Missouri Divorce and Family Law Blog

New Missouri Paternity law signed by Governor takes effect August 28, 2009

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Wed, 08 Jul 2009 20:31:19 -0600

On July 7, 2009, Governor Jay Nixon signed into law senate bill number 141, which modifies Missouri’s paternity laws, effective August 28, 2009. The new law revises sections 210.826, and 210.828 and adds a new section 210.854, which will now allow men who have been declared the father of a child by a court to petition to set aside the judgment and obtain relief from child support obligations when DNA testing shows that they are not the biological father, if filed within certain time limits.

The provisions of the new paternity law are summarized as follows:

In an action to determine paternity of a child, a notification form shall be attached to the delivery of the petition through service of process. The notification form shall prominently state in bold face type as follows: "Important Notice. If you do not respond to this action, a judgment of paternity may be entered against you and you may be ordered to pay child support, medical support or reimburse someone for support previously paid for the child. You have the right to contest that you are the father of the named child and you have the right to request genetic testing to prove whether or not you are the father."

The act also provides that a person may file a petition to challenge entry of a judgment of paternity and support upon filing an affidavit stating that evidence exists which was not considered before entry of judgment. Such petition shall also include either an allegation that genetic testing was conducted within the past 90 days using DNA methodology, was performed by an expert, and that the test results indicate the petitioner is not the child's father or a request to the court for an order of genetic paternity testing using DNA methodology. The petition to set aside the judgment may be filed at any time prior to December 31, 2011. After that, the petition shall be filed within two years of the entry of the original judgment of paternity and/or support, whichever occurs later.

The court, after a hearing where all interested parties have been given an opportunity to present evidence and be heard and upon a finding of probable cause to believe the testing may result in a determination of non-paternity, shall order the relevant parties to submit to genetic paternity testing. The petitioner shall pay for the costs of testing.

The court shall grant relief, unless the court makes written findings of fact and conclusions of law that it is not in the best interest of the parties to do so, and enter judgment setting aside the previous judgment of paternity and child support, including a previous acknowledgment of paternity, extinguish any existing child support arrearage, and order the Department of Health and Senior Services to modify the child's birth certificate accordingly upon a finding that the genetic test was properly conducted, accurate, and excludes the petitioner as the child's father.

In addition, any petitioner may apply for expungement of criminal nonsupport records to the court in which the petitioner pled guilty or was sentenced. Such expungement shall only apply to records for criminal nonsupport of a child or children for which the petitioner was found not to be the biological father.

The provisions of this act shall not apply to grant relief to the parent of any adopted child nor shall such provisions be construed to create a cause of action to recover child support or state debt previously paid under court order. The petitioner shall not have a right for reimbursement of any monies paid previously under said order.

Beginning in 2010, the family support division shall track and report to the general assembly the number of cases known to the division in which a court, within the calendar year, set aside a previous judgment of paternity and support under the provisions of this act.

The entire text of the bill can be read here.

Missouri Legislature passes Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and eliminates requirement that social security numbers be included in family law pleadings and judgments

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Tue, 02 Jun 2009 13:16:43 -0600

Newly passed legislation will finally enact the Uniform Child Custody Jurisdiction and Enforcement Act as of August 28, 2009. Missouri was one of only three states that had not yet enacted the UCCJEA. This act will replace the current Uniform Child Custody Jurisdiction Act (UCCJA).

The act limits child custody jurisdiction to one state, avoids competing orders, and provides enforcement provisions for child custody orders. The act further establishes orders of priority and guidance on issues regarding establishing initial custody determinations, continuing jurisdiction, modification of custody determination, and emergency orders.

Similar to the UCCJA, The UCCJEA establishes an order of priority for determining which state has proper jurisdiction to make an initial determination of child custody. The order of priority includes a determination of (1) the child's home state, (2) the state in which the child and at least one parent have a significant connection and substantial evidence concerning the custody determination is available or (3) the state having an appropriate connection with the child.

