Missouri Divorce and Family Law Blog

Child support judgment not subject to collateral attack in later proceeding; Court of Appeals can amend child support judgment based on judicial admission.

Kansas City Divorce Attorney Mark Wortman — Sat, 19 May 2012 09:04:06 -0600

Recent Case: TLD v. JRD Missouri Court of Appeals, Western District - WD73385

Mother appeals from the trial court's amended judgment order of modification retroactively modifying Father’s child support obligation and ordering Mother to pay Father $19,305.00 in overpaid child support accumulated during the retroactive period. Mother claims the trial court erred in calculating the overpayment.

Even if the trial court erroneously characterized an amount that Mother credited Father, in connection with a settlement which led to a reduction in Father's child support obligation in 2005, as an amount "paid" by Father, that error played no role in the calculation of Father's judgment. Mother's suggestion that Father's judgment against her should be reduced by the credited amount constitutes an impermissible collateral attack on the 2005 Modification which fully and finally determined Father's then existing arrearage.

The trial court's determination that Father was entitled to a reduction in his child support arrearage as of the time of trial by an abeyance amount addressed in the 2005 Modification was not against the weight of the evidence.

Father's judicial admission regarding the amount of his child support arrearage as of the time of trial conclusively negated the trial court's ability to find that all arrearages accumulated after the 2005 Modification had been satisfied and paid in full. Thus, the trial court erred in failing to reduce Father's judgment by Father's admitted arrearage.

Held: Affirmed in part, and reversed and modified in part.

Family lawyers and Divorce Attorneys function hand in hand with Forensic Accountants

Kansas City Divorce Attorney Mark Wortman — Mon, 14 May 2012 19:26:51 -0600

The following post was contributed by guest author Grant Webb, an accounting and accounting law writer for Bisk Education and Villanova University.

Forensic Accountants Fill a Unique Niche

Family law and divorce cases are often quite complex. Depending on the number of family members involved, the amount of assets at stake, and the specific circumstances of the case, even the most experienced attorney might need to acquire additional expertise to achieve the best results for the client. In cases where assets may have been hidden, misrepresented, under-valued or mysteriously liquidated, an experienced forensic accountant may provide the expertise necessary to uncover the facts needed so that the case can move forward in an effective manner.

While an attorney secures a skill set that allows him or her to build a case and argue effectively on behalf of a client, an attorney’s skills are not designed to address the intricacies mastered by forensic accountants. A forensic accountant’s specialized training and highly developed analytical skills target asset documentation and manipulation. Therefore, a forensic accountant can augment even the best attorney’s cases by providing an added layer of investigation, documentation, and reporting of related facts that may serve to significantly strengthen a client’s case. A Certified Forensic Accountant has completed a course of study that includes an in depth CPA review, work experience in forensic accounting, and training related to litigation and the judicial system which complements the other skills for specific applications such as in divorce proceedings.

Attorneys and Forensic Accountants Working Together

With the increase in sophisticated technology over the past decade also comes the dawn of more sophisticated investigative power tools. At the same time, people who intend on hiding assets have also become stealthier. When a marriage with significant assets needs to be evaluated for net worth, the assets are often spread across many different areas. Property, businesses, savings accounts, mutual funds, municipal bonds, antiques, jewelry, and recreation items like watercrafts for example are all items that need to be documented and valued. Anticipating the divorce or other family litigation, one of the involved parties may begin to re-title items, sell off or give away valuable possessions to a close friend or relative for later retrieval, and in general hide investments. While the family or divorce attorney is building the case with a general understanding of these facts and other related details, a forensic accountant can usually retrieve highly detailed evidence to make the case stronger. Drawing connections to see the whole picture is a forensic accountant’s fortè. Working together with a family or divorce attorney, a forensic accountant presents a formidable partner on a legal team where financial wrong-doing is an important topic of the investigation.

