Missouri Divorce and Family Law Blog

Bankruptcy Filings Up Substantially in 2009

Kansas City Divorce Attorney Mark Wortman — Sat, 13 Mar 2010 11:51:16 -0600

As a practicing family and bankruptcy attorney, I consistently run into cases where people are dealing with both a divorce (or other family law related matter), as well as a bankruptcy. This is because, many times, one is the cause of the other (this works both ways), and the cases often go hand in hand. That is probably no surprise considering the current economic climate, and if this applies to you, believe me, you are far from alone. Check out the numbers:

Bankruptcy filings in the federal courts rose 31.9 percent in calendar year 2009, according to data released by the Administrative Office of the U.S. Courts. The number of bankruptcies filed in the twelve-month period ending December 31, 2009, totaled 1,473,675, up from 1,117,641 bankruptcies filed in 2008.

Filings have grown steadily since 2006, when bankruptcy filings totaled 617,660, in the first full 12-month period after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect. An historic high in the number of bankruptcy filings was seen in 2005, when over 2 million bankruptcies were filed just before BAPCPA took effect.

Filings by Chapter
In 2009, filings rose under Chapters 7, 11, 12 and 13 of the U.S. bankruptcy code.

· Chapter 7 filings totaled 1,050,832 up 41 percent from the 744,364, Chapter 7 filings reported in 2008.

· Chapter 11 filings rose 50 percent to 15,189, up from the 10,147 filings in 2008.

· Chapter 13 filings were 406,962, up 12 percent from the 362,705 filings in 2008.

· Chapter 12 filings totaled 544, up 58 percent in 2009, compared to 345 Chapter 12 bankruptcy filings in CY 2008.

Temporary breaks in post-secondary vocational education do not violate the continuous enrollment requirement of Missouri's post-secondary education child support law.

Kansas City Divorce Attorney Mark Wortman — Sat, 27 Feb 2010 13:34:54 -0600

Child support in Missouri can continue after the child turns 18, and until 21, if the child is attending a post high school education program, provided that several requirements are met. (See RSMo section 452.340.5 below in the extended post). One such requirement is that the child be continuously enrolled in the education program. A recent ruling from the Court of Appeals held that temporary breaks during the education, in this case a vocational program, do not violate the continuous enrollment requirement. The Court stated that the statute clearly contemplates a reasonable semester-long break, which is the summer break in a traditional college schedule, from post-secondary schooling. The statue does not require a post-secondary student to attend school for over a year without a break, or until 21 with no break whatsoever.

In the recent case, the student was attending a vocational program that had a course schedule in 60 week blocks (a year and a few months), and the non-custodial parent attempted to terminate the child support and emancipate the child when the child took a 10 week break, not enrolling in the next session immediately after the previous one. The trial court agreed and ordered the child emancipated, but the Court of Appeals reversed, stating that a child should not have additional burdens placed on him or her simply because they attend a vocational program rather than a traditional college. See below for the complete text of the relevant statute.

RSMo section 452.340.5, pertaining to post secondary education requirements for child support, reads as follows:

If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If 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, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll 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, 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. When enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement. Upon request for notification of the child's grades by the noncustodial parent, the child shall produce the required documents to the noncustodial parent within thirty days of receipt of grades from the education institution. If the child fails to produce the required documents, payment of child support may terminate without the accrual of any child support arrearage and shall not be eligible for reinstatement. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subsection. If the child is enrolled in such an institution, the child or parent obligated to pay support may petition the court to amend the order to direct the obligated parent to make the payments directly to the child. As used in this section, an "institution of vocational education" means any post-secondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any community college, college, or university at which the child attends classes regularly. A child who has been diagnosed with a developmental disability, as defined in section 630.005, RSMo, or whose physical disability or diagnosed health problem limits the child's ability to carry the number of credit hours prescribed in this subsection, shall remain eligible for child support so long as such child is enrolled in and attending an institution of vocational or higher education, and the child continues to meet the other requirements of this subsection. 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.

