘automatic stay,’ preventing creditors from taking any actions against him, his income or his property to collect their debts.

Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation ‘DSO’ becomes a ‘first priority claim,’ ineligible for discharge.'

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Child-rearing is often a sensitive and complicated issue for couples, and many argue about just how to properly raise their young. But for children, major parental disagreement is a source of mixed messages and confusion that may undermine the attitudes, values and behaviors parents hope to teach. Stacy DeBroff, president of the popular parenting website Momcentral.com, offers smart solutions on how to keep chaos at bay.

Parenting disagreements? Threatening the well being of our marriages and our kids? Yep, welcome to the brave new world of today's parenting: with shifting social roles for Mom and Dad, pressure to raise fabulous kids while supposedly being their best friends, and strong parenting preferences by both Mom and Dad.

When most of us were growing up, Mom and Dad held more traditional roles, with Mom typically a housewife and Dad the breadwinner and stern disciplinarian. "Just wait until your Father gets home!" my brother and I got warned on a daily basis. Not so today, as Moms announce in the kitchen, "I do not care what your Dad said! There is no macaroni and cheese for breakfast in this house or TV after dinner. Period." For men and women alike with children, parenting has emerged as a primary focus. And along with the laser-like focus on children has emerged a virtual cauldron of boiling and brewing parental disagreements.

Trend spotting helps here to see the shifting in parenting styles. Long gone are those June Cleaver days when women considered themselves first and foremost as "housewives." Moms are focusing on being "stay-at-home Moms," we have entered the workplace in record numbers, and Dads have become the most involved parents in history. Plus, ask most Moms and Dad and they will announce how they want to be "best friends" with their children. So much for children being seen and not heard!

When Mom and Dad disagree over even minor parenting issues: the repercussions echo throughout the whole next day and the whole family. For instance if Dad lets the kids stay up way past bedtime, you have Mom at home with an entire day of dealing with a grumpy, tired, unhappy kid or one who resents your more stringent rules. Or it's the working Moms who get reports from a babysitter, the preschool, the teachers, and the after-school about a tired child who is acting out. As parents, Moms rely on having a united front.

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Burden of proof of stalking for order of protection. Thomas Schwalm, Respondent v. Lori Schwalm, Appellant, No. 87829 (Mo. App. E.D., March 20, 2007), Richter, P.J.
  This case is instructional to the extent it discusses the failure of proof that required the reversal of the judgment for an order of protection.
  Husband sought an order of protection where the evidence showed that wife knocked on husband's door multiple times, once blocked husband's vehicle in a parking lot, followed him to work on occasion and once approached him at a gas station. That sounds like stalking, except for one crucial element. “While the statutory definition of stalking requires alarm (in the victim), a plaintiff is required to do more than simply assert a bare answer of 'yes' when asked if he was alarmed. A plaintiff must show that a defendant's conduct caused him fear of danger of physical harm as stated in the statutory definition of alarm. See Section 455.010(10)(c).”
  Note: A similar case was just reported for the same proposition: Clark v. Wuebbeling, No. 88413 (Mo. App. E.D., March 20, 2007), opinion also by Judge Richter.

Identical twins yield identical paternity tests. State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent, No. 27188 (Mo. App. S.D., March 14, 2007), Garrison, J.
  This was a paternity action in which twin brothers were having sexual relations with the eventual mother of a child for whom child support was sought. The brother named as the father appealed on the basis that the burden of proof of his paternity was not met because of the results of DNA testing of both brothers. The results were identical.
  Held: Affirmed. When competing tests for paternity show two potential fathers, the court must look to the nongenetic evidence to determine if there is a preponderance of evidence of the identity of the father. Here, the mother's testimony established that appellant was the only one of the two who could be the father.

Disqualification of guardian ad litem in modification action. State of Missouri, ex rel. Larry Dreppard, Relator, v. Hon. Phillip Jones, Com., and Hon. John Essner, Respondents, No. 89214 (Mo. App. E.D., March 6, 2007), Norton, P.J.
  A motion to modify was filed and the trial court re-appointed the guardian ad litem (“GAL”) from the dissolution of marriage action. Within 10 days of that appointment, father asked for the disqualification of the GAL. The request was denied. Father now seeks a writ of mandamus compelling the trial court to grant the motion to disqualify.
  Held: Writ made absolute. Section 452.423.1, RSMo provides that each party has a right to one disqualification of an appointed GAL if requested in a timely manner (within 10 days of the appointment). The trial court viewed the motion to modify as a continuation of the original dissolution action. However, the opinion notes “… that by 're-appointing' the GAL following the motion to modify, the court recognized that the modification proceeding was independent from the original dissolution proceeding. Otherwise, no appointment would have been necessary.” Since the motion to modify is deemed by the rules to be an independent proceeding, the parties had a right to disqualify the GAL.