The child's home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or since birth, for children younger than six months.

Once a state court has made a custody determination, the state keeps exclusive and continuing jurisdiction over all matters concerning the child until circumstances have changed regarding home state status, or there is no longer a significant connection to the state or evidence concerning the child's custody is no longer available in that state. The circumstances are specified in the act.

Also, once a custody determination has been made, a court of another state does not have authority to modify the determination unless the state with jurisdiction determines that it does not have jurisdiction or any state court determines that the child, parents, or any acting parents do not reside in the state which currently has jurisdiction.

A state which does not otherwise have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. After issuing the order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction and argue the issues to the court with jurisdiction.

If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having home state jurisdiction over the child. If no determination is made and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody.

Missouri has now also done away with the requirement that social security numbers be included in family law pleadings and judgments. Under the new law, parties will still file social security numbers with an information sheet, but that will be maintained by the court confidentially, and only the last 4 numbers will be included in the judgments or pleadings in the public record.

Be Careful When Incorporating Maintenance Into Marital Settlement Agreement

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sun, 26 Apr 2009 11:51:34 -0600

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

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) wins approval in Missouri House

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Fri, 03 Apr 2009 15:12:12 -0600

The Uniform Child Custody Jurisdiction and Enforcement act (UCCJEA) may finally win approval in this year’s legislative session. The measure is part of the Omnibus Judicial Bill (HB 187) that was perfected by a voice vote in the House this week. The House must approve the bill by a recorded vote before it can be sent on to the Senate. Missouri is among only three states (Vermont and New Hampshire) that have yet to adopt the UCCJEA.

The UCCJEA repeals the current Uniform Child Custody Jurisdiction Act (UCCJA). The act specifies the procedures, priorities, and factors to be considered in initial custody jurisdiction determinations, continuing jurisdiction determinations, modification of custody determinations, and emergency orders. Also, family access orders may be filed relating to establishment or modification of custody or visitation including, but not limited to, dissolution, modification, third-party visitation, or paternity.

Division of Personal Injury Settlements in Missouri Divorce

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sat, 28 Feb 2009 11:20:27 -0600

In a divorce proceeding, a personal injury settlement can be a major asset that will have to be divided between the parties. Missouri uses the "analytical" approach to determine whether the settlement proceeds are marital, non-marital, or both.

In a marriage dissolution proceeding, the trial court uses a two-step process for dividing property. The trial court must first set aside non-marital property before it divides marital property “in such proportions as [it] deems just.” Property acquired during the marriage is presumed to be marital, but the presumption may be overcome. A settlement for a personal injury claim occurring during the marriage may be both marital and non-marital.

To determine whether funds from a personal injury settlement are marital or non-marital, Missouri uses the “analytical” approach. Under this approach, also known as “replacement analysis,” the settlement award is classified by what it is meant to replace. To determine the intent of a settlement, a court may look to what the parties would have received if the claims had been adjudicated. If the award is to compensate for separate, non-marital losses, it is non-marital property; to the extent it compensates for marital losses, it is marital property.

Under the analytical approach, compensation for loss of future, post-dissolution wages is non-marital property, while compensation for wages lost during the marriage is marital. Similarly, compensation for post-dissolution medical expenses is generally considered non-marital, while compensation for medical expenses during the marriage is generally marital.. Compensation for non-economic damages, such as “pain, suffering, disfigurement, disability, and loss of ability to lead a normal life” is generally considered the separate property of the injured spouse.

The Court of Appeals recently held that the trial court did not err in determining that post-dissolution payments due under the settlement agreement were properly characterized as non-marital property. To see the opinion, click here.

Tenancy by the Entireties exemption for Married Couples Holds - Case Law Update

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sun, 08 Feb 2009 11:54:05 -0600

The Missouri Court of Appeals for the Southern District of Missouri has just recently upheld the Missouri exemption (protection from creditors) for Tenancy by the Entirety for jointly owned property by married couples.