Recent Case: Termination Of Incarcerated Parent's Rights Reversed

Kansas City Divorce Attorney Mark Wortman — Mon, 08 Feb 2010 12:56:05 -0600

In a recent termination of parental rights case, the Court stated that statutory grounds of abandonment, neglect, and unfitness require clear, cogent, and convincing evidence. The Incarcerated parent’s diligent efforts at maintaining contact with child refuted such allegations. The “Child may suffer from Father’s absence, but getting in trouble before he knew about Child is no proof that Father now wants no relationship with her.” Failure to send money from 28¢ per day wages was de minimis. Incarceration does not raise the presumption of unfitness. The child’s best interests require only preponderance of evidence, but the issue never arises until statutory grounds are established.

The entire opinion can be read here.

Full Custody, Joint Custody, Sole or Split? Or maybe 50/50. What do I really want and what exactly do these words mean in Missouri anyway?

Kansas City Divorce Attorney Mark Wortman — Sat, 09 Jan 2010 12:50:22 -0600

In cases involving children, the Court must, either by agreement or by trial, set up some sort of custodial arrangement for the kids involved. There are many options available, all of which fit under a just a few legally recognized categories. There are as many if not more “definitions” of custody floating around out there that don’t actually mean anything legally. People usually have at least some idea of what it is that they are seeking in their minds, but they have trouble defining it. So here we go with a little Child Custody 101 to assist those with their initial case preparation:

Legal Custody. This is one of the two types of custody that must be determined by a Missouri Court in all cases. The legal aspect of custody means decision making and parental authority, basically. It means having the legal right to make (and participate in) any material decisions affecting the children. Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers are included in the model parenting plan, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference is for joint legal custody.

Physical Custody. This is the second aspect of custody that must also be determined. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly, however, and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, 3 day/4 day, 5 day/2 day, 50/50, open ended, or whatever other schedule is appropriate for the case. Just as a note, in a 50/50 joint physical parenting schedule, reduced child support is still usually paid in some form or another.

Joint Custody. As discussed above, this is the preferred arrangement and will usually be awarded unless a physical or emotional danger to the child is demonstrated. The Court has to determine whether joint custody is appropriate as to both the legal and physical aspects of custody.

Sole Custody. This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Also, as many times as I have seen it, there is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition.

Split Custody. This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.

Full Custody. There is no definition of Full Custody in Missouri and it has no legal significance. When referring to this, people are talking about some combination of the above types of custody.

Primary Custody. This is no longer a legal definition in Missouri. Now it is called “residential address for education and mailing purposes.” It usually means the home where the children reside for the greater amount of time, and the home that is in the children’s school district. The parents are supposed to be equal so they are no longer referred to as the primary parent and the lesser parent.

Visitation. This is the time where you view the body before a funeral. So, if you are talking about your kids, call it something else, like “parenting time”.

Hopefully, this helps to clarify a little bit, but when it comes down to it, it is still just a bunch of words on paper. Put the children first, focus on what is best for them and what will really work with your family, and don’t get too wrapped up in the terminology.

Alimony payments terminate upon recipient's remarriage unless expressly agreed otherwise.

Kansas City Divorce Attorney Mark Wortman — Tue, 08 Dec 2009 17:18:18 -0600

The Kansas Missouri Lawyers Blog had a great post recently discussing a recent Missouri ruling regarding the termination of maintenance (Alimony) payments when a former spouse remarries. The complete article is as follows:

The Missouri Court of Appeals recently held that absent an express agreement otherwise maintenance (alimony) payments terminate upon the recipient’s remarriage. The Court went on to hold that the use of the word “only” was insufficient to show this express agreement. See the opinion here.

In this case, husband and wife divorced in October of 2003. The judgment included a provision requiring the husband to pay his former wife periodic, modifiable maintenance of $500 per month. This maintenance arrangement was later amended by the parties. As part of this stipulation, the parties stated that “The maintenance obligation herein should terminate upon [the wife's] death.” The lower court’s modified judgment setting forth the stipulation stated, “Said maintenance obligation shall only terminate upon the death of [the wife] or September 30, 20011, which occurs first.” (emphasis added).

