Missouri men’s divorce attorneys provide answers to frequently asked questions with regards to the divorce process and divorce laws in Missouri.
What are the grounds for divorce in Missouri?
Missouri is a no-fault state. It is not necessary to show that either one of the parties was at fault. The statutory basis for a divorce in Missouri is that there is no reasonable likelihood that the marriage can be preserved and, therefore, the marriage is irretrievably broken.
It is not necessary to prove fault in order to obtain a divorce. However, in order for the court to grant a divorce, the court must find that the marriage is irretrievably broken. If the court does not find that the marriage is irretrievably broken, then the court will grant a legal separation.
Does Missouri grant divorces based on marital fault?
No. However, marital fault (including dissipation of marital assets, improperly increasing marital debt, and extramarital affairs) is a factor that can be considered by the court in deciding other issues including maintenance (or alimony) and the division of marital property.
If your spouse does not want a divorce and denies that the marriage is irretrievably broken, you may still obtain a divorce. You will need to show one of the following:
- That your spouse committed adultery and that you cannot live with your spouse;
- That your spouse has behaved in such a way that you cannot live with your spouse;
- That your spouse has abandoned you for at least six continuous months before the divorce was filed;
- That you and your spouse have agreed to live separately and have done so for at least 12 continuous months before the divorce was filed; or
- That you and your spouse have lived separately for at least 24 months before the divorce was filed.
If the court does not find that the marriage is irretrievably broken and grants a legal separation, then either party can file a Motion to Convert the legal separation (judgment of legal separation) into a divorce (judgment of dissolution) no earlier than 90 days from the date that the judgment of legal separation was entered by the court.
What is a divorce going to cost me? Can I afford it?
In getting a divorce, you will most likely have to pay for attorney’s fees and court filing fees. Depending on the facts of your case, the court may order you to pay maintenance (or alimony), child support, or other money to your spouse to divide your property, possibly including your spouse’s attorney’s fees. It is certainly in your best interest to hire an experienced divorce attorney to make sure that your rights are asserted and your assets are protected in the long-term.
One of the issues that can affect the cost of a divorce is whether you and your spouse are agreeable to issues concerning the custody of your children, child support, maintenance, and the division of the property.
What typically happens if I go to court to obtain my divorce myself?
You will be at a significant disadvantage. You will be held to the same standards as an attorney, and you will be expected to know and comply with all of the statutes and case law applicable to divorce, the filing requirements, property laws, rules of evidence, and the court’s procedures and rules. You will not be given any special treatment or assistance in the courtroom.
Do I really need to hire an attorney?
There is no legal requirement that you hire an attorney. It is strongly recommended that you hire an experienced divorce attorney to represent you. If you choose to represent yourself, you will certainly be at a disadvantage in settlement negotiations and in the courtroom.
If you have children or if you have significant earnings or assets, you should consult with an attorney to make sure that your interests are protected.
The court may grant maintenance if it finds that the spouse seeking maintenance does not have sufficient property to provide for his/her reasonable needs and is unable to support himself/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
There is no pre-determined formula to determine the amount or length of maintenance. The court will consider relevant factors including the length of the marriage, the financial resources of the parties, the conduct of the parties during the marriage and the ability of the other spouse to meet their own needs. Maintenance is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse.
Generally, an award of maintenance is either for a specified term or modifiable.
If the parties decide to settle without a trial, they can settle on a term of maintenance – a specific dollar amount with a specific date that it stops. If the parties have a trial, the judge may only award modifiable maintenance – which means that the spouse that is ordered to pay maintenance would have to come back to court in the future to terminate or reduce his/her monthly maintenance obligation. Maintenance will terminate if either spouse dies or if the party receiving maintenance remarries.
Can I change my name at the time of divorce?
A spouse has the option to have her former or maiden name restored to her as part of the divorce.
Can I get an annulment in Missouri?
An annulment is a decision by the court that the marriage was not legal from the beginning. Annulments are granted only in limited and unusual situations.
Annulments may be granted for marriages that are between persons who are related to each other, between persons who lack the mental capacity to enter into a contract, between persons of the same sex, or where one spouse was still legally married to another person.
When can I file for divorce in Missouri?
You must be a resident of Missouri for at least 90 days before you can file for divorce. If children are involved and they do not have the necessary “ties” with the State of Missouri, then the opposing party may contest the divorce filing in Missouri if the filing party has only resided in the state for the requisite 90 days.
A divorce must be pending for a minimum of 30 days after it is filed before a divorce can be granted.
