Should You Move Out During a Divorce?

There’s no question it can be difficult to reside with your spouse during the divorce process. It may be tempting to separate, but before you do, you may want to consider the following questions (just to name a few):

Where will your children live? Under Missouri Statute 452.310.3, “Until permitted by order of the court, neither parent shall remove any child from the jurisdiction of the court or from any parent with whom the child has primarily resided for the sixty days immediately preceding the filing of the petition for dissolution of marriage or legal separation.” Translation: if you move out of the home without the court’s permission, the children may need to be in the care of the parent who is still in the marital home.

What about maintenance (alimony)? The amount of maintenance is based, in large part, on a person’s need for maintenance. If you move out of the marital home and decrease your living expenses, you may inadvertently lower your standard of living. The court may then determine how much maintenance you need based on this new, lower standard of living. This may result in less maintenance than you would have received had you stayed in the marital home.

Can you afford to move out? Paying for one house with two incomes is hard enough. When you separate, there may not be enough money to maintain two homes. There is no guarantee the court will require one spouse to support the new residence of the other spouse during a pending divorce proceeding. An added benefit to staying in the marital home is that you know it will be cared for properly

Are you able to purchase a new home? If you plan to borrow money to purchase a separate home for yourself while you are still married, you will need your spouse’s consent (and there is no requirement he or she will give that consent). You should be very careful when entering into any contracts for the purchase of real estate if it depends on the cooperation of your spouse – cooperation that is certainly not guaranteed during a divorce!

There are times when it may be appropriate to separate prior to the entry of the divorce judgment. For example, where domestic violence is present or where an agreement to separate has been formalized between the parties and the court has signed off on the agreement. Before you make any big decisions, such as moving out of the marital home, it is important to consult with an attorney.

Be aware every situation is unique. If you have questions about your individual situation, please contact an attorney. This post should not be considered legal advice.

When is My Divorce Judgment Final?

There is often some confusion surrounding this question.  Simple Answer:  you will be divorced on the day the judge signs your divorce judgment.  Complicated Answer:  Although you will be divorced on the day the judge signs your divorce judgment, the law allows for up to 40 days for each party (if they so choose) to file certain requests with the court which could effect the finality of the divorce judgment.  Due to this uncertainty, big life decisions that are dependent upon your status as a single person, such as buying a house, or getting remarried, should be put on hold until 40 days have passed.  If you need to take any such action during the 40 days following the entry of your divorce judgment, it would be best to contact an attorney to discuss your situation in more detail.

Be aware every situation is unique.  If you have questions about your individual situation, please contact an attorney.  This post should not be considered to have formed an attorney/client relationship and should not be considered legal advice.

Common Law Marriage – What is it?

Marriage has not always been as formal as we see it today. In fact, marriages were once private agreements between individuals and families. In 1753, Britain passed The Marriage Act, the first statutory legislation in England to require formal marriage ceremonies, but this did not apply to Britain’s overseas colonies of the time, so common law marriage continued to be recognized in the future United States. Common law marriage can still be contracted in the U.S. in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington D.C.

The Missouri legislature has rejected the idea of common law marriage. BUT, Missouri may recognize common law marriages properly contracted in the states listed above. This sounds simple enough, but picture this:

Joe and Sally were “common law married” in Colorado. They lived together and called each other husband and wife. Sally even took Joe’s last name and they bought a house together, opened a few bank accounts in joint names and bought a couple of cars. A few years down the road, Joe and Sally had a son, Johnny.

One day Sally realizes she wants a divorce and moves to Missouri. That sounds normal enough until Joe says, “Hey, we never got married.” With no valid marriage, Sally can’t have a divorce and the family is now left in flux. What is Sally to do now? Who will get the house? Will she keep her car? Will they divide the retirement? Will Sally get alimony from Joe? In order for the court to address these issues, Sally has to prove that she and Joe did, in fact, enter into a common law marriage in Colorado.

Generally states allowing contracts of common law marriage have certain requirements for recognition. For example, Colorado requires that the couple has done a few things: (1) Cohabitate, (2) Mutually agree to be married, and (3) Openly hold themselves out to the public as married. Most other states recognizing contracts of common law marriage have similar requirements and, obviously, each of these requirements could be up for debate in court between husband and wife.

Although these situations are somewhat uncommon, if Sally is able to show that there was a valid common law marriage in Colorado, she may be able to receive a divorce in Missouri.

Be aware every situation is unique. If you have questions about your individual situation, please contact an attorney. This post should not be considered to have formed an attorney/client relationship and should not be considered legal advice.

What to Expect at a Settlement Conference

The court process can be stressful at times.  This stress can be reduced if you have a good idea of what to expect during each step along the way.  A key part of any litigated family law case is a settlement conference.  Settlement conferences may also be referred to as ‘Case Management Conferences’ in St. Charles County or ‘Pre-Trial Conferences’ or ‘Status Conferences’ in St. Louis City.