The wife remarried thereafter, and husband filed a motion to terminate his maintenance obligation. The Court noted that Section 452.370.3 provides in relevant part, “Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to pay future statutory maintenance is terminated upon the death or either party or the remarriage of the party receiving maintenance.” Based on its interpretation and judicial precedent, the Court held, “[I]n order to rebut the statutory presumption that maintenance terminates upon the receiving spouse’s remarriage, a dissolution decree must expressly refer to the receiving spouse’s possible future remarriage, and must expressly provide that maintenance payments shall continue beyond that contingency.”

Thus, at least in Missouri, parties to a divorce, working with their attorneys, must carefully draft separation and maintenance agreements to capture the parties’ wishes. In particular, if the parties wish that maintenance payments will continue indefinitely or for sometime after the recipient’s remarriage, the parties must state this fact by expressly referencing remarriage and describing its consequences.

Thanks again to the Kansas Missouri Lawyer's Blog, a great legal resource for people in the Kansas City area, for this case law update.

The Financial Aspects of Divorce: Why It usually IS "All About The Money"

Kansas City Divorce Attorney Mark Wortman — Sun, 22 Nov 2009 13:22:23 -0600

I can’t think of how many times that I have had a client tell me, regardless of what the issue is that is in dispute, that the opposing party is “just worried about money” or that it is “all about the money” for him or her, and that is their sole motivation in the case. Or maybe it is the other way around. My usual response is “isn’t it always?” There are so many financial aspects of divorce that have to be balanced that if parties aren’t careful, they can end up in a big money mess. Here are a few of the big ones:

1. 2 households instead of one: Before a couple or family divorces, they live in one residence with one set of bills and expenses, paid by however much money the couple/parents bring in. Upon divorce, the same level of income still exists, but now there are two mortgages/rent, two sets of utilities, two sets of grocery bills, two car payments, relocation expenses, first and last month’s rent, and so on. Basically, double or so the expenses on the same income. It is not hard to see how difficult this is in and of itself.

2. Debts. These days, many families are just a paycheck or two away from real trouble with credit cards and other unsecured debts, and if there are significant debts involved in the divorce, a real challenge exists. Sure the court can divide the debts and assign liability to each spouse, but it doesn’t do much good if the net marital estate is significantly reduced or eliminated by the debt. A divorce is a separation of financial livelihoods, and when possible, it is a good idea to use assets in the marital estate to reduce or eliminate debt before dividing assets. The less debt after the divorce the better for both parties, even if on paper one spouse is supposed to be responsible for it. It is a future fight or bankruptcy filing waiting to happen.

3. Child Support: Quite simply, nobody is happy with it. If you have to pay it, it is going to be perceived to be too much, and if you are receiving it, it is perceived to not be enough. In Missouri child support is largely a mathematical calculation based on incomes and other expenses, and to some degree it is what it is. But regardless, it another factor affecting the same level of income pre-divorce, and it will never make a party “whole” or maintain a pre-divorce standard of living.

4. Maintenance: Although there is no mathematical formula the same holds true as does for child support, it is probably both too much and not enough, and it is still going to have to come out of the same pot of money. Unless the parties are very well off financially to begin with, to expect the same standard of living pre-divorce is usually unrealistic. Although appropriate in some cases of long marriage, large disparities in income, or other factors, maintenance in Missouri is awarded in a small percentage of cases.

5. Health Insurance: Regardless of your politics on the issue, health insurance is expensive and upon divorce usually a former spouse cannot remain on the other spouse’s health insurance. So, unless both parties can get affordable health insurance, if such a thing exists, then this can be a big financial factor that likely may only have a handful of undesirable solutions.

6. Attorney fees and case costs: On top of all of this, the divorce is a direct expense in terms of attorney fees and costs associated with the case. If the case is contested, then the total cost on the family is the sum of both spouses total investment in the case. Attorney fees are not usually awarded, which is all the more reason to try to approach the case in an informed and rational way, and try to keep costs and conflict down. The higher the conflict, the higher the cost every single time.

