Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

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. 

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks (1)

Circuit Court May Depart From Recommendations On Physical Custody
Guardian ad litem and court-appointed therapist both recommended joint legal custody and supervised visitation for Father. Circuit Court followed the former but not the latter. When evidence supports an alternative award, “the trial court is not bound by the requests of any party as to custody or visitation, even when both parties agree.” No judgment required Father to pay child support and Mother forgave some of it, so Circuit Court did not abuse its discretion in awarding no retroactive child support.
In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant. Missouri Court of Appeals Southern District

Circuit Court Must Decide Contempt Action
Upon dismissal of motion to modify custody, guardian ad litem was discharged, and testified only as to fees, mooting motion to remove guardian. Circuit Court issued an order that Father show cause why he should not be held in contempt for failure to pay child support. Circuit Court consolidated contempt action with child support modification action for all purposes, giving notice to Father, so that Circuit Court's failure to rule on it did not result in loss of jurisdiction. Circuit Court must decide it. Record supported Circuit Court's findings as to parties' relative income.
Angela Shapiro McCoy, Appellant v. Samuel Scavuzzo, Respondent. Missouri Court of Appeals Western District

 Findings Show Grounds For Termination Of Parental Rights
Presence of findings related to abuse shows that parental unfitness was not the sole grounds for termination of parental rights. Past abuse and lack of present reform raise presumption of future threat to Child's future.
In the Interest of: K.R.G., A.K.G., and R.C.G., C.G., Appellant v. The Christian County Juvenile Office, Respondent. Missouri Court of Appeals Southern District

Objection To Relocation Waived
Statute requires notice before permanently relocating children's residence. After temporary relocations, Mother gave notice of intention to permanently relocate as required by statute. Father did not file objection as required by statute and so waived objection.
Gina M. Dent, Petitioner/Respondent v. Charles W. Dent, Respondent/Appellant. Missouri Court of Appeals Eastern District

Source for Post:  The Missouri Bar

• Print
• Comments
• Trackbacks

Susan J. Southard, Petitioner/Respondent v. James A. Southard, Respondent/Appellant, No. 89217 (Mo. App. E.D., November 27, 2007), Romines, J.
  This was an action for modification heard by a family court commissioner. The commissioner's findings and recommendations were adopted and the original judgment was modified as to custody. Father filed a motion for de novo rehearing. The motion was denied. He appealed. One of the claims made in father's motion was that the trial court's judgment was deficient in making statutorily required findings for modification of custody.
  Held: Affirmed.
  By failing to file a motion to amend the judgment to make statutorily required findings, father waived his right to make that argument on appeal. Rule 78.07(c).
“The fact that Rule 129 exists does not mean that a family court judge is confined to ordering relief found in Rule 129 alone. While Rule 129 does govern procedures in front of commissioners and supersedes all inconsistent rules by its own terms, see Rule 129.02, it does not preclude the application of rules with which it is not inconsistent.”
  “Rule 78.07(c) is clear that a motion to amend must be filed in order to preserve error in all cases in which failure to make statutorily required findings is raised. A party simply must file both motions if he wants a rehearing in front of a circuit judge but wishes to preserve his claims of error for appeal in the event that motion for rehearing is denied.”
  It did not matter that the post-judgment motion filed by father, and designated as a motion for rehearing, contained all of his claims of error, including those related to Rule 78.07(c) deficiencies. Dual motions were required.

Source for Post:  Missouri Bar Courts Bulletin

• Print
• Comments
• Trackbacks

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

• Print
• Comments
• Trackbacks

Evidence showing Husband's abuse and attempts to co-opt Child into abusive behaviors supported order of restricted and supervised visitation. Testimony against Husband was not biased, just unfavorable. Trial Court erred in classifying property as separate even though there was no evidence to rebut the presumption that the property was marital, but such error did not cause property division to be so unduly weighted in either party's favor as to constitute an abuse of discretion.

Entire opinion of this case can be read here

• Print
• Comments
• Trackbacks

If you are contemplating filing for divorce, or if you are already involved in a proceeding, it is critically important for your attorney to have a complete financial picture of both spouses.  This includes income, asset, and debt information for both parties to the action. The earlier this information is gathered, the better.  By being prepared BEFORE the case is filed, you can help your attorney discover income or assets that your spouse may be hiding, and you can save time and money as information gathering becomes harder after the parties split and/or the tensions of the litigation take hold.

The following is a general list of documents that you should have available or readily accessible when you begin your case:

1. Income Tax Returns. Completed personal, corporate, partnership, joint venture,

or other income tax returns, state and federal, including W-2, 1099, and K-1

forms, in your possession or control for the last 3 years.

2. Income Information. Current income information, including payroll stubs and all

other evidence of income since the filing of your last tax return.

3. Personal Property Tax Returns filed in this state or anywhere else from the start

of the marriage..

4. Banking Information. All monthly bank statements, passbooks, check registers,

deposit slips, canceled checks, and bank charge notices on personal and business

accounts, certificates of deposit, and money market and retirement accounts from

banks, savings and loan institutions, credit unions, or other institutions in which

you or your spouse has an interest.

5. Financial Statements submitted to banks, lending institutions, or any other persons

or entities, which were prepared by you or your spouse at any time during

the last five (5) years.

6. Any Loan Applications made within the last five (5) years.

7. Brokerage Statements. Monthly statements from all accounts of securities and/or

commodities dealers or mutual funds maintained by you or your spouse during

the marriage, and held individually, jointly, or as a trustee or guardian.

8. Stocks, Bonds and Mutual Funds. Certificates, if available, of accounts owned by

either spouse during the marriage or pre-owned by you.

9. Stock Options. All records pertaining to stock options held in any corporation or

other entity, exercised or not exercised.

10. Pension, Profit Sharing, Deferred Compensation Agreement, and Retirement

Plans or any other kind of plan owned by you or by any corporation in which

you or your spouse has been a participant during the marriage, including annual

statements.

1. Income Tax Returns. Completed personal, corporate, partnership, joint venture,
or other income tax returns, state and federal, including W-2, 1099, and K-1
forms, in your possession or control for the last 3 years.

2. Income Information. Current income information, including payroll stubs and all
other evidence of income since the filing of your last tax return.

3. Personal Property Tax Returns filed in this state or anywhere else from the start
of the marriage..

4. Banking Information. All monthly bank statements, passbooks, check registers,
deposit slips, canceled checks, and bank charge notices on personal and business
accounts, certificates of deposit, and money market and retirement accounts from
banks, savings and loan institutions, credit unions, or other institutions in which
you or your spouse has an interest.

5. Financial Statements submitted to banks, lending institutions, or any other persons
or entities, which were prepared by you or your spouse at any time during
the last five (5) years.

6. Any Loan Applications made within the last five (5) years.

7. Brokerage Statements. Monthly statements from all accounts of securities and/or
commodities dealers or mutual funds maintained by you or your spouse during
the marriage, and held individually, jointly, or as a trustee or guardian.

8. Stocks, Bonds and Mutual Funds. Certificates, if available, of accounts owned by
either spouse during the marriage or pre-owned by you.

9. Stock Options. All records pertaining to stock options held in any corporation or
other entity, exercised or not exercised.

• Print
• Comments
• Trackbacks