Pension benefits and disability payments. Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant, No. 66204 (Mo. App. W.D., February 27, 2007), Ellis, J.
  In this dissolution of marriage action, the parties were married in 1982. At that time, husband had worked for General Motors for approximately 4 ½ years. He continued that employment until December 2002 for a total of 24 years. Earlier that year he had been admitted to a psychiatric hospital and his father was named as his guardian and conservator by the probate court. He was 45 years old as of his last day at General Motors. He had received disability payment from General Motors and eventually qualified for Social Security disability benefits, too. He qualified and was ultimately receiving disability benefits from General Motors. The trial court determined that all but the pre-marital years of credited service were marital property having been accumulated during the marriage. It was divided equally between the parties. Husband appealed.
  Held: Reversed. The court of appeals determined from the evidence that the only reason the husband had begun receiving benefit payments was because of his disability. Otherwise, he would not be eligible for pension benefits until reaching retirement age under the plan. Further, the terms of the General Motor benefits provided that husband would receive the disability payments based on his years of service until either he reached age 65 (retirement age) or became capable of gainful employment. After age 65 the benefits would revert to being pension benefits in character. Thus, the benefits he was and would later be eligible for were partially marital and non-marital in character. The opinion notes that disability benefits are not marital property “… if they serve as a substitute for earnings lost due to the recipient's inability to work. In re: Marriage of Thomas, 21 S.W.3d 168,173 (Mo. App. S.D. 2000).”
  The case was remanded for a determination of which portion of the marital portion of the benefits will be awarded between the parties and to award husband the non-marital portion thereof.

Order of protection between brothers-in-law. Terry Pratt, Respondent, v. Chuck Lasley, Appellant, No. 65992 (Mo. App. W.D., January 16, 2007), Ellis, J.
  The two parties are brothers-in-law because they are each married to women who are sisters. Respondent was found to have assaulted the Petitioner and an order of protection was entered. The Respondent appealed asserting that the definition of family member in the statute (§455.020.1) did not apply since there is no blood relation between them.
  Held: Affirmed. “Had the legislature intended to limit the statute's applicability to those 'of kin' or related by cosanguinity or direct affinity as proposed by (respondent), the legislature would have used those terms in the statute.
  “The plain and ordinary meaning of the phrase 'related by marriage' includes one's brother-in-law.”

Source for Post:  The Missouri Bar

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One very important, and often overlooked, factor to consider as part of your dissolution of marriage is a re-evaluation, (or first evaluation as is often the case) of your estate plan.   If there is no plan in place, the laws that will determine how your estate will be divided upon your death change significantly when you are divorced.  If there is a plan in place, you will most certainly want to make changes for your future to match the changes in your life today.  Below are some very basic points on estate planning from about.com:

If you have assets, no matter what your age, marital status, or financial wealth, you should plan your estate in the event of your death or incapacitation. If you should die without a sound estate plan, someone will be exposed to additional grief and expense. If you become incapacitated, your bills might not get paid. You could also be put on life support which is OK unless you have strong feelings about your life being prolonged artificially if you have no chance for recovery. A little preparation and maintenance could make this difficult time less taxing for those you love and who love you.

There are many reasons to have a sound estate plan but here are eight I feel are most important. If you should die or become incapacitated, a sound estate plan could:

1. save your family thousands of dollars
2. distribute your assets to those of your choosing, not of the government's choosing
3. designate who will raise your minor children
4. make sure someone is authorized to pay your bills
5. avoid conflicts among your family members
6. make sure your assets aren’t divided among your children’s ex-spouses
7. keep your children from frivolously spending the inheritance
8. prevent death taxes.

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Divorce: Preplanning Strategies

Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Approximately 4 out of 10 marriages today end in divorce. In divorce proceedings, women lose financially, their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose precious time with their children.

One of the greatest contributors to divorce is the issue of "control" - either financial or personal. Who controls the bank account? Who sets the social agenda? When one partner to a marriage "controls", the other partner loses their sense of self. A divorce becomes imminent as the controlled partner tries to regain their self-esteem.

There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:

1. Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include:

• property you inherit;
• proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
• items owned prior to marriage; and
• gifts to one party rather than the family.

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

2. Establish Your Own Credit

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

3. Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

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The following article has recently appeared on at least a few of the family law blogs, which I found to be particularly interesting.  Thanks to the Oklahoma Family Law Blog and the Georgia Family Law Blog for sharing this information with us.

 

Marriage has become a delicate venture. According to the U.S. Census bureau, about nine out of ten people will marry sometime in their lives, but about half of first marriages will end in divorce. And while some marriages end peacefully, with both sides agreeing to an equal and fair settlement, some do not, and the ensuing process can get quite vicious.

When ex-spouses significantly distrust each other, it is advisable to engage the services of a lawyer, especially if one or both do not understand their household finances and the economic implications of marital settlements. In turn, attorneys often hire CPAs as forensic accountants to help represent the spouse who doesn’t have access to the family’s financial information. In these cases, the forensic analysis might include reviewing financial data to determine its accuracy and reasonableness; determining each spouse’s standard of living and disposable income; locating hidden assets; and determining what property may be considered separate from marital property, especially if one of the spouses runs a closely held business. This type of work has created a highly focused segment for the profession: forensic accounting in divorce engagements.