Savvy Clients Keep the Options Open

A complex case requires the expert knowledge of professionals who can secure the best possible outcome for a client. Hiring an attorney who is accustomed to bringing in and working effectively with other expert professionals such as a forensic accountant could mean a more favorable outcome. While cost is always a concern when pursuing legal solutions to disputes, many settlements or court decisions will have long-lasting effects on family members so it is important to be as effective and thorough a possible as the case proceeds. A Certified Forensic Accountant offers a unique skill set to the legal professional and can help provide the experience necessary to help secure critical financial evidence. When choosing a family or divorce attorney to help resolve a complicated dispute, savvy clients make sure that they can keep the option open to bring in other experts, like a forensic accountant or CPA, in order to secure the best outcome possible despite stressful circumstances. There are countless justifications for hiring legal representation of this type but for clients that may not know the upside to hiring a forensic accountant or even know how to hire the right CPA, it's always a good practice to interview or even research these industry professionals to determine the best hire or fit for a client’s needs.

Courts Bulletin: Child Relocation

Kansas City Divorce Attorney Mark Wortman — Mon, 09 Apr 2012 11:01:02 -0600

Under § 452.377, RSMo, relocation of child’s residence requires strict compliance to statutorily required notice before strict compliance with time to file objection to relocation is required. Abraham v. Abraham, No. 31099 (Mo. App. S.D., October 26, 2011), Rahmeyer, J.

A dissolution of marriage was granted to the parties in April 2006. In September 2010, the Mother sent a certified letter of her intention to relocate their child’s residence to Orlando, Florida. The Father did not file an objection to the move until 37 days after receipt of the letter. The Mother asserted that the tardy objection was ineffective to preclude her absolute right to the relocation in accordance with an opinion issued in Baxley v. Jarred, 91 S.W. 3d 192, 199 (Mo. App. W.D. 2002). In Baxley, it was held that an objection to relocation that was not timely filed gave the relocating party an absolute right to relocate and that the only issue left for the court was the appropriate adjustment in parenting time between the parties. The trial court rejected that theory and denied the Mother her request to relocate. She appealed.

Held: Affirmed.“Mother claims that ‘strict compliance’ with the elements of a relocations letter is not required….” The Father asserted that the Mother’s failure to provide known details of the address to which relocation is intended renders her notice effective.

“We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.”

“[T]he notice requirement of § 452.377 must be strictly complied with.” Here, the Mother did not give notice of the actual specific address and mailing address of her new intended residence although she knew it. If one party must be held to compliance with the 30 day rule to object, the relocating party must be held to strict compliance with the notice provisions that trigger that obligation to act.

Concurring Opinion: “Waiver is the intentional relinquishment of a known right.’” In Baxley, neither party complied with the requirements of the statute as to notice and time to object. Yet, they weren’t treated the same in that the failures of the notice to relocate were forgiven while the failure to file a timely objection was not. However, in the instant case they were each given their day in court regarding the relocation. Thus, neither party was prejudiced by such non-compliance.

Rather than require strict compliance with the statute in all aspects here, the opinion asserts that the proper analysis is whether a party was prejudiced by such non-compliance. Thus, in the instant case, neither party complied with the statutory requirements and a full hearing of the relocation issue ensued. That was the proper result, not for failure of strict compliance, but rather because the trial court gave each party full and fair hearing on the relocation issues.

Concurring Opinion #2: There should be no “absolute right” to a default on the issue of relocation when an objection is not timely filed. There should be consideration given to the facts of the case because the welfare of the child is the paramount concern.

Source for Post: Missouri Bar Courts Bulletin.

The court has no statutory authority to dictate resolution in an initial custody proceeding under § 452.377. The “relocation” statute does not apply to initial proceedings. A.E.B. by Next Friend, L.D. v. T.B., No. 91716 (Mo. banc, October 25, 2011), Russell, J.

This was an action for determination of paternity and custody. Prior to its filing, the Mother had moved to the State of Ohio. The Father sought an order requiring the child to be returned to the State of Missouri. The trial court decided that the Mother would have sole physical custody of the child, but that she would have to move within a three county area in the State of Missouri. Mother appealed.