Tenancy by the Entireties is a special form of property ownership that Missouri, and some other states, reserved for married couples only. Tenancy by the Entireties means that a husband and wife own property as one person, and each of them owns a 100% interest in the property. This is different than co-tenancy, where each owner only owns their respective interest in the property (such as when two unmarried people own property – they each own only their half).

It is presumed that jointly owned property by married couples is tenancy by the entirety, and the presumption can only be rebutted by evidence that there was consent, agreement, or acquiescence that the property was not owned in this way. Tenancy by the Entirety property is fully exempt from creditors of one spouse, and is exempt in bankruptcy provided that only one spouse is filing. If both spouses file bankruptcy, the exemption does not apply, and if a creditor trying to collect a judgment is a creditor of both spouses, the exemption does not apply.

In the recent ruling, a creditor had obtained a judgment in another state, registered it in Missouri, and attempted to collect the debt by seizing assets (known as execution) that were jointly owned by a married couple. The Court held that, even though there was some evidence that the property was only owned by one spouse, it was not enough to rebut the presumption of tenancy by the entirety, and the property was exempt from collection.

To read the full opinion click here.

New 2009 Missouri Child Support Guidelines and Basic Support Schedule Now In Effect

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Mon, 05 Jan 2009 18:54:18 -0600

Missouri's new 2009 child support guidelines and basic support schedule are now in effect, as of the beginning of the year. The changes and updates are summarized as follows

Credit to paying parent for "other children in their custody "means "other children primarily residing with that parent".
There is an increase in the amount of income the custodial parent must make in order for the non-custodial parent to claim a credit for nights of overnight parenting time
Definition of "split custody" means when one or more, but not all, of the children primarily reside with each of the parents
One factor for consideration to deviate from the presumed amount of support based on income increases from $20,000 to $30,000
Assumption that non-duplicated fixed expenditures percentage of the basic child support amount does not vary even with split custody
Maximum credit for overnights on line 11 is 34%
2007 Child Care Tax Credit Table Incorporated
Increase in Basic Support Amount schedule
New Form 14

Links to New 2009 Missouri Child Support Laws

Basic Support Amount Schedule

2009 Child Support Guidelines

Separation Anxiety: 5 Ways to Help Your Children Cope With Divorce

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Tue, 16 Dec 2008 10:44:50 -0600

The following post appeared earlier this month on the South Carolina Family Law Blog. I thought these were some great thoughts for divorcing parents to keep in mind:

While divorce proceedings may pose a great burden upon parents, they often have a disproportionate affect upon children, who may not fully understand the process. Parental separation can fundamentally shift a child's nascent world view, requiring careful steps to ensure that children are able to soundly cope with the divorce. Although the divorce itself might emerge from personal issues unrelated to children, it is crucial that parents remain focused upon helping children transition during the process:

Encourage open communication from your children. Although the complete scope of the process might immediately escape children, it's important that you take time to allow a child to express his or her feelings about the event. This is a way in which you can both come to understand outside viewpoints, as well as providing you with an opportunity to reach and explain the situation in a manner that resonates with the child. If you have multiple children, it's important to speak to them both individually and collectively, as each child is likely to have a different, personal response to the events unfolding, depending on their age and personality.
Ensure that all children have a stable social safety net throughout the process. Since the fundamental role of the family is to provide a safe setting in which children can learn and grow, it's important that one continue to provide this level of support even during parental separation. Ensure that children are in a safe environment and remain outside any legal or argumentative environments that might surround the divorce; if you understand with your spouse around children, remain friendly and amicable, independent of your internal feelings. Always reach out to your broader, extended social network so that children feel comfortable – allow them to spend time with friends, relatives and counselors so that they have feelings of stability in spite of the changes around them.
Maintain continuity in your own personal life so that you can remain a strong parent. In order to help children cope with a divorce, it's important that one ensure stability in all facets of life, from work to friendships. By maintaining an equilibrium in your life, you can ensure that you'll bring a balanced approach to keeping your life in order so that you can remain strong for your children. It may be beneficial to spend time with a counselor so that you can work through any anxiety or feelings that you have, in order to ensure a proper outlet for those emotions; while it's okay to express yourself around children, one should also ensure that emotions are kept in check and expressed in a structured fashion so children feel comfortable. In order to help children remain strong during a divorce, each parent has to be strong independently.
Keep legal challenges outside of the child's daily life. Although court proceedings are a core part of any divorce, children should not have to grasp the details of the legal fight. Instead, keep the legal details separate from your relationship with your children. When working out a legal settlement, always keep the best interests of your children in mind, as those considerations should trump any financial or situational disputes that might arise in the proceedings. Even during the direct divorce proceedings, ensure that you have enough time to devote to nurturing and taking care of your children.
Allow children an expressive outlet to ensure their lives are well-balanced. While no divorce is fun for children, it's important to ensure that children continue to have elements of joy in their life, from celebrating parties with friends to enjoying time off from school on the weekends. Take time away from the bustle of daily life to take your children to a park or to a nice dinner out with relatives so that they can continue to find enjoyment in life, in spite of the larger situation.

Thanks to the South Carolina Family Law Blog for this post.

Missouri Child Support Guidelines and Case Law - Part 2 - Imputed Income

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Wed, 19 Nov 2008 20:55:15 -0600

What happens when a parent tries to avoid a child support obligation because they are not working or only have a small amount of income? Well, in the eyes of the Court, that parent will be treated as if they did have income sufficient to pay the child support. The most common situation is when it is apparent that a parent is not working specifically to avoid child support, but there are many factors that the Court can consider when making this decision. This can happen in a divorce, paternity, or child support case, and it is called “imputed” income. The court can consider any relevant factor, and recent cases say the following:

For the non-custodial parent

Any imputed income must be within a parent’s capacity to earn, and if a parent earned a different income prior to trial the court should consider that income in calculating retroactive child support.
Even if a parent did not try to evade child support, the court can impute higher income than earned if the parent has the earning capacity.
Imputed income must be supported by evidence, not speculation, and the court record must reflect how the income was figured.
The income imputed to an underemployed or unemployed parent must be according to what they could earn if using their best efforts to find employment
The court can impute income if a parent has voluntarily and deliberately become unemployed, and a court should not do so if there is no showing of an attempt to evade responsibility
If a parent is terminated and does not use best efforts to find new employment, refuses offers, or fails to show unemployment is only temporary, income may be imputed

For the custodial parent

Factors include age, maturity of the child, availability of child care givers, relationship between the expense of child care and the net income the parent would receive, the reasons the parent stays home with the child.
A court may not treat imputation of income on the Form 14 different than its maintenance calculation

Next installment: Adjustments to income for child support, maintenance, health insurance, and medical costs

Domestic Support Obligations and Bankruptcy

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Wed, 29 Oct 2008 15:55:33 -0600

With so many people facing bankruptcy in the current climate, it may be good news to know (depending on which side you are on, of course) that the bankruptcy does not allow a person owing a domestic support obligation to use bankruptcy as a way to avoid payment of the debt. In fact, virtually any obligation that is domestic in nature cannot be discharged in bankruptcy. Here are a few facts:

A domestic support obligation is not dischargeable in a Chapter 7 or Chapter 13 consumer bankruptcy proceeding.
“Domestic Support Obligation” is a debt that is owed to or recoverable by a spouse, ex-spouse, or child of the debtor or their guardian or representative, or a governmental unit (such as the Children’s division or the Court). This includes alimony, maintenance, child support, state assistance, even if the debt is not titled exactly in that manner. Also included is a debt arising out of a separation agreement, divorce decree, or property settlement agreement.
Also non-dischargeable in a Chapter 7 is any debt to a spouse, former spouse, or child not described above that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record. Any debt that falling under this section may be dischargeable in a Chapter 13 debt adjustment, however.
Domestic Support Obligations receive the number 1 priority for repayment in a Chapter 13 plan or when funds are available in a Chapter 7 bankruptcy estate.
To summarize, if it is domestic in nature, it is going to have to be paid. This includes not only child support or maintenance, but also property and debt divisions, such as: marital estate equalization payments, payments in settlement, qualified domestic relations orders, contempt payments, divisions of debts, vehicle debts, mortgages, credit cards, lines of credit, personal loans, medical insurance, costs for non-covered medical care, retirement plan divisions, military retirement divisions, attorney fee awards, and the kitchen sink.
No special language is necessary in the divorce settlement or decree to make these provisions apply, although it may be a good idea just to drive the point home.

Missouri Child Support Guidelines and Case Law: Part 1 - Gross Income, Overtime, and Bonuses

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Thu, 23 Oct 2008 12:09:21 -0600

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

New Missouri Child Support Guidelines Take Effect January 2009

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Fri, 10 Oct 2008 15:23:21 -0600

On October 8, 2009 the Supreme Court of Missouri issued an order repealing the current child support guidelines and the formula for calculating the child support amount (Civil Procedure Form 14); and ordered new child support guidelines to take effect as of January 1, 2009.

The changes to the child support guidelines include the following:

Credit to paying parent for other children in their custody means other children primarily residing with that parent.
Increase in the amount of income for the custodial parent in order for the non-custodial parent to claim a credit for nights of overnight parenting time
Definition of split custody means when one or more, but not all, of the children primarily reside with each of the parents
One factor for consideration to deviate from the presumed amount of support based on income increases from $20,000 to $30,000
Assumption that non-duplicated fixed expenditures percentage of the basic child support amount does not vary even with split custody
Maximum credit for overnights on line 11 is 34%
2007 Child Care Tax Credit Table Incorporated
Increase in Basic Support Amount schedule
New Form 14

To see a complete copy of the new guidelines, click here. For the new Basic Support Amount Schedule, click here

Divorce and Bankruptcy: When families are facing both, which should come first?

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sun, 28 Sep 2008 11:06:20 -0600

In this time of economic downturn, I am seeing quite a few people filing for divorce who have substantial debt problems, and many are considering, or needing, to file for bankruptcy. This is especially true considering that a large number of those considering divorce are doing so because of financial struggles. In this event, careful planning is required and each individual situation must be examined thoroughly. Below are some points to consider, not intended to advocate bankruptcy by any means, but just for general information on a situation that is very common.

If you can avoid bankruptcy, that is the best option. However, if required, it may be better to file bankruptcy before the divorce, considering:

Missouri and Federal bankruptcy law will allow married couples to file jointly, eliminating the need for two separate bankruptcy filings and two separate attorney fees after the divorce.
The parties can exempt (protect) double the amount of property if they file jointly
Most married couples have joint debt. Even though the divorce court can divide the debt, it cannot alter the contract with the creditor, meaning that if the spouse ordered to pay doesn’t, creditors are going to come after whoever’s name is on the account. Then the only remedy is a contempt of court proceeding, which is time consuming (up to a year) and costly. All the while, the other spouse has to make the payment or suffer the credit consequences. Joint bankruptcy can eliminate the debt all together and avoid the problem of who pays who.
Joint filing before the divorce will eliminate the need to litigate issue of debt in the divorce, which reduces the time and expense of the divorce, and avoids the result described above. Remember, a divorce decree is just a piece of paper, enforcing it is a whole different matter.
Although the bankruptcy law will not allow a divorcee to discharge debts ordered in the divorce, the problem of collection and contempt may cause greater credit problems than the bankruptcy itself.
Joint filing before divorce will allow for a higher income threshold for Chapter 7 qualification (means test avoidance)
Joint filers can utilize Missouri’s double wild card exemption and the head of household exemptions with child exemptions (which can be significant).
It most likely (almost guaranteed) that you can rebuild and re-establish your credit much faster than you could ever have paid off the debt, while at the same time getting the past problems behind you and truly getting a “fresh start”.
Bankruptcy is not the end of the world. It can be an effective solution to a real problem that real people have during these times.

