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2921 Lemay Ferry Rd
St. Louis, MO 63125
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GMtaylor@greenetaylorlaw.com
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DIVORCE: Frequently Asked Divorce Questions
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How do I get divorced in Missouri?
Do I have to live in Missouri to file for divorce in Missouri?
How do I know what circuit court to file my divorce case in?
What if my spouse already filed for divorce? What do I have to do now?
What do I do if I'm ready to file my petition for dissolution but I don't know where my spouse is?
One spouse has filed a petition for dissolution and the other spouse has filed an Answer. Now what?
What is the difference between marital and nonmarital property?
Will a court split our property in half in a divorce?
What will happen to my kids during a divorce?
Do I really need a lawyer for a divorce?
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How do I get divorced in Missouri?
In Missouri, the legal mechanism for ending a marriage is called a "dissolution of marriage". Most people still just call it a divorce. Missouri is a no-fault state, which means that in order to obtain a dissolution you don't have to testify that your spouse was unfaithful, abandoned you, abused you, and so on. A dissolution will be granted if "the marriage is irretrievably broken" and "there is no reasonable likelihood that the marriage can be preserved".
To start an action of dissolution of marriage in Missouri you must:
- File a petition with the court. Missouri Statute 452.310.2 lists what must be included in this initial pleading. The laws have changed recently and effective August 2009 only the last four numbers of the parties' social security numbers should be included in this document. Other changes have occurred to attempt to better protect the privacy of the individuals involved and a lawyer would be able to advise you best as to what changes have taken place.
- If you have minor children you must also file a parenting plan as set out in Section 452.310.7.
- File a Family Court Information Sheet. This document can vary depending on which Court you are filing your action.
- Cause the court to issue a summons to your spouse as set out in Section 452.311. The summons will notify your spouse that a petition for dissolution has been filed. Or in some cases if your spouse is willing to sign a Waiver of Service this can be done in lieu of actual service.
- Pay the filing fee. The amount of the filing fee will vary depending on where you filed. The amount is set by the local rules of the circuit court.
- There are other pleading and documents that must eventually be filed to get a judge to dissolve a marriage, such as a Statement of Income and Expenses. And a lawyer would strongly advise you to file other documents, such as a Separation Agreement, but in most situations the above listed documents are a bare minimum of what is needed to get the action started.
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Do I have to live in Missouri to file for divorce in Missouri?
You or your spouse must have been a resident of the state of Missouri for 90 days before the petition for dissolution can be filed in Missouri.
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How do I know what circuit court to file my divorce case in?
Missouri Statute Section 452.300 tells you to file in the county where you reside, or the county where your spouse resides.
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What if my spouse already filed for divorce? What do I have to do now?
You must file an Answer within 30 days. In this pleading, you must admit or deny the things that your spouse stated in the petition.
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What do I do if I'm ready to file my petition for dissolution but I don't know where my spouse is?
In Missouri you can serve your spouse by publishing notice in an appropriately circulated paper. This may allow you to get divorced, but if your spouse doesn't see the notice and respond by filing an Answer, you will be unable to get a order for them to pay you money which you may otherwise be entitled to. To find your spouse you can hire a private investigator, run a records check or have a lawyer assist.
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One spouse has filed a petition for dissolution and the other spouse has filed an Answer. Now what?
That depends on in which county your case has been filed. Each county has their own local rules that may dictate the next several steps. The state of Missouri has laid out some requirements which all courts must also follow. Generally speaking:
- Missouri statute section 452.315 allows a court to issue a temporary order to preserve the status quo while the case is pending.
- Discovery is exchanged requiring you to report all of your income, property and debts. In these documents you must report ALL income property and debts, regardless if it is marital or nonmarital property (discussed below).
- If you have minor children you may be required to attend an educational class. If there is a dispute over custody of your minor children you will be required to attend mediation. Section 452.372.
- The court may order a dissolution of marriage in at little as 30 days from the date you file your petition as long as there are no issues to be disputed and a proposed separation and settlement agreement has been drafted. Practically speaking this doesn't happen often because it usually takes more than 30 days for two parties wanting a divorce to get all the necessary paperwork together and agree on how all property is to be split and to settle custody and visitation issues if there are children involved. Spouses may think they agree on all issues -- "I don't want anything from you, just give me the kids!" -- but when its time to put everything down on paper spouses start to see how awful that type of agreement can be.