Held: Reversed. Section 452.377, RSMo, governs relocation issues. Clearly, its provisions pertain to occurrences after an initial custody determination. Section 452.375, RSMo, governs the issue of child custody determinations. One of the factors in assessing child custody is the intention of a party to relocate the child. “Because statutory limitations on relocation provided in § 452.377 do not apply before a § 452.375 initial custody determination is established, § 452.377 in no way precludes a party from relocating prior to a § 452.375 determination.” Therefore, the trial court had no statutory authority to require the Mother to move the child back to the State of Missouri.

Dissent: During the trial, the Mother offered two parenting plans, one of which presumed Mother and the child would come back to Missouri to live. The dissent suggests that this was sufficient to give the trial court authority to order custody in Missouri because she invited the error.

Awarding Tax Dependency Credit To Non Custodial Parent Not Prejudicial When Custodial Parent Has No Income

Kansas City Divorce Attorney Mark Wortman — Sat, 07 Apr 2012 13:18:28 -0600

New Case Law: CB v. DB Missouri Court of Appeals, Southern District - SD31614

Notwithstanding the fact that the Missouri case law generally states that tax benefits must go to the custodial spouse unless the trial court expressly finds it unjust or inappropriate to do so, our western district has held that noncompliance with Form 14 directions is not reversible error unless the appellant is prejudiced thereby. Sarwar v. Sarwar, 117 S.W.3d at 171. Appellate review is for prejudice, not mere error Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. 2009).

“Here, Wife does not argue or suggest any prejudice, nor could [the Court] glean any from the scant record that she has provided. In fact, the indication is otherwise. In her post-trial motion, Wife represented to the trial court that her only income during the two-year history of litigation was unemployment benefits, which had expired; that she had been unable to obtain employment; and that her gross income was “zero.” By contrast, Husband was earning an income, and apparently could benefit from the tax exemption, while Wife seemingly could not. A judgment will not be reversed unless an appellant is prejudiced by an error that materially affected the merits of an action. Rule 84.13(b).”

Wife did not meet her obligation to show that she was entitled to appellate relief and the judgment was affirmed.

Case Law Update: Rude, Irritating, or Inconvenient Conduct not Sufficient to Support Order of Protection

Kansas City Divorce Attorney Mark Wortman — Sat, 31 Mar 2012 09:07:37 -0600

Recent Case: SD v. MW Missouri Court of Appeals, Southern District - SD31296

Under section 455.010(13), "stalking" occurs when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in

that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Alarm" means to cause fear of danger of physical harm;

(b) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted

contact; and

"Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection." Towell v. Steger, 154 S.W.3d 471, 476 (Mo. App. S.D. 2005). Because harm can result from an abuse of the Adult Abuse Act, "trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection." Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo. App. E.D. 2003).

Petitioner did not claim Appellant was following her. Petitioner did not offer any evidence showing that Appellant had ever engaged in any violent acts or that Petitioner had any other reason to believe Appellant was a violent person. Petitioner presented no evidence that Appellant said anything, made any gestures, or otherwise communicated any specific thing to Petitioner that would cause a reasonable person to believe he or she was in danger of physical harm from Appellant. As a result, no substantial evidence supported the existence of this necessary element of stalking. Appellant's point is granted.

The judgment was reversed, and the cause was remanded to the trial court which is directed to vacate the full order.

Case Law Update: No Child Abandonment Without Knowledge

Kansas City Divorce Attorney Mark Wortman — Sun, 04 Mar 2012 15:13:40 -0600

Recent Ruling: Termination of parental rights requires proof of statutory grounds by clear, convincing and cogent evidence, and proof of child’s best interest by a preponderance of the evidence. In an action to terminate parental rights, the statutory ground of abandonment means six pre-petition months of “a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.” Neglect means continuous failure to provide. The juvenile officer alleged and proved that father had no contact with child for six months before amended petition. But evidence showed that father learned of child’s existence only two weeks before filing of amended petition and, on doing so, attempted to develop relationship. Such evidence is not substantial evidence of abandonment or neglect.

