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

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.

• Email This
• Print
• Comments
• Trackbacks

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.  

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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

• Email This
• Print
• Comments
• Trackbacks

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

 

 

 

 

 

 

• Email This
• Print
• Comments
• Trackbacks

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?

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Record supports Trial Court's order for anger management, and order is sufficiently specific to enforce. Trial Court did not stop Father from participating during in-chambers interview, and Child's statements in that procedure support custody order. Trial Court erred by issuing parenting plan that failed to address custody on Child's birthday and school holidays, requiring remand.   The entire opinion can be read at  In re the Marriage of: Patrick Lynn Murphey and Angelic Marie Murphey. Patrick Lynn Murphey, Petitioner/Appellant v. Angelic Marie Murphey, Respondent/Respondent.

• Email This
• Print
• Comments
• Trackbacks

The Following practical tips are offered by New York Times/about.com author Jennifer Wolf on how to get through your first year as a single parent.

1. Develop a Support Network
   This is absolutely crucial. You need to know who you can depend on right now. Most likely, this network includes your immediate family and friends, but think about other people in your life who might also help you. Making an actual list of who these people are can help remind you that you're not alone. In addition, consider joining a formal support group for single parents.
2. Ask for Help
   This is one of the most difficult things to do. But there are people around you who would love to help! Keep in mind that allowing others to help you is a gift to yourself and to the person assisting you. Sharing in one another’s lives during difficult times affirms our human connection and brings a sense of purpose to everyday living.
3. Schedule Time to be Alone
   Time is a very powerful tool. It will bring you healing, hope, and perspective. Right now, it’s important that you create pockets of time in your life when you can just be. Time when you’re not accountable for completing a task or responding to questions. Time to sit, to think, to ponder.
4. Think Outside the Box
   If finding time to yourself sounds impossible, consider some creative solutions, like swapping babysitting time with a neighbor or waking up a half-hour before the rest of your household. The time that you give yourself is precious, and it will be fruitful in helping you to establish reserves of inner strength.
5. Be Present with Your Kids
   When you're with your children, make an effort to be emotionally present with them. It would be easy to retreat into your heart right now, but this is a time when your children truly need you more than ever. Simple activities like playing a board game or taking a walk together can go along way toward communicating the message that life will go on and they will, indeed, be okay.
6. Get the Facts About Your Situation
   You might be tempted to make quick decisions right now about where to live and how to handle your finances. However, ignorance in this area can be extremely dangerous, and so can making rash, uninformed decisions. For now, take the time to find out where you stand financially. Gather the necessary papers in order so that when you are emotionally ready to make changes, you'll be prepared and able to make informed decisions.
7. Grieve
   Expressing your feelings is important to your overall health. Consider writing in a journal or scheduling a regular "date" with a friend to vent, cry, and grieve. Single parents are born of many different situations. Whether you've experienced the loss of a spouse, the end of a marriage, or an adjustment to the dream you once held for your life, it is important to grieve and process the loss before moving on.
8. Pay Attention to your Physical Health
   This may be a time when you are feeling especially worn down and drained. Combat that by making the effort to eat healthy foods and choose energizing ways to fuel your body. Instead of relying on extra caffeine, try taking a walk at lunchtime. Additionally, getting adequate rest is crucial to your healing and ability to cope. Forgo the temptation to sit in front of the TV. Instead, read a book and retire early.
9. Identify What Gives You Strength
   In the past, how have you handled challenging times in your life? What most energizes you and reminds you that you possess the strength needed to meet the current challenge? Focus on what has worked for you in the past.
10. Let Go of What Isn't Working
    Likewise, let go of what has not worked for you. As you move through this first year, reflect on the habits and choices that have not served you well, and decide to change them. In addition, if there are things from the past that you cannot change, let go of unhealthy guilt and remorse.
11. Focus on the Positive
    This is a time of new growth in your life. Take the time to think about the things that are going well for you. Having a positive attitude - even in the midst of extreme circumstances - can empower you to move ahead and provide your children with a tangible example of the coping strategies you want them to adopt.