How long a divorce case will last depends on the specific facts and circumstances of your case. If there are significant issues upon which you and your spouse cannot agree to resolve, those issues will have to be resolved by a judge.
It is necessary for the attorneys to gather and exchange all of the information concerning what is in your children’s best interests, as well as information regarding your residence, mortgage, vehicles, loans, bank accounts, credit cards, and all of your other assets and debts.
The judge will schedule pretrial settlement conferences to determine the status of the case. If there is a good reason to delay the case, the judge has the discretion to do so. Otherwise, the judge will likely set a trial date. If there are any unresolved issues on the trial date, the parties will be allowed to present their evidence and make their arguments, and the judge will decide the remaining issues.
If attempts to serve my spouse do not work, what is my next step?
If you are not able to serve your spouse with the divorce paperwork, you may still obtain a divorce by publication. A public legal notice announcing your filing of the divorce will be placed in a legal newspaper for at least 30 days.
It is important to know that unless your spouse is personally served, the court cannot decide custody of the children, child support, or divide marital property. The court can only dissolve the marriage.
At what point during the process can a spouse remarry or start dating?
A spouse can date at any time after a party has filed for divorce, but it is not something that an attorney would advise their client to do. It is always better for your case if neither party dates during while the divorce case progresses.
However, a person that is married may not remarry until after the court enters an order dissolving the marriage. Bigamy is a criminal offense punishable by up to one year in jail, and/or a fine of up to $1,000.
Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?
Yes. The court’s order granting the divorce must address custody and support of the minor children, maintenance (or alimony), and the division of the spouses’ property.
How long do I have to live in Missouri to obtain a divorce?
In order for the court to grant a divorce, you must live in Missouri for at least 90 days immediately before the filing of the divorce. In addition, you must wait at least 30 days after you file before the court can grant you a divorce.
After I file for divorce, do I have to continue to live in Missouri?
There is no legal requirement that you continue to live in Missouri after you file for divorce. You should understand that you would need to remain involved your case and you may need to make court appearances.
If you have minor children, moving to another state while your divorce is pending can make the court’s custody and visitation decisions much more complicated.
After your divorce is granted, if you wish to move with your children to another state, you will have to give written notice to your former spouse. Your former spouse will have the opportunity to file a motion with the court to prevent you from relocating the children and the court will determine what is in the children’s best interests.
What if I am in the military and out of state?
You or your spouse may file a divorce at any time. However, the case can be stayed for a brief period of time while you are in active duty. This means that the court will put the case on hold and not take any action on issues of child custody, support, maintenance (or alimony), or division of property.
What forms do I need to file for a divorce in Missouri?
You should consult with an attorney who handles divorce cases.
How and where is a divorce complaint filed?
A verified petition for dissolution of marriage may be filed at the circuit clerk’s office in the county courthouse where either you or your spouse resides.
How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?
When you file your petition for dissolution, a copy will be delivered to the sheriff or a process server if you request. Either the sheriff or process server will serve the petition on your spouse, and will make a report to the court that he served the petition.
You will have to wait a minimum of 30 days after you file your petition before the court can grant a divorce. However, if the opposing party is served, then the opposing party has 30 days to file an Answer to the Petition for Dissolution of Marriage and/or Answer to the Petition for Dissolution of Marriage and Counter-Petition for Dissolution of Marriage.
Upon opposing party filing an Answer and/or Answer and Counter-Petition, then the case progresses in a normal manner within the court system and it is difficult to forecast how long it will take for the court to grant the divorce.
How is a divorce granted? Will I have to go to court?
Only a judge may grant a divorce.
If you and your spouse do not agree on all of the issues in your case, you will have to go to court to have the judge decide those matters. Most judges prefer that each party attend any and all settlement/pre-trial conferences set on their case as judges are of the opinion that the parties should be involved in their case and show interest.
There will be opportunities for a partial or complete resolution to settle all of the issues in your case without formal court proceedings. These may include mediation, informal negotiations, and settlement conferences in court, all of which require your appearance.
Depending on the complexity of the issues that cannot be resolved and the amount of evidence that is presented to the court, a trial can last a few hours or several days or even longer.
At any time can a parent change a minor child’s last name without the other parent’s permission?
Court approval is required to legally change a person’s name. In the case of a minor child, the parent seeking to change the child’s name would be required to file a separate cause of action. The other parent would have to be served and given notice of the proposed name change and would be given the opportunity to be involved in this decision.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
No. Missouri law does not recognize common law marriage.