There are of course, other issues particular to certain cases, but regardless of how extensive the list may be, the bottom line is that divorcing spouses need to be smart and rational about how to separate financially and view their situation in a realistic way. Otherwise, financial disaster in one form or another, certainly awaits.

Parenting Plan that Vaguely Assigns Decision Making Responsibilities to Third Party Unenforceable.

Kansas City Divorce Attorney Mark Wortman — Mon, 19 Oct 2009 10:52:40 -0600

In a recent ruling by the Missouri Court of Appeals, in a custody modification proceeding, the trial court’s modified parenting plan delegated the authority to make all medical, educational, and extracurricular decisions for one of the parents’ two children to her “team of doctors.” The Court held that these provisions of the plan are too vague and indefinite to be enforceable in that the phrase “team of doctors” is not sufficiently definite and specific. Provisions in a judgment should be definite as indefinite provisions are unenforceable. The judgment must be sufficiently certain to be susceptible of enforcement in the manner provided by law without requiring external proof.

Although not specifically held, it was noted that 452.375.5(5)(a) allows a court to grant custody to a third party when it finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child. However, to do this, the court must make that third person a party to the action. However, parents who share joint legal custody of a child or children can agree to designate a third party as a tie-breaker to resolve individual issues upon which they cannot agree, and such an arrangement does not violate section 452.375.1(2). In this case, the “team of doctors” were not made a party to the case, and the modified parenting plan was against the weight of the evidence in that the parents did not intend to delegate to the team of doctors their authority to make educational or extracurricular decisions for their daughter.

The entire opinion can be read here.

Unmarried Parents: What you should know and do when served with an administrative order for child support (from the Family Support Division)

Kansas City Divorce Attorney Mark Wortman — Wed, 07 Oct 2009 20:05:20 -0600

In Missouri, there are two primary ways that a non-married parent can seek to establish child support, judicial and administrative. A judicial action is through the circuit court, and an administrative action is through the Family Support Division. The Division is an administrative agency which has the power to issue binding orders for child support, which may or may not later be filed as a judicial action in the appropriate circuit court. The agency has their own administrative process, where a case worker calculates child support on information provided by the custodial parent, and the non-custodial parent is then served, usually by mail, with the notice of an order. The non-custodial parent is given the opportunity to dispute the amount calculated by the case worker, and request a hearing within a certain number of days. If the non-custodial parent does not act, then the order becomes final, and the non-custodial parent is bound without further legal process. However, if a hearing is requested, then a telephone “trial” before a hearing officer is conducted, and the child support is determined based on the evidence presented. Also, a parent can petition the circuit court for judicial review of the administrative order within 30 days of the entry of an administrative order, even after an administrative hearing.

However, the non-custodial parent must know that the hearing docket is backlogged for many months, sometimes even a year, and even after the hearing is conducted it may be many more months before the order is issued. Once the order finally is issued, it is set to take effect all the way back to the date that the case was started, so the non-custodial parent may have a year or more of back child support simply because of the slow administrative process, even though there was no order in effect for those months. This can negatively affect the obligor's credit, and the arrearage is usually assessed at an additional amount per month, basically raising the child support by as much as a few hundred dollars. Also, once all of this is over, there is an order for child support, but the agency does not have the power to issue orders for custody or visitation, and if the non-custodial parent is the father, essentially there are no legal rights established, other than the “right” to pay child support

The best course of action to take when served with an administrative action for child support is to immediately consult with an attorney. At a minimum, the attorney can represent the non-custodial parent at the administrative hearing to ensure the proper evidence is before the agency and that the support amount is calculated properly. But more importantly a good child support attorney may be able to, in effect, “move” the case to a circuit court before a judge through a judicial action, establish legal custody or visitation rights, ensure paternity is determined conclusively, terminate the administrative action, and remove the family support division from the case. In a judicial action, unless state debt or interest is in issue, the Family Support Division or other state agency will not participate in the case. Timing is everything however in dealing with these cases, so consulting with an attorney immediately is critical to avoid a potential financial mess.