A settlement conference is a meeting between the Judge and the attorneys.   Settlement conferences are required per local court rule and if one is not conducted, the case may be dismissed.  This meeting generally takes place in the Judge’s chambers, in private, and without the parties.  In some rare cases the judge will conduct a settlement conference in the courtroom.

During this meeting, the parties will sit separately, either in the courtroom or in the hallway outside of the courtroom.  Parties are generally not required to talk to each other unless they wish to.  Except in rare cases, neither party will meet the Judge at this conference.

At a settlement conference, the attorneys update the Judge on the status of settlement discussions and ask for feedback on outstanding issues.  Most judges will give some feedback with the intention of helping the parties work towards settlement. A settlement conference, by its nature, is an informal meeting designed to help move the parties toward a resolution.

A settlement conference is different from a trial or a hearing in that the Judge will not be making any decisions or entering any orders regarding a case at that time unless the parties can agree. When a party wishes for the judge to make a decision on an outstanding issue, a formal written request must generally be made and a hearing must be set on a different docket than that of the settlement conference, per local rules of the court.

Generally, unless an emergency situation arises, these formal requests would not be placed on a docket for a hearing until a settlement conference has occurred. The next steps following the conference will depend on the outcome of the discussions at the settlement conference.  These steps may include additional formal discovery (i.e. information gathering) and continued settlement negotiations.

The court, in an effort to continue to move cases forward, will most likely set a case for an additional settlement conference to review the status of the matter.  The court may also set a trial date, generally several months away (depending on the case) to allow time for settlement possibilities.  If a settlement is reached before the trial date, the judgment will be entered at a brief hearing and, generally, no trial will be necessary.

Be aware this is a general outline and every situation is unique.  If you have questions about your individual situation, please contact an attorney.  This post should not be considered legal advice.

Communication During Litigation: Keeping Your Cool

Let’s face it – litigation can be stressful and heated.  Communication that was once routine may now prove difficult.  Yelling at your spouse when the kids come back a few minutes late (or minus some clothes you sent in the diaper bag), may offer temporary satisfaction, but before you do that, you may want to consider a few things…

First, while your intimate relationship is ending, your relationship as parents will continue for years to come.  In addition to the big events – graduations, ball games and recitals, the day-to-day parenting duties will remain.  You and your soon-to-be ex will need to work together to be sure teeth get brushed and homework gets finished in both homes.  It’s better for your kids to see a positive relationship even under negative circumstances.

Second, you should also be aware your communications could become part of the court process.  The judge may review communications (or lack thereof) and take that into account in deciding parenting time and decision making authority.

Finally, we all know that litigation can be expensive.  Heightened conflict requires more attorney involvement.

Communication during litigation should be brief, businesslike and deliberate – do not be reactive.  When you are angry, you may want to consider waiting a day to respond.  You may even want to contact your attorney.  Never assume your communications are private.  And remember, civil communication goes a long way towards keeping costs down.

Be aware every situation is unique.  This post should not be considered legal advice.  If you have questions about your individual situation, please contact an attorney.

Same-Sex Marriage & Divorce Update

Updated:  Same-sex couples may now marry and divorce in Missouri.

This is what we know about Missouri same-sex marriages as of October 6, 2014:

  • Judge Youngs in Kansas City ruled on October 3, 2014 that Sections 451.022 and 104.012 of the Missouri Statutes and Article 1, Section 33 of the Missouri Constitution violate the 14th Amendment of the United States Constitution.  In summary, this means that assuming this judgment is not overturned on appeal, the State of Missouri must now recognize same-sex marriages lawfully performed outside of Missouri.

What does this mean for same-sex couples wanting a divorce in Missouri?

  • Although Judge Youngs’ ruling in Barrier v. Vasterling applies to the defendants (state and city officials in Missouri) and requires these defendants to recognize same-sex marriages lawfully performed outside of Missouri, it is unclear whether same-sex couples will now be allowed to divorce in Missouri.
  • One possible outcome is that, until a higher level court rules on this issue, circuit court judges may decide whether to allow same-sex divorces to move forward in their divisions.  It is also possible judges may await further clarification from the Missouri Supreme Court.

Here’s what we will be watching:

  • Will Attorney General Koster appeal the ruling in Barrier?  If he does not appeal the Barrier decision, Judge Youngs’ ruling will remain in place and Missouri will recognize same-sex marriages performed in other states.  LATE UPDATE: Attorney General Koster has decided not to appeal Judge Youngs’ ruling in Barrier v. Vasterling.  See the full statement here.
  • A case relating to same-sex divorce is currently pending at the Missouri Supreme Court.  This case should provide a direct answer as to whether same-sex couples may divorce in Missouri.  We expect a decision soon.
  • As a result of the Barrier decision, we expect same-sex divorce petitions to be filed throughout Missouri.  We will be watching to see how individual circuit judges proceed on this issue.

In the meantime, there are steps you can take to prepare for a possible divorce proceeding as we await clarity on this issue.  If you have additional questions, please contact us.