On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Thursday, June 19, 2014
We often get asked whether a person must allege certain grounds to obtain a divorce in Missouri. As with any other civil claim, a party must plead certain elements, or grounds, to obtain relief. But when most people ask about grounds, they really mean allegations of fault or misconduct. To answer that question, a little explanation is in order.
Before the implementation of the current Uniform Dissolution of Marriage Act (UDMA), Missouri, like most states, made divorce more difficult, reflecting a general social view that marriage is a special union and should be preserved unless a spouse could show exceptional circumstances of misconduct – usually adultery, abuse, or abandonment. So, if a couple truly wanted a divorce, the party filing had to allege one of those “fault” grounds. Eventually, our society began to view the restrictive or narrow grounds for divorce archaic, locking parties into unhappy marriages, and based in part on sexist views of women as fragile and in need of a male provider. States began enacting “no fault” divorce statutes, which meant that if a couple satisfied the residency requirements, the state could grant a divorce so long as one party wanted out of the marriage.
In Missouri, the UDMA represents the “no fault” commitment, requiring only that a party seeking a divorce allege that the marriage is “irretrievably broken” with no “reasonable likelihood” it can be “preserved.” The element of the marriage having reached its absolute endpoint with no chance of reconciliation distinguishes divorce from legal separation.
So, as long as one party wants a divorce, he or she simply files a petition, states “irretrievably broken,” and no more is required…unless the other spouse has a different view.
Usually, if one spouse files for divorce and alleges the marriage is irretrievably broken, the other spouse will not disagree. But sometimes a spouse may believe the marriage still can be saved. When that spouse files his or her answer and denies the marriage is irretrievably broken, the court now has to resolve the matter of whether the marriage is truly over – if it is not, the court cannot grant a divorce.
What happens in this situation? By statute, the moving party must supply evidence that (a) the other party committed adultery, (b) that the other party has behaved in such a way that the moving party cannot be expected to live with the other party, (c) that the other party has abandoned the moving party for at least six continuous months prior to the filing of the petition, (d) that the parties by mutual consent have lived apart for twelve continuous months prior to the filing of the petition, or (e) that the parties have lived apart for twenty-four continuous months prior to the filing of the petition. These seem like allegations of fault – does that mean Missouri is not really a no fault state?
That is a good question. Our courts take the proof of a marriage as irretrievably broken very seriously, and appellate courts have reversed a judgment of dissolution of marriage when the opposing party did not admit to the irretrievably broken nature of the marriage and the moving party failed to produce evidence of the “fault” grounds. However, these cases tend to be rare, because courts understand the UDMA as a “no fault” design, and allowing a spouse to easily block dissolution by requiring proof of fault would undermine the statutory design. Generally, the courts hear sufficient testimony from the moving spouse to find that it would be unreasonable to expect that party to continue living together with the other spouse – but only when such testimony is put on the record at a hearing.
Does fault ever matter in Missouri then? Aside from the rare circumstance where it may need to be alleged as just described, fault has no real place in our “no fault” system, except when it does. You see, a court can consider misconduct of the parties in dividing property and awarding maintenance and in finding which parent may be the proper custodian for the children. So abandonment for long periods of time would hurt the chance of the abandoning spouse receiving joint custody, and an abusive spouse who also serially cheated on the other spouse could support an unequal distribution of the marital estate that would give more property to the spouse subjected to the abuse and adultery.
In short, a party does not need to allege fault to obtain a divorce, but the matter of fault, understood as marital misconduct, can factor into the outcome of the divorce. Divorce may be easy to obtain, but if you have been bad, it may carry a heavier cost.
If you have questions about the basis for a divorce in Missouri, contact our St. Louis family law attorneys – we can help.