This question is commonly asked by people who are considering divorce, and have not told their spouse that they are ready to leave the marriage. There is not a one size fits all answer to this one. First, you should hire an attorney and work out with that attorney an “exit plan.” There are several factor’s that your attorney will consider:
The list of questions is long.
The short answer is no. The long answer is depends but probably if the property is marital. If the law treats your property as your separate property, then you spouse is not entitled to any part of it. That means, usually, you keep the property that you brought with you into the marriage. Usually, you keep your inheritance. Usually you keep the assets in your trust that pre-existed the marriage. Usually, you keep gifts you received from anyone, including your spouse. The devil is always in the details, like in whose name is the property titled, but those are the general rules. Property acquired during the marriage is presumed marital property. So you if you are the spouse that is solely earning or mostly earning work related household income of your marriage, and you acquire property with those funds, the law may treat the property as marital. Marital property is subject to a fair division. That may be 50%, or 40% or 30% or 60% or any other ratio depending upon the application of statutory factors, but usually based upon fairness. The most common fairness issue arises from a recent affair, history of serial affairs, disability of a spouse and the list goes on.
If you have significant assets you should consider a prenuptial agreement. Missouri calls them antenuptial agreements. They are never ironclad. They should not address financial issues that do not relate to your children. So forget custody, visitation and child support issues. Court’s always have the authority to decide those issues. That said, Missouri’s case law is pretty strong in upholding these agreements if they relate to financial issues between the spouses.
A lawyer must, must, must draft this document. The rules for drafting them must be obeyed, and may change in a way that invalidates these agreements. A good prenup anticipates changes and adheres to the rules that already exist. The key to a prenup is notice and fairness to your prospective spouse at the time that it is signed. Your prospective spouse should have an independent attorney assisting in reviewing and approving it. Here is the fall back, if the prenup becomes invalidated, at least you will have a list of your separate property, acknowledged as such by the other side. That alone, is worth the prenup.
Helpful but not always. The trust and its assets are some evidence of the separate nature of that property. But you will need to observe the rules of that trust, and assure the trust assets retain their separate nature during the marriage. Also, the trust, unlike a prenup, will not assist you in regulating maintenance or defining by agreement the separate nature of property acquired during the marriage.
You need to know that we are at our best helping people protect children from neglectful or abusive parents. Our society is backtracking in its care for kids. Addiction is the main problem, and our society has not successfully addressed it. The standard for establishing a guardianship is to prove that both parents are unfit or unwilling to parent. And that must be done by clear and convincing evidence, which is the highest standard of proof, just below “beyond a reasonable doubt.” Do not let that scare you off if you see a need to save a child. Courts, now more than ever, are looking at guardianship issues from a common sense perspective. If the parents are doing what addicts do, and they let bad people in their homes, they move households often, ignore their kids care, sober up for a couple of months and then go back to it, and they are all apologies for a day or two, the courts have seen it all. Courts in Missouri are now focused on patterns of behaviors that are good predictors of bad future parenting. Of course, you as a guardian must prove yourself to be a fit guardian for the child(ren).
We consider these people to be the heroes of our practice. These are people who are willing to take a stand for a child(ren). Basically, step parent adoptions are allowed when the other parent abandoned the child or suffers from a significant mental disease that interferes with parenting. Relatives of a child seeking adoptions are usually grandparents, but aunts and uncles, cousins and nieces and nephews also do it. The law is a bit complicated, and the burden of proof is high, but the trend is that the courts are taking a more common sense approach to this kind of adoption. If the parent is a chronic addict or criminal that periodically drops out of contact, you need to investigate adoption. If the other parent just stayed away (usually the unwed father) and you are married, you should consider adoption. We have been taking and reviewing cases where the other parent is civilly committed to a mental health facility under the sexual predator’s law. We believe that if you are so sick that you were committed to an institution for predatory child sexual abuse, you don’t need to be a parent, period.