Missouri Court of Appeals, Southern District - SD31470

The opinion can be read here.

Source for Post: The Missouri Bar

Missouri Supreme Court Increases Maximum Child Support Overnight Credit

Kansas City Divorce Attorney Mark Wortman — Tue, 24 Jan 2012 14:52:55 -0600

The Missouri Supreme Court has recently issued an order that, effective, January 1, 2012, increases the maximum allowable Form 14 child support overnight credit to 50%. Specifically, on the Form 14, which is Missouri's child support calculation formula, the non-custodial (paying) parent is given a credit for the number of overnights that parent spends with the child. The default amounts for periods of overnights totaling 109 or fewer annually remain unchanged, but for total overnights that exceed 109 per year, the allowable credit has been increased from the old maximum of 34% to a new maximum of 50%, but it is still at the discretion of the Court. The new line 11 overnight credit amounts are as follows:

Annual overnights Credit

Less than 36 0%

36-72 6%

73-91 9%

92-109 10%

110+ 10-50% at the discretion of the Court

Note however that in order for the paying parent to be eligible for the overnight credit, the parent recieving the child support must meet minimuim income requirements.

December Courts Bulletin: Recent updates in Missouri Case Law

Kansas City Divorce Attorney Mark Wortman — Fri, 30 Dec 2011 14:49:40 -0600

Value of a closely-held corporation must be as fair market value and application of a calculation of value via a buy-sell agreement not related to fair market value is error. Wood v. Wood, No. 96218 (Mo. App. W.D., November 29, 2011), Romines, J.

This was an appeal from a dissolution of marriage action. The Husband appealed the decision on several grounds, but it comes down to his challenge of the valuation of his 30% interest in a closely-held corporation. Both parties had an expert testify as to the value. Wife’s expert testified as to value based upon a buy-sell agreement formula that existed between the shareholders. Husband’s expert testified as to his opinion of the fair market value thereof. The trial court concluded that the Wife’s expert had properly assessed value $1.062 million versus $325,000 by Husband’s expert.

Held: Reversed. “Wife’s calculation failed to comply with [the rule that fair market value at time of trial is required because Wife’s expert] does not seek a fair market value or fair market value of [Husband’s interest in corporation.]”

“Furthermore, the formula does not even employ a current appraisal of [Husband’s interest in corporation.] As part of the calculation of present share value, and instead uses the historical value of company in 2007 at $3,000,000 as the starting point.”

“[W]here an expert’s testimony does not attempt to determine fair market value, the trial court simply cannot find it more persuasive and credible than another and rely on such testimony in valuing those shares.”

Dissent: The dissent is based upon the technical failure of the Husband’s point relied on to preserve the issue for review on the basis found to be dispositive by the majority opinion. Consequently, the dissent would deem the claimed error not reviewable.

Source For Post: Missouri Bar December Edition of Courts Bulletin - Mobar.org

Courts Bulletin: Recent developments in Missouri Family Law

Kansas City Divorce Attorney Mark Wortman — Mon, 28 Nov 2011 14:57:00 -0600

Administrative child support orders are available for the support of all eligible children, including children of citizens of other countries. Lajeunesse v. State of Missouri Department of Social Services, No. 73477 (Mo. App. W.D., October 4, 2011), Martin, J.

A child was born to a Russian citizen in West Virginia. Father was a Missouri resident and a support order was sought for the child through the Department of Social Services (DSS), which established paternity and Father’s financial responsibility for support. Mother and child now live in Russia. The Father filed a petition for judicial review and the trial court found that Department of Social Services was without jurisdiction to enter an administrative order requiring Father to pay child support. Upon Father’s motion the trial court overturned the administrative order. DSS appealed.

Held: Reversed. “. . . Father argues that unless a recipient is a resident of the State of Missouri or another state, the recipient is not eligible for child support services.”