Source for Post: singleparents.about.com

• Email This
• Print
• Comments
• Trackbacks

Divorce is stressful for parents and children alike. Although children's emotional reactions usually depend on their age at the time of the divorce, many children experience feelings of sadness, anger, and anxiety - and it's not uncommon for these feelings to be expressed in their behavior. Often, the child's emotional reaction can be quite different than the parent's, and it's important to understand these differences. For example, a parent may feel a sense of relief that a difficult period is coming to some resolution, whereas the child may feel a sense of loss.

Fortunately, there are things you can do to help your child during a divorce. By minimizing the stress the situation creates and responding openly and honestly to your child's concerns, you can help your child through this difficult time.

As soon as you're certain of your plans, talk to your child about your decision to divorce. Although there's no easy way to break the news, both parents should be present when a child is told, and feelings of anger, guilt, or blame should be left out of the conversation. At best, this is a difficult message to communicate, but if you handle it sensitively, you can help make it less painful for your child.

Although the discussion about divorce should be tailored to your child's age and development, all children should receive the same basic message: "Mommy and Daddy used to love each other and were happy, but now we're not happy and have decided we'd be happier apart. What happened occurred between us, but we will always be your parents and we will always be there to love and take care of you."

It's important to emphasize that your child is in no way to blame for the breakup and that the unhappiness is not related to him or her. Children tend to blame themselves for the failure of their parents' marriages, and they need to be reminded frequently that it is not their fault. Finally, your child may question whether your love for him or her is temporary (because it was with your spouse); reassure your child that even though you're getting a divorce, you love him or her permanently and unconditionally.

When it comes to answering questions about your divorce, it's important to give kids enough information so that they're prepared for the upcoming changes in their lives but not so much that it frightens them. Try to keep your feelings neutral and answer your child's questions in an age-appropriate way and as truthfully as possible. Remember that kids don't need to know all the details; they just need to know enough to understand clearly that although divorce means separating from a spouse, it doesn't mean parents are divorcing their kids.

Not all children react the same way when told their parents are divorcing. Some ask questions, some cry, and some have no initial response at all. For kids who seem upset when you break the news, it's important for parents to let them know that they recognize and care about their feelings and to reassure them that it's OK to cry.

For example, you might say, "I know this is upsetting for you, and I can understand why," or "We both love you and are so sorry that our problems are causing you to feel this way." If your child doesn't have an emotional reaction right away, let him or her know that there will be other times to talk.

Most children are concerned with how the divorce will affect them:

• Who will I live with?
• Will I move?
• Where will Mommy live or where will Daddy live?
• Will I go to a new school?
• Will I still get to see my friends?
• Can I still go to camp this summer?

Be honest when addressing your child's concerns and remind him or her that the family will get through this, even though it may take some time.

Source for Post: www.kidshealth.org

• Email This
• Print
• Comments
• Trackbacks

In its simplest form, a deposition is the giving of oral testimony under oath before trial.  Depositions are conducted in front of a court reporter and will assist your attorney in the preparation for trial.  The use of oral depositions is a standard procedure in family law cases for discovering relevant and material facts, determining the strategy of the case, and searching the concience of the person being deposed (called the deponent).

It is very important to take the deposition seriously.  As a deponent, the attorney taking the deposition is searching for ways to discredit the deponent, obtain information, and obtain admissions.  The defending attorney is seeking to avoid harmful admissions, present the facts in the best light possible, and to protect the deponent's creditability.

You should remember that the deposition is usually the first chance the opposing attorney has a chance to see you, so you must make a good impression, and treat the deposition as if you were appearing in court.  You should do the following:

1.  Be clean and wear neat, conservative clothing

2. Be respectful

3.  Tell the truth to all questions asked

 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks (1)