Please note that this list is not complete, and other issues may affect the analysis or timing of the filing. Seek legal advice for your particular situation.

Parent Must Show Change In Circumstances Before Best Interests of Child, Statutory Factors, in Sole Custody Switch

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Mon, 22 Sep 2008 10:20:40 -0600

Findings are not required under 452.375 (custody statute) where the trial court has determined that the party seeking to change a custody order has failed to satisfy the required burden of proof. The required findings under 452.376 do not come into play in a modification proceeding under 452.410 (modification statute) unless the court has first found the requisite change of circumstances. And the public policy findings of section 452.375.4 (third party custody) are likewise not for consideration until the court reaches the question of best interests. The best interests analysis does not come into play before a change of circumstances has been proven. In Russell v. Russell, the Supreme Court reaffirmed that, where the proposed modification seeks to deprive one parent of physical custody, both a change in circumstances and best interests need to be proven.

Such is the case in a recent ruling from the Court of Appeals, where Father sought to change sole custody to himself. Because Father sought a change from sole custody to Mother to sole custody to Father, he was required to prove a substantial change of circumstances. The Russell court limited its express holding to the change from joint custody to sole custody. The rationale, however, that a substantial change was required if one party seeks "to deprive one custodial parent of custody altogether" is equally applicable in this case, according to the Court of Appeals for the Western District.

To read the entire opinion, click here.

Supreme Court Advisory Committee Determines Collaborative Law is Ethical in Missouri

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sun, 24 Aug 2008 12:18:11 -0600

On August 20, 2008 the Advisory Commitee of the Supreme Court of Missouri issued a formal opinion that the practice of Collaborative law, a form of practice where clients agree from the outset to settle their case out of court through negotiation rather than litigation, is ethical and permissible in Missouri.

In the area of family law, both parties and their attorneys formally agree that no documents will be filed with the court until the case is resolved. Rather than taking a course of litigation, where papers are filed and served, discovery is exchanged, and the case is prepared for trial, the parties negotiate in a series of 4 way open discussions. In these discussions, the parties agree not to go to court, or even threaten to, and all information is exchanged freely and openly to assist the attorneys in resolving the case in a cooperative manner. In the rare event that the case is not settled, both parties must retain new trial counsel and the collaborative attorneys must withdraw.

The primary concern of the Advisory Committee was that the client understand the pros and cons of the collaborative process and sign a written consent and contract providing that the attorney has no choice but to withdraw should the case not settle.

Collaborative family law has been around for many years, and is quickly gaining momentum and popularity in Missouri as a superior way to resolve domestic relations cases

Separate Property Not Transmuted to Marital Property: Recent Case

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Tue, 12 Aug 2008 13:14:48 -0600

To show transmutation of separate property to marital property requires evidence of owner’s clear intent to contribute the property. Commingling is not enough. Wife’s contributions to Husband’s separate property did not transmute into marital property, but did support an equalization payment to Wife in proportion to her contribution. Court of Appeals awards Wife slightly less than Circuit Court.