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What is the difference between marital and nonmarital property?
Marital property is any property acquired during the marriage (house, car, furniture, clothes, income, retirement funds, etc.) EXCEPT if it can be defined as nonmarital property.
Non-martial property is any property that was acquired before the marriage AND any property that was a gift or inheritance regardless of when it was received.
Please note that there are ways in which nonmarital property can be converted into marital property and ways in which property that was acquired after the marriage can be considered nonmarital even if it wasn't a gift or inheritance, but those situations are so fact particular that it would be difficult to cover those scenarios in this type of general informational forum.
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Will a court split our property in half in a divorce?
It is the job of the court to issue each spouse their own nonmarital property and to divide only the marital property. Marital property is divided equitably (fairly), not equally (in half). When dividing property, the court takes in certain facts to consider as provided by section 452.330. These factors include the economic circumstances of each party, the contributions of each spouse during the marriage, the value of each spouse's nonmarital property, conduct of the parties, and where the children will live.
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What will happen to my kids during a divorce?
Missouri courts favor joint legal and joint physical custody of children. This is where the parties share major decision-making and each parent has significant, but not necessarily equal, time with the children.
If you find yourself in a custody battle with your spouse, there is a long and very complex scheme for determining child custody which is found in Section 452.330.
And if you are awarded joint-custody, this does NOT mean that you will not owe child support. Child support is not necessarily a straightforward mathematical equation anymore. Section 452.340 lists several variables that factor into the equation. Parties use court Form 14 and the Presumed Child support chart to propose the amount of child support.
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Do I really need a lawyer for a divorce?
Under Missouri law you are not required to hire a lawyer to obtain a dissolution of marriage. You can find resources designed to assist pro se parties (parties without lawyers) on your local circuit courts website. And if you so choose, all forms that are needed to file a divorce can be readily found FOR FREE on the appropriate court's website, and if you don't find it there don't use it because it is likely to be wrong. HOWEVER, even if you research dillegently, figure out which court you should be filing for divorce in and then find the proper forms, like many people you still might end up with forms from the wrong court or only end up with half the forms. And in many cases the provided forms are not sufficient to accomplish what is necessary. There are dozens of other pleading that may be filed in a dissolution for marriage that are not covered by any of the forms. And even if you get those right, you really need a lot of knowledge, a bit of practical advice and experience to complete the forms correctly. It's kind of like the hospital handing a patient a scalpel and saying, "Here is one tool you need, now take out your own appendix." How many people do you think would blindly proceed?
There is no place else you will be able to get legal advice from besides a lawyer. Under Missouri law, it is a crime to practice law without a license, which means that the friendly court clerk that you were counting on will not be able to tell you how to draft your petition. And if you draft it absolutely incorrectly, all she can do is accept it with a smile. She is not even allowed to suggest to you that you may have just tangled yourself into a web of trouble that may become impossible to fix. Once a Missouri court orders a dissolution, issues related to distribution of property are final and cannot be modified at anytime in the future.
If you decide not to hire an attorney, understand that you will have to follow the rules of the court where your case is filed as well as all the rules and statutes of the state of Missouri. In addition, there is case law that may govern property distribution and other aspect of your case. As you can see from the minimal amount of law and information I have laid out for you above, this in itself can be a daunting task. And not only will you have to learn the law and court rules, you will also have to draft your own pleadings, file your own pleadings in the right place and on time, contact your spouse to negotiate, gather your own evidence, defend yourself, and be your own advocate in court. If you are going through a divorce you are probably dealing with enough as it is.
My advice? Hire an attorney. I don't say that because I am an attorney. If you don't hire me, hire someone else. But don't be fooled into thinking that this is an easy process that just requires you to fill out a few forms. I mostly see this where couples say, "We don't have a house or kids so what is there to left to do?" If you don't have kids, that makes the process a little easier, but just because you don't have a house, doesn't mean you don't have property to divide. If you have a job, your income during the marriage is marital property. If you bought furniture, a television, cars, clothes, ANYTHING, you still have to decide how it will be divided, or fight about it in court.
And if you are convinced you need an attorney, but just simply cannot afford one, ask your attorney about providing "unbundled legal services" to make it affordable for an attorney to at least review your self-prepared pleadings to ensure they conform with the law.
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