Parent Relocation - Finding that Children Could Not Relocate Reversed

Kansas City Divorce Attorney Mark Wortman — Mon, 28 Sep 2009 13:32:02 -0600

In today's highly mobile society, is is not uncommon at all for one parent to desire to relocate to another city or state. While Courts recognize that a parent cannot realistically be confined to one geographic location, the greater the distance between the parents, the more difficult it can be to effectively exercise a joint physical custody arrangement. Courts routinely have to make difficult decisions that will heavily impact the child's relationship with a non-custodial parent.

When determining whether to allow children to relocate, the decision is made on a case by case basis, and there is no hard and fast rule. The Court is required to consider whether the move is made in good faith and will serve the best interests of the children, and the the court looks to the enumerated factors in RSMO 452.375.2, as in any custody proceeding. Whether or not the children would benefit economically, socially, or educationally are also considerations, but economic benefit does not have to be shown.

In a recent ruling from the Court of Appeals, a finding prohibiting the relocation was overturned, based on evidence of Mother’s history as primary caregiver, careful provision for children’s needs including time with Father, Father’s child support arrearages and criminal offenses, as well as other factors. The Court found that, even though the Father and other immediate family would have substantially less time with the children and the children would be moved to another city and another school, the move was in the children's best interests. To get an idea of how the Court approaches these cases, and what other factors are considered, click here to read the opinion.

New Form 14 Child Support Calculation Sheet Effective August 28, 2009

Kansas City Divorce Attorney Mark Wortman — Sat, 29 Aug 2009 11:22:43 -0600

The Missouri Supreme Court has issued an order repealing the prior Form 14 Presumed Child Support Calculation Sheet effective August 28, 2009., and adopting a new Form 14. The only change is that the dates of birth of the children are no longer to appear on the form, only the children's ages. Support amounts are not affected.

This change is to bring the Form 14 into conformity with Missouri's new social security number redaction law, which provides that social security numbers and dates of birth are no longer to appear in pleadings (documents filed with the court). Instead, court filings will be accompanied by a new court information cover sheet, which will contain this personal information, but will be sealed and separated from the public record, so that the information can only be viewed by court personnel.

New Form 14

Recent Ruling: Property Division Accounts for Squandering

Kansas City Divorce Attorney Mark Wortman — Sat, 15 Aug 2009 10:37:24 -0600

In a recent ruling by the Missouri Court of Appeals, the court upheld a trial court ruling where marital assets were divided unequally between the spouses, the division included money spent by a spouse after separation, and spousal maintenance was awarded even though the spouse receiving the maintenance also received the larger portion of the marital property.

On the issue of division and the characterization of the property, the court held that the question of whether property is marital property is, among other things, one of credibility. The trial court is given due regard to the determination of credibility of witnesses and the trial judge is free to believe all, part, or none of the testimony of any witness. The trial judge may disbelieve testimony adduced by a witness even if the testimony is not contradicted. In this recent case, even though the Husband testified that he thought the property in question was a non-marital asset, all other evidence indicated that it was jointly owned by the parties as marital property.

On the issue of marital assets spent by one spouse after separation but before the dissolution of marriage, the court held that the “spending party” can be ordered to reimburse the other spouse through disproportionate property division. In this case, the issue was one or more retirement accounts that the Husband claimed that he “lived on” during the separation, although his salary was sufficient to cover all of his living expenses. The court held that the trial court does not have to specifically find that it believes monies have actually been secreted or squandered in anticipation of divorce, because its actions can imply such a conclusion where sufficient evidence exists to support that conclusion. The court also, even after the reimbursement of the “spent” money and attorney fees, upheld the award of maintenance. The court said that, even though there was an award of substantial marital assets that the Husband claimed could support the wife, the wife was not required to deplete, or “live off” of those of marital assets before maintenance can be awarded or take effect.

The full text of the opinion can be read here.

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

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

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

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

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

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

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

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

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

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