Sheilafaye Goodwin, Respondent, v. Charles Lewis Goodwin, Appellant

Missouri Law pertaining to Marital and Separate Property

Section 452.330 governs a trial court’s distribution and classification of marital and non-marital assets. That section requires that the trial court set aside to each party their non-marital property and divide the marital property equitably. Generally, property owned by one spouse prior to the marriage will remain non-marital property and will be awarded to the owner of that property. Moreover, "property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property." Property acquired before the marriage and which remains titled in the name of the original owner is separate property unless the record shows that the owner intended to change the status of the property from separate to marital.’ By contrast, if the owner intended to change the status of the property from separate to marital, it becomes marital." To transform the nature of the property from separate to marital, "[a] ‘clear intention’ to contribute to the community or to the other spouse must be demonstrated." "[C]ourts must set aside a spouse’s separate property in dissolution cases, and property is deemed separate or marital based on the source of funds that financed the purchase

In this case, Husband purchased the property years before the marriage. While the parties discussed placing both of their names on the real property’s title, Husband declined to do so. Essentially, the trial court held that because Wife made financial contributions to improve the real property, there was an implied agreement to transmute the property. Wife did not testify that Husband indicated that he intended to make a gift of the property to her. Rather, the record reveals that she improved the property largely to raise her own standard of living and not to increase the value of jointly owned property. This is statutorily insufficient to transmute the property. "Property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property." Other than this commingling, there is no evidence that Husband intended to change the nature of the property. "A commingling of nonmarital and marital property will not transmute nonmarital property into marital property unless the owner intended to convert the nonmarital property to marital property." Kinsey-Geujen v. Geujen, 984 S.W.2d 577, 579 (Mo. App. W.D. 1999). The court’s statement, that the "commingling of both of their non-marital assets transmuted this real estate into marital property" is, therefore, a misapplication of the law.

"Incomplete" Grades in College Later Completed With Passing Grades Do Not Terminate Child Support Obligation

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Fri, 18 Jul 2008 14:15:35 -0600

The Missouri Court of Appeals for the Western District of Missouri has recently held that Incompletes, later completed with passing grades, count as college credit hours under statute determining continuation of child support obligation past the age of 18 years.

Generally, a parent's child support obligation terminates when the child reaches the age of eighteen. However, f when a child reaches eighteen, ... the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester ... at an institution of vocational or higher education and achieves grades sufficient to re-enroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one (twenty-two before August 2008), whichever first occurs.

To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.

A child who is employed at least fifteen hours per week during the semester may take as few as nine credit hours per semester and remain eligible for child support so long as all other requirements of this subsection are complied with.

In the recent case of Wilkerson v. Wilkerson, the college student had two "incomplete" grades when the term ended and, therefore, she actually completed only seven hours during that semester. However, she later completed the classes and received full credit for that particular semester, so the Court ruled that she met the statutory requirements completing the classes and the child support obligation continued. Note however that the case of Lombardo v. Lombardo held that that a student who had failed courses could not meet the statutory requirements by merely enrolling and attending classes.

The Court in Wilkerson apparently viewed incomplete grades as temporarily incomplete. However, there was no indication given as to how long a student would be given to complete the class, or when the child support would terminate in the event that the incomplete was not eventually completed.

What California's Same Sex Marriage Law Means to Missourians

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sat, 12 Jul 2008 11:48:29 -0600

As most people know, the California Supreme Court recently ruled that the state's ban on same-sex marriage was unconstitutional. So what does that mean for Missourians?

In California, there were two statutes that said that a marriage is between a man and a woman, which was interpreted to prohibit same sex marriage. The Supreme Court ruled those statutes to be unconstitutional under the California Constitution (not the federal). It is now legal for same sex couples to marry in California.

Missouri is different. In Missouri, rather than a statutory ban on same-sex marriage, we have a constitutional amendment (2004) that defines marriage as being only between a man and a woman, and marriages between same-sex couples are not recognized. There is also a federal statute in play called the Federal Defense of Marriage Act which permits Missouri (and other states) to deny full faith and credit to the marriage laws of another state. This means that Missouri does not have to recognize a same-sex marriage that is perfectly legal in California since it is inconsistent with Missouri law. The federal law's constitutionality has not been fully challenged yet.

Taken together, it is presumed that if a same sex married couple moved to Missouri, or Missourians went to California to get married and returned to Missouri, their marriage would not be recognized.

