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

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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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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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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Pension Was Marital And Non-Marital Property
Pension is a hybrid of marital and non-marital property; the former to the extent that it represents deferred payment of wages earned during the marriage, and the latter to the extent that it represents compensation for future wages lost due to disability. Remanded to Circuit Court to reconsider property and debt division, and maintenance awards.
Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant. Missouri Court of Appeals Western District

Separable Finality Did Not Apply
When a party to an action for dissolution of marriage dies, action continues if Circuit Court has already dissolved marriage "even though the order may be partial, interlocutory or not a final judgment resolving all issues in the case." But action abates if Circuit Court has not already made some order purporting to dissolve the marriage. Order nunc pro tunc cannot correct that omission.
Mary Ruth McMilian, Appellant, v. James Henry McMilian, Respondent. Missouri Court of Appeals Western District

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I found the following post on the divorcesupport.com blog, and it caught my attention because I have many cases where missing spuose/parent is in issue.  The post appears below, with a few comments following.

We hear from many spouses who are trying to get a divorce, but they do not no the whereabouts of their spouse. This is a common situation, especially if you have been separated for quite some time. The process for divorcing a missing spouse is somewhat more complicated and lengthy do to extra procedures one must follow. This type of divorce is commonly referred to as a “Divorce by Publication”.

A “Divorce by Publication” requires a spouse to prove to the court that he or she has made a legitimate attempt to local his or her husband or wife. In order to fulfill the requirements of the court a public legal notice announcing the filing of the divorce must be placed in the newspaper for a specified period of time (typically 30 days).

We suggest going through the following steps to try to locate your spouse. Who knows you may already be divorced.

1. Contact Friends and Family.
2. Call Information.
3. Contact Past Employers.
4. Do a Search Report at ussearch.com

If you do find your spouse, you can have him or her professionally served with your divorce paperwork. This will almost always speed up the process. What ever you do, do not intentionally avoid finding your spouse.

Believe it or not, this is not uncommon at all, regardless of the type of case.  The above is great advice, but in Missouri, it is not just as easy as just publishing notice and calling it a day.  Although service by publication is available in Missouri, a court can not do anything other than dissolve the marriage.  The court cannot divide marital property, set up custody or visitation, or award child support.  This means that in order to proceed in most cases, there must be personal service, and you must find the spouse/other party to obtain it.  I have had, and currently have, cases where people have spent thousands of dollars on investigators, process servers, searches, skip traces, etc. to try to find a missing spouse or  parent. This can add a significant amount of time and cost to your case, and if children are involved, can even negatively affect the entire outcome of the case.  For example, the court could lose jurisdiction over the children if the case is on file and too much time passes while trying to track down a spouse.  This creates a tremendous strategic disadvantage.

The lesson of the day here is that, particularly if kids are involved, the whereabouts of the other spouse (and kids)  should be known at all times.  The above points are great starts for trying to locate them, but it should never come to that.  Time, money, family, and future are all at stake to be lost.  However, If it is just a case where spouses have been separated for a long period of time and there are no kids, service by publication will usually suffice.

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