The applicable sections of the statutes, § 454.425 and 454.400, do not provide for child support relief for only United States residents. “By its plain terms, § 454.400.2(14) is broad, requiring child support services to be provided to any other child for whom services are applied. This is in keeping with § 454.425, which also broadly permits services to be provided to all children, custodial parents, and persons entitled to receive support. A harmonious reading of § 454.425 and 454.400.2(14) indicates that the legislature intended to authorize and require DSS to provide services to any child for whom services are applied. This broad and unrestricted directive is not, by its terms or by implication, limited to residents (or citizens) of the United States.”

An agreement that maintenance will terminate “only” upon death excludes application of § 452.370 for termination of maintenance upon remarriage. Simpson v. Simpson, No. 91498 (Mo. banc, October 4, 2011), Fischer, J.

The parties were divorced in 2005. They entered into an agreement by which the Husband would pay the Wife $12,000 per month in non-modifiable maintenance for 15 years. Said maintenance was to “terminate prior to the expiration of said 15 year period only in the event of the death of either party.” In 2009, the Wife remarried. The Husband filed a motion to terminate maintenance on the basis of her remarriage. The Wife responded by filing a motion to dismiss his claim, which was granted. The Husband appealed, and the matter ended up in the Missouri Supreme Court to address the applicability of § 452.370.3, RSMo, that provides that maintenance terminates immediately upon Wife’s remarriage unless otherwise agreed in writing or expressly provided in the judgment.

Held: Affirmed. “The problem with the Husband’s argument is that he and Wife agreed in writing in the separation agreement that maintenance would terminate ‘only in the event of the death of either party.”

“[T]he use of the word ‘only’ in the separation agreement is sufficient to overcome the statutory presumption of § 452.370…”

Generally, retained earnings of closely-held corporation are corporate assets and not marital property and distributions to liquidate corporation in exchange for non-marital stock are not marital property. Short v. Short, No. 95663 (Mo. App. E.D., October 25, 2011), Sullivan, J.

This was an action for dissolution of marriage in which the parties had a prenuptial agreement. The meaning of the agreements terms were in dispute, especially regarding whether it provided that earnings derived from separate property had been excluded from marital property. Both parties appealed. As a side note, it is interesting that the parties met four days before the wedding to discuss the terms of the prenuptial agreement in detail. A draft of the agreement was first presented to the unrepresented Husband the day before the wedding. The trial court’s determination that the agreement should be upheld as valid was affirmed despite the short amount of time noted herein.

The trial court found that the agreement did not expressly exclude as non-marital property the income earned from that non-marital property during the marriage. During the marriage the Wife received several million dollars in liquidating distributions in exchange for cancellation of her non-marital stock interest in a closely-held corporation. The trial court found those distributions to be marital property.

Held: Reversed in part as to the character of the corporate liquidation payments in exchange for non-marital stock. “Evidence presented at trial showed that approximately 97% of (corporation’s) assets at the time of (corporation’s) liquidation were comprised of …̔ retained earnings.’ Generally, retained earnings of a corporation do not constitute marital property. Hoffmann v. Hoffmann, 676 S.W.2d 817, 827(Mo. banc 1984); Craig-Garner v. Garner, 77 S.W.3d 34, 38 (Mo. App. E.D. 2002). Retained earnings and profits of a corporation are a corporate asset and remain the corporation’s property until severed from other corporate assets and distributed as dividend. Hoffmann v. Hoffmann, at 827; Craig-Garner v. Garner, at 38.”

Moreover, “[t]he money Wife received as liquidating distributions from the dissolution of (corporation) was not income earned by her separate stock; rather, it was liquidated capital distributions received in exchange for, and in cancellation, of her stock in (corporation), which was her separate property.”

Source for Post: November issue of Courts Bulletin. A publication of the Missouri Bar

Case Law Update: No Prejudice from Deficient Relocation Notice

Kansas City Divorce Attorney Mark Wortman — Mon, 14 Nov 2011 12:27:52 -0600

Missouri statute requires that a parent relocating with a child give notice to the other parent. Receipt of notice starts the 30 day time limit to file a motion to bar the relocation. A deficient notice does not, alone, provide grounds to modify custody and visitation. In this case, the notice was deficient, but the motion was timely, so no prejudice resulted. The Record includes evidence to support findings on child’s best interest so Court of Appeals defers to circuit court.