Marriage: The Leading Cause of Divorce? Out of the more than 2 million marriages performed last year, 60% were the first marriage for both bride and groom. Unfortunately, for those first marriages that do end in divorce, the average length of a first marriage is only about eight years. The median duration of second marriages that end in divorce is only about seven years.       

Most newlyweds probably don’t think of their wedding day as the beginning of a personal business partnership: making money, budgeting, accumulating assets, and investing for the future. Nevertheless, couples should still plan how to divide this property at the blissful beginning, not the bitter end. This planning could take the form of a premarital agreement, which may not be a perfect document, but is generally enforceable in all 50 states. This is why both spouses must understand their household’s finances. It is not a good idea to allow one spouse to run all the finances while the other spouse knows nothing about it. After all, the person you plan to spend the rest of your life with would never try to hide something from you … or would they?

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The following post is information for clients who have paternity or custody actions pending in Eastern or Western Jackson county Missouri about the PTLA program which is required by the Court.

PTLA (Parenting Together Living Apart) is a parent educational program designed to teach parents who have never been married to each other but have children together the value of co-parenting their child(ren) cooperatively so as to maximize the healthy emotional development of their child(ren). This program is most effective when utilized prior to mediation. There is no cost for attendance.

Program Objectives:

• Parents will have a better understanding of the importance of co-parenting.
• Parents will practice positive communication skills.
• Parents will learn about child development states in parental conflict.
• Parents will increase positive parenting skills to work with each other cooperatively.

PTLA Curriculum:

• Parental responsibilities
• Children’s basic needs
• Why children need both parents
• Emotional reactions to the lost relationship
• Children’s developmental states in parental conflict
• Paternity establishment
• Positive co-parenting
• Effective communication skills
• Responsive discipline
• Parenting time suggestions

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The Oklahoma Family Law Blog had a great post yesterday offering tips for a smarter divorce.  The post is reproduced as follows:

The best advice about divorce would be to prevent it if possible; nearly half of all marriages end that way--sort of. In reality, from a cumulative point of view, less than 41% of all the marriages end by divorce. The 50% figure stems from the annual divorce rate and is misleading because the people divorcing each year are not, for the most part, the same ones who are marrying. But whether the U.S. divorce rate is below 41% or closer to oft-quoted 50%, the fact is that divorce is common and, sadly, seems here to stay.

Perhaps more interesting is the fact that some researchers have found that nearly 80% of divorces are unilateral, as opposed to something both parties want. If this statistic is correct, then four out of five divorces are unwanted by one of the spouses. If you are the one who wants out, you'll have the power to decide when and how to best to approach the split.

This advantage is critical because once a marital dissolution petition is filed, many jurisdictions impose automatic restraints against shifting assets or changing the status quo ante (the way things were, just before the filing). That can complicate things if you do not plan ahead. One the other hand, statistics tell us that 70% of divorce filings are by women. So men, it's not likely you'll control the timing of the split, though you might control the purse strings.

But no matter who files, planning a divorce, or defending against one, can feel like taking on a second job, with so much to consider. For example, if you are the one who wants out, you must weigh whether you can trust your spouse not to financially annihilate you just to spite your decision to leave. Will he or she do everything possible to destroy what you worked so hard to attain while the marriage was working? Are there steps you can take to minimize the damage of divorce, while protecting your relationship with your kids, your property and your income?

Moreover, for many individuals, a divorce involves more than just dealing with finances and the kids. It affects not just the immediate family but perhaps elderly parents that need to be looked after, not to mention relationships with extended family members, friends and even beloved in-laws. Because of the emotional upheaval, many couples benefit from therapeutic counseling, as well as financial planning, in the act of dismantling a life built for two.

The bottom line is that you need to protect your own interests, while still being reasonable, if possible. And though you might think your spouse will act prudently, don't count on it. Very few people encounter divorce without responding in an emotional way. In the words of Ben Franklin, an ounce of prevention is worth a pound of cure.

You should be prepared for the chance that your divorce may become adversarial and that, for a while, your spouse will turn into a person you never knew existed. So try to bear in mind that while you may be taking an action that you think is merely rational, it's very possible that he or she will interpret your actions differently or, perhaps worse, offensively, creating more problems.

Naturally, with an iron-clad prenuptial or postnuptial agreement, the divorce process will proceed in a more predictable fashion. But even then, expect your spouse to fight the the agreement's enforceability based on grounds that it might be unconscionable now to enforce it, although it was perfectly fair when it was executed.

On the whole, divorce brings uncertainly that can breed anxiety, hostility or worse. But there are steps you can take to place yourself in a more advantageous position while you determine if your differences are irreconcilable or not.

Source: Forbes.com.

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