This also means that same-sex married couples could not obtain a divorce in Missouri because there would be no jurisdiction for the courts. Thus, dissolution of marriage laws that control child custody, visitation, support, maintenance, and property division would presumably not apply.

In the event of a separation the couple would probably have to file an action under the Uniform Parentage Act (commonly known as a paternity action currently) to determine custody, visitation, and child support issues if adopted children are involved.

Same sex couples may want to utilize prenuptial agreements, antenuptial agreements, contracts, and other documentation to control the disposition of assets, including real estate, personal property, bank accounts, securities, business interests, etc.

Source for Post: mobar.org Esq. soundbite.

Missouri Supreme Court Adopts New Requirements and Forms For Parties Not Represented by Counsel in Dissolution of Marriage, Paternity, Legal Separation, and Modification Proceedings

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Wed, 02 Jul 2008 19:35:57 -0600

Effective yesterday, July 1, 2008, Supreme Court Rule 88.09 comes into effect which requires parties not represented by counsel to participate in a litigant awareness program that explains the risks and benefits of self representation, as well as requiring certain court forms to be used and accepted by the Court. The amended rule reads as follows:

88.09 PARTIES NOT REPRESENTED BY COUNSEL

Every party not represented by counsel who participates in a proceeding for dissolution of marriage, legal separation, parentage or the modification of a judgment in any such proceeding shall:

(a) Complete a litigant awareness program that includes an explanation of the risks and responsibilities of self-representation, unless waived by the circuit court. The awareness program shall be prepared by a committee designated by this Court, but each circuit may determine the manner and means by which the training shall be provided and the proof of compliance; and

(b) Unless such use is waived by the trial court, use the pleadings, forms, and proposed judgment prepared by a committee designated by this Court that have been approved by this Court. These forms shall be accepted by the courts of this state, until disapproved or superseded by this Court.

(c) Nothing in this Rule 88.09 prevents a court from determining the legal sufficiency of any pleading nor prevents a court from entering judgment in a form different from the judgment form approved pursuant to Rule 88.09(b).

Why You Need a Divorce Lawyer

Mark@mwortmanlaw.com (Kansas City Divorce Attorney Mark Wortman) — Sat, 07 Jun 2008 12:14:09 -0600

The Pennsylvania Family Law Blog had a great post yesterday about why you need a lawyer for your divorce case. The full article can be read here, and is summarized as follows:

A good divorce lawyer is part lawyer, part psychologist and part clergy. A good divorce lawyer also is indispensable if you are contemplating a divorce (or, for lawyers, if your client is doing so).

An experienced divorce lawyer will already be aware of the issues likely to arise in your case. This divorce lawyer knows the court rules and the court personnel. She knows the other practitioners in her area of expertise. She knows the best appraisers (real estate, jewelry, pensions, etc.), the best therapists, and the best tax lawyers for this case.

Your divorce lawyer also brings certain unique skills to the case. He negotiates in a way that is designed to lessen antagonism with your child’s other parent, while still vigorously protecting your rights. He gives you advice that is geared to your family situation, not just your financial needs.

These are all great points. I would add the following:

Judges hold pro se litigants to the same strict standards and rules as attorneys, and honestly, most judges to not like people coming into court without an attorney.

If the other side has an attorney that is worth their salt, the pro se litigant will have probably lost the case months before they even get to court. Issues with jurisdiction, service, discovery, depositions, admissions, temporary orders, default, local rule compliance, etc. can blow the whole case.

Divorce is stressful enough without an experienced attorney who specializes in family law. The attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court. Its better that way, trust me.

You wouldn't perform your own surgery, why would you try to take on the court by yourself. Divorce lawyers are here for a reason.

The court is not going to accept those forms you downloaded from the Internet.

Whatever your argument, the judge has heard it before. The attorney knows how to pick the battles and keep you on the judges good side.

Family law is not like other areas of the law. A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.