Henry v. Henry Missouri Court of Appeals, Southern District - SD30897

Source: Missouri Bar

Spousal Maintenance (Alimony) in Missouri: When Granted, Duration, Termination, Modifcation.

Kansas City Divorce Attorney Mark Wortman — Sat, 15 Oct 2011 09:55:08 -0600

Spousal maintenance, formerly known as alimony, can be awarded to either spouse in Missouri divorces. To support the award, the Court must find that the spouse seeking maintenance (1) lacks sufficient property, including marital properly awarded, to meet their reasonable needs, and (2) the spouse is unable to support themselves 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. The spouse seeking maintenance must be able to demonstrate a need for it, and maintenance is not awarded as a form of compensation for breach of the "marital contract".

There is no set formula for the calculation of maintenance, as in some other states, and it is determined on a case by case basis. Duration of the marriage is an important factor also in cases where one spouse forgoes the development of a career while the other is free to advance a career, and maintenance is awarded more often in marriages longer than 10 years, but can be awarded in a marriage of any duration. Ability to pay and earning capacity are also important factors, and the party receiving maintenance has an affirmative duty to seek employment.

Unless the court can determine an exact date when the receiving spouse will become self supporting, court ordered maintenance will have no termination date, and it must later be terminated by way of motion by the paying spouse. However, the parties can agree to maintenance for a set term, but that generally will be non-modifiable.

Maintenance, whether open-ended or non-modifiable for a set term, will still terminate upon remarriage of the receiving party or the death of either party, unless the decree specifically states that the award will survive either death or remarriage. Maintenance that is open-ended can be modified or terminated upon showing of a substantial and continuing changed circumstances, including the financial resources of both parties, contributions of a new spouse or cohabitant, and the earning capacity of an unemployed party.

Recent case: Forum under Uniform Child Custody Jurisdiction Act and in personam jurisdiction

Kansas City Divorce Attorney Mark Wortman — Mon, 29 Aug 2011 10:07:57 -0600

www.courts.mo.gov/file.jspMissouri Constitution provides subject matter jurisdiction of circuit courts. The Uniform Child Custody Jurisdiction Act provides comity among states and determines which state is the most appropriate forum for seeking remedy. The Circuit court should make findings under those provisions. Rule and statute describe minimum contacts necessary to make a person subject to circuit court jurisdiction. Under those provisions, “liv[ing] in lawful marriage within” Missouri is more than passing through while traveling and appearances to enforce foreign orders. “It is not necessary to stand on your jurisdictional challenges and refuse to participate in the proceedings to preserve your objections to jurisdiction.” Circuit court lacked personal jurisdiction to render appellant liable for child support and marital debts.

The Court held as follows:

(1)The circuit court erred in asserting personal jurisdiction over wife because she and Husband never lived in lawful marriage in the State of Missouri. The circuit court lacked jurisdiction to subject her to an in personam judgment for child support and division of marital property (not within the State). The circuit court, therefore, erred in ordering Wife to pay child support in the amount of $278.00 per month and to pay certain marital debts. The circuit court did, however, have jurisdiction over the status of the marriage and could dissolve it.

(2) The Circuit Court of Clay County had the authority to make the child custody determination in this case under the UCCJA. The record established that the only other state that would have jurisdiction over this matter refused to assert jurisdiction and declined to exercise jurisdiction because Missouri was the more appropriate forum.

