Do You Know What to Expect During the Divorce Process? Part Two

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A look at the divorce process

Below is a loose outline of 8 things that happen during the divorce process. I use the word “loosely” because each case is unique, and your circumstance will determine the process. Based on your unique circumstance, you may experience each or some of these steps in one form or another.

1. File for Divorce

A divorce (or dissolution of marriage) usually begins with the filing of a pleading, typically referred to as the original Petition for Dissolution of Marriage. The original Petition will be filed with the Circuit Clerk in the county where you live. Other pleadings are also filed with the original Petition: (a) Statement of Property listing all marital and separate property and debt to be divided by the court; (b) Statement of Income and Expenses listing what you earn per month and what you spend per month to maintain your current standard of living; (c) Certificate of Dissolution form to eventually be provided to the Bureau of Vital Statistics of State of Missouri at the conclusion of the case; and (d) a Confidential Case Filing Information Sheet which provides information to the Court that is protected and not set forth on the original Petition. After the original Petition has been filed, a copy must be served on (or delivered to) your spouse.

2. Decide Child Custody

The single most important thing parents need to work out in a divorce is the way they will continue to raise their children. To start this process, each party files a proposed Parenting Plan with the Court within 30 days of the date a copy of the original Petition was served on (or delivered to) your spouse. The Plan will set forth the label for decision making (joint or sole legal custody) and the label for physical custody (joint or sole physical custody). It is always best if the parents can work out a final Parenting Plan cooperatively as the case proceeds.

There are many questions that must be resolved, such as where the children will live, how much time they will spend with either parent, where they will spend holidays, or which parent will make decisions about the children. The label for decision making is very important as it can impact where the children will go to school, what medical care or medication they will receive, what religion the children will be raised, and what activities the children will be enrolled in.

If the parents can’t agree on these issues, the Court will consider the best interests of the children in resolving the conflicts. The Court will consider 8 factors set forth in Section 452.375.2 RSMo, that include: (1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties; (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child; (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests; (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent; (5) The child’s adjustment to the child’s home, school, and community; (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;(7) The intention of either parent to relocate the principal residence of the child; and (8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.

Court orders involving children are never final. They can always be changed if the best interests of the children require it.

3. Calculate Child Support

After a divorce, both parents remain responsible for supporting their children. Divorcing parents need to either negotiate a monthly child support sum or the Courts will use the Missouri Form 14 Child Support Calculation Worksheet to do so. There are several factors to consider in working this out, such as the income of each parent, monthly childcare costs, health insurance costs, and a credit to the payor of child support for the number of overnights he or she has with the children.

4. Divide Marital Property

You will need to either negotiate an agreement on how your marital property is to be divided or proceed to a trial before the Court. Judges always prefer that the parties work things out for themselves, and many local counties require mandatory mediation, which means meeting with a neutral third party who will help you resolve any disagreements over who gets what. Ultimately, if the parties can’t agree on a way to divide their property, the Court will decide it for them.

5. Distribute Marital Debt

Debt incurred during the marriage needs to be divided between the parties along with the property discussed above. Marital debt (such as a jointly titled mortgage loan) can be resolved by the award or sale of the property associated with the debt. Other marital debt may not be so straightforward including the allocation of unsecured debt (such as credit card debt). The label of marital debt does not mean that it must be divided equally between the spouses. A Court can find that some debts should be considered the responsibility of only one spouse depending on the evidence presented.

6. Negotiate Spousal Support

Support paid by one ex-spouse for the support of the other is called spousal support or maintenance. Missouri does not use the term alimony. Spousal support can be awarded to both husbands and wives. A Court will consider the following factors set forth in Section 452.335 RSMo when determining whether maintenance should be awarded: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself 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. Subsection 2 of the statute continues by stating that the maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) The comparative earning capacity of each spouse; (4) The standard of living established during the marriage; (5) The obligations and assets, including the marital property apportioned to him and the separate property of each party; (6) The duration of the marriage; (7) The age, and the physical and emotional condition of the spouse seeking maintenance; (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) The conduct of the parties during the marriage; and (10) Any other relevant factors.

7. Mediation

Divorce mediation is a process where the divorcing spouses sit down with a mediator (a neutral third party) to work out and resolve conflicts over property division, finances, debts, spousal support, child custody, and child support. If the mediation was Court ordered, the mediator often reports back to the Court with information about the mediation session(s). If the mediation was scheduled by the spouses or their attorneys, the mediation does not have to report back to the Court with the result of the process. Decisions reached in mediation are not legally binding but can be become binding once included in the Court’s final Judgment of Dissolution of Marriage. Attorneys usually don’t attend mediation sessions, though they may be available to advise the parties on legal issues.

8. Final Judgment of Dissolution of Marriage

The final Judgment of Dissolution of Marriage is the final decree of the Court that legally ends the marriage. The Judgment will also address the custody and support of the children, spousal support, the division of marital property and debt, and the payment of attorney’s fees. It can also restore the maiden or pre-marriage name to one of the spouses.

9. Filing for divorce means stepping into the world of the Family Court System

It is a world of legal rules and, at times, extreme emotional stress. The divorce process can change the way you live, the way you think, and the amount of time you spend with your children. Ignorance of what takes place in the system and how to take care of yourself can be the mistake that prevents you from having a successful post-divorce life.

I’ve shared this information with you over the last two blog posts to help you understand the process before putting yourself in the middle of the process. Should you need the advice of an experienced divorce attorney or have questions or concerns about your situation, know that we are here to help and ready to discuss those issues with you.

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