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Dissolution of Marriage/Divorce
The legal term in Missouri for divorce is “dissolution of marriage.”
The following is a very abbreviated outline of the steps in a dissolution of marriage action:
You and your spouse must have resided in the State of Missouri for a period of 90 days for the court to have jurisdiction over the marriage.
One party, known as the “Petitioner”, files a Petition for Dissolution of Marriage requesting the court to dissolve the marriage, divide the marital assets and enter orders for child custody and support. The Petitioner causes the Petition to be “served” upon the Respondent
The other party, known as the “Respondent”, files an Answer to the Petition for Dissolution of Marriage and a Counter Petition for Dissolution of Marriage also requesting that the court dissolve the marriage, divide the marital assets an enter orders for child custody and support.
The Petitioner then files an Answer to the Counter Petition for Dissolution of marriage.
The case must be on file for 30 days before the court can enter a judgment dissolving the marriage.
A period of “discovery” (which is the gathering and sharing of information about your case) begins. Discovery usually always includes financial discovery. Financial discovery is necessary not only to get an entire picture of the financial situation of the marriage, but also to get accurate information to compute child support. If custody of children is disputed, discovery will include the gathering of information pertaining to custody. Discovery will include the “Income and Expense Statement”, the “Statement of Marital and Non-Marital Assets and Debts” and sometimes include Interrogatories, which are specific questions about the facts of the case submitted by one side to the other which must be answered under oath, and Requests for Production of Documents, which are requests for specific documents to show, for example, the value of certain property such as balances in accounts. Sometimes discovery can include a deposition.
If the parties are not in agreement the court has the option of ordering mediation. The parties can also voluntarily participate in mediation without a court order in an attempt to resolve the issues on which there is not agreement. Mediation is the process of voluntary settlement negotiation which is facilitated by a neutral third party who has no decision-making power. This neutral third party is usually a lawyer or a therapist. The hallmark of mediation is its focus on the interests, needs, values and goals of the parties, as opposed to their positions. The mediator tries to facilitate an agreement, but does not force either party to agree.
Finally, if the parties are unable to reach settlement through negotiations between themselves and the lawyers, the case will proceed to trial. There are a number of court appearances that you will have before the trial in a contested case. Some of these are the case management conference and the pretrial conference. These are primarily scheduling conferences. Finally, at the trial of your case, the judge will make all of the decisions regarding distribution of your marital assets and debts, and decisions related to child custody and support.
The final action of a case, whether it is contested or uncontested is the entry of the judgment of dissolution of marriage.
Some specific notes on dissolution of marriage:
In a dissolution of marriage the court shall set apart to each spouse such spouse's nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors including:
(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.
In other words, marital assets and debts are divided “equitably.” Equitable does not necessarily mean 50/50, but often means something close to that. There are some behaviors of a spouse or some facts of a case that may result in an inequitable division of assets, where one party receives more of the assets than the other party. You will need to discuss with your attorney the specifics of your case in that area.
“Marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.
However, if you have inherited money, for example, and deposit it into a bank account that you hold jointly with your spouse, the court may consider that you have changed the character of the money to “marital” and thereby made it subject to division by the court as “marital” property.
Hidden Assets: The discovery process is designed to discovery “hidden assets.” Most people are not able to successfully hide assets from their spouse’s attorney. It is imperative that each spouse fully complete the discovery documents so that all assets can be distributed by the court. In the event assets are found later to have been “hidden” during the divorce process, the divorce case can be re-opened by the injured spouse and division of those assets can occur.
Credit Cards/Debts: Any debt incurred during the marriage- even those incurred after the separation- is considered “marital debt.” Even though you may not have incurred the debt personally, you may be responsible for it. If you believe that your spouse will run up the credit cards, you have the right to notify the credit card company and request that they freeze the account. That means that neither your spouse nor you would be able to continue to use the credit card.
Any debt you are jointly liable on, such as credit cards or the mortgage on your house will continue to be listed on your credit report after the dissolution of marriage unless there is a refinancing of the debt into your spouse’s name alone. This is important because it may limit your options for purchasing a new home.
With respect to the mortgage, remember that if you or your spouse fail to make timely payments on the mortgage, your credit report will be significantly adversely impacted and the mortgagor may foreclose on the property. The same is true for liens against vehicles you may own. Remember, liability on the mortgage is not the same as ownership of or possession of the property.
To prevent your spouse from taking out increased credit or additional credit cards being issued, and to receive a copy of your credit report, you must contact the following companies and a note must be added to your credit report indicating “no credit is to be given without calling me at (number).” Keep copies of all of the correspondence you have with the credit reporting agencies.
Trans Union Consumer Relations Division : www.transunion.com
Experian : www.experian.com
There are a number of on-line resources available to assist you in monitoring your credit report/credit status in addition to the three credit reporting agencies themselves.
Financial misconduct is when one spouse has engaged in behavior that has resulted in a significant financial drain on the marital estate. This could be gambling, excessive use of credit cards, diversion of assets outside of the marriage, or other actions that result in a financial drain on the marital estate. If you have concerns in this area, you need to be sure to discuss them specifically with your attorney.
Adultery/Cheating: While most cases of adultery are extremely emotionally painful, unless the cheating spouse has created a drain on the marital estate, adultery in and of itself will not necessarily result in an inequitable division of assets nor will it necessarily result in the cheating spouse having less time with the children.
Dating: if you are married, please remember you are married until after the judge signs the judgment dissolving your marriage. We generally do not recommend that you “date” until after this date because the judge can consider ALL of your conduct, including after the date of separation, in distributing property and determining custody of the children.
"Maintenance": Maintenance is money paid by a spouse to a former spouse to assist in the support of the ex -spouse. It used to be called “alimony.” The court must find that the spouse 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 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.
2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
Physical Injuries inflicted on you: Missouri Law provides for a cause of action for wrongful acts committed against you that cause personal injury to you. For example, your spouse hits or shoots you. A claim for these must be filed at the time of your dissolution and is separate cause of action from your dissolution action. This claim will be tried before a jury. We will not file such a suit unless directed to do so by you in writing and we agree to undertake your representation on such a matter.
JUDGMENT RENEWAL: Your judgment is final thirty (30) days after it is signed by the judge, BUT any benefits you receive under the Judgment (i.e. child support, maintenance, property, benefits, etc.) must be renewed every ten (10) years from the date of the Judgment or the Judgment lapses. If you permit a judgment to lapse, you will not get the property or money the judgment sets aside to you. We will NOT file any renewal unless directed in writing to do so after the 8th year of the Judgment and we agree on the necessary attorney fees.
To make an appointment, please call me at 816-256-5440.
I am available to help you in the following Missouri counties: Jackson, Clay, Platte, Cass , Buchanan, Andrew, Davies, Caldwell, DeKalb, Clinton, Atchison, Holt, and Nodaway.
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