(3) The factual record established that the circuit court had the authority to proceed under the UCCJA and to determine the child custody issue. Case remanded to Circuit Court for further proceedings

The entire opinion can be read here

Grounds for Annulment in Missouri

Kansas City Divorce Attorney Mark Wortman — Tue, 23 Aug 2011 16:47:07 -0600

Annulment in Missouri is applicable to two distinct categories of challenged marriages: Those that are void and those that are voidable. The distinction is that a void marriage is always a nullity, whereas a voidable marriage is valid until a judgment is entered declaring it void. The Court's of Missouri have declared a strong public policy in favor of marriage, and a presumption in favor of marriage which is one of the strongest presumptions under the law. This means that in order to get an annulment, the moving party must show "strong, distinct, satisfactory, and conclusive" evidence to support the claim. In the overwhelming majority of cases, dissolution is the appropriate method to dissolve the marriage rather than annulment.

Grounds for Annulment include:

Common law marriage
a marriage where one party is under 15 years old (without judicial consent)
Marriage between related persons (to the degree prohibited by statute)
Marriage where one party lacked mental capacity, including feeble mindedness, insanity, intoxication, and unconsciousness
A marriage where one party consented due to duress
A marriage between two persons of the same sex
A bigamous marriage
Fraud, provided that it is essential to the marital relationship, such as sexual impotency or failure to disclose a sexually transmitted disease. A misrepresentation in and of itself is not sufficient.
Lack of assent

Characterization of Property in Divorce - Increases in Value of Non-Marital Assets only Marital to Extent of Marital Contributions

Kansas City Divorce Attorney Mark Wortman — Sat, 16 Jul 2011 10:02:10 -0600

Under Missouri Law, certain property is considered to be non-marital, and not part of the division of the marital estate in a divorce proceeding. Non-marital property includes property:

Acquired before the marriage;
Acquired by gift or inheritance;
Acquired in exchange for property acquired by 1 and 2 above;
Acquired after a decree of legal separation;
excluded by written agreement (pre or post nup)

In the case of an increase in value of a non-marital asset described above, the general rule is that the increase in value is also non-marital. The exception to the rule occurs when marital assets, including labor or marital income, contribute to the increase in value. The Court of Appeals has said that marital effort, labor , or services, will entitle a spouse to a proportionate share of the increase in value of the separate property, but only after "comprehensive substantiation", including proof of:

a contribution of substantial services;
a direct correlation between those services and the increase in value;
the amount of the increase in value;
performance of services during the marriage; and
the value of the services, the lack of compensation, or inadequate compensation received.

There must more than just services provided, but a connection between valuable services provided and the increase in value of the asset. Note that income received during the marriage by either spouse is considered a marital asset, so if any income of either spouse is contributed to the asset, it is considered a marital contribution. Likewise, in terms of a non-marital business, employment or labor for no or reduced salary is also considered a marital contribution.

Who gets to claim the kids for federal and state income tax purposes?

Kansas City Divorce Attorney Mark Wortman — Sat, 25 Jun 2011 13:45:48 -0600

There are many ways that the income tax dependency for children in divorce can be handled, although most of them are not supported by the law. If the parties are in agreement, then nearly any method of claiming the children can be used, including alternating years, splitting the deductions between the parents (in the case of multiple children), allowing the non-custodial parent to claim the children provided that child support is current, a combination of these, or any other method that the parties can come up with.

However, under Missouri law, the custodial parent is entitled to claim the children for tax purposes each and every year, period. So unless there is an agreement otherwise, this is what the Court will order. However, regardless of any agreement or Missouri court order, federal income tax law requires a child to reside with a parent at least 50% of the time to be claimed as a dependent. So, if the parties have agreed to something else, such as alternating years, and the non-custodial parent has the children less than 50% of the time, the Internal Revenue Service (or Department of Revenue) can reject the claimed dependency notwithstanding the court order, as Missouri family courts do not have jurisdiction over the IRS or the power to alter federal law. The only remedy would then would be for the parties to return to state court to seek reimbursement for the dollar value of the claimed dependency from the other parent, which the Court may not even entertain.

So the general rule would be that the custodial parent gets to claim the children each year, unless an agreement is reached otherwise. But the word of caution on agreements (particularly for the non-custodial parent), is that both parties have to follow it, or it can be rejected by the taxing authority with the only possible remedy being a return to state court.

Property Not Owned by Spouses Cannot Be Divided in Divorce

Kansas City Divorce Attorney Mark Wortman — Sun, 05 Jun 2011 12:25:31 -0600

The Circuit Court does not have authority to divide assets that are not owned by either spouse in a dissolution of marriage. In a recent Missouri case, the trial court entered a judgment that divided certain trusts where the children were the sole beneficiaries. Since the parties to the case did not have any interest in these assets (as they belonged to the children), the Court could not make any division. The same would also hold true for property titled in the children's (or another persons) name, such as a vehicle or bank account.

To view this recent opinion, click here.

When Attorney Fees Can Be Awarded in Divorce/Family Litigation

Kansas City Divorce Attorney Mark Wortman — Sun, 24 Apr 2011 10:50:05 -0600

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.

Order Requiring Parents to Share in Unlimited Expenses is Unenforcable

Kansas City Divorce Attorney Mark Wortman — Sun, 20 Mar 2011 09:40:01 -0600

A dispute that Missouri family law attorneys see on a regular basis is the sharing of children’s extracurricular activity expenses. Under Missouri law, the Court can require parents to share certain expenses, over and above the monthly child support amount. Included in these expenses are extracurricular activities, educational expenses, uninsured medical costs, and any other extraordinary costs. The Court of Appeals has recently held that, at least to extracurricular activities, and presumably to education and other expenses, the order must have “some limitation as to the scope of activities and resulting expenses or a cap on the total amount of [the parent’s] financial responsibility…to make the order sufficiently certain to be enforceable.”

This means that an order cannot simply require the parents to share a certain percentage in “all extracurricular activities”, particularly when one parent is given the discretion to make all decisions relating to those expenses. The Court noted that “[t]he term “extracurricular activities” is itself extremely broad. Not only is the range of activities that might qualify hard to define, each activity might include a number of different categories of expense (i.e. lessons, camps, equipment, uniforms, or travel). The Court held “that under the facts of this case the motion court should have used limiting language to define the scope of the activities covered by the order or, in the alternative, placed some sort of cap on the extraordinary expenses that Father had to pay for Daughter’s extracurricular activities, especially since it gave Mother sole discretion to decide which activities would occupy Daughter. A $200 monthly limit was imposed.

It is worth noting, though, that an agreement that is made for the sharing of expenses when the nature and extent of the expenses is known at the time is still enforceable regardless of limiting language, since the paying parent would have at least a general idea of what they were on the hook for financially

To see the entire opinion, click here.

Child Neglect Shown in recent Decision

Kansas City Divorce Attorney Mark Wortman — Sat, 05 Feb 2011 13:44:23 -0600

In a recent decision by the Missouri Court of Appeals, clear, cogent and convincing evidence supported a finding of neglect in protecting the child, maintaining the household, and supervising the child. "If a parent is unable to pay for all of a child's financial needs, he or she has a duty to provide as much as he or she reasonably can." A Father’s occasional support for child does not outweigh clear, cogent and convincing evidence of financial neglect through reluctance to work. The Circuit court’s determination of child’s best interests is subject to review for abuse of discretion. The Guardian ad Litem’s opinion is not controlling but merits “respectful consideration."

Missouri Court of Appeals, Southern District - SD30632

Source for Post: Missouri Bar

Less than 1 year before paternity "disestablishment" statute of limitations goes into effect

Kansas City Divorce Attorney Mark Wortman — Sun, 16 Jan 2011 14:46:56 -0600

Missouri’s paternity disestablishment law, enacted in August 2009, allows men who have been declared the father of a child by a court or the Division of Family Services to set aside (overrule) the finding of paternity and terminate child support and child support arrearages. Under this law, alleged fathers wishing to file such an action were given a 2 year “open season”, where the action could be filed regardless of when the original child support order was entered. This period expires on December 31, 2011. On January 1, 2012, the statute of limitations takes effect, and a paternity and child support order can only be set aside if the case is filed within 2 years of the entry of the original order. If not filed within that time, then relief under the statute is precluded.