FAQ

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Questions about Divorce

I want to divorce, and I need to know whether I should move out of the house before I file for divorce?

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 factors that your attorney will consider:  

 

  • If you and your spouse have children, what move would be least disruptive for them?  
  • Is the home marital property?  
  • Are you or your children suffering from abuse at the hands of your spouse (domestic violence is found in every socio and economic class)?  
  • What is the likelihood of your spouse reaching a suitable agreement about living arrangements without attorney involvement?  

 

The list of questions is long.

Does my spouse have a right to 50% of my property?

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.

Questions to Ask Before Marriage

Should I have a prenup?

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. 

Should I have a trust before I marry?

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.  

Questions about Guardianships

What do I have to prove in order to become guardian of a child?

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).

Questions about Relative and Step-parent adoptions:

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.

Questions for Modification of Custody

What things should I consider if I want to modify a pre-existing judgment of custody and visitation?

  • Communication.  If you and your spouse are not communicating, one of you will likely become sole legal custodian, if that has not already happened.  Courts encourage co-parenting, but not if it has not happened after the custody judgment.
  • Asking the child what contact schedule they would like.  That is a good way to reduce your parenting time with your child by court order.  Judges hate this.  Don’t do it, no matter the age of the child.   
  • Using the child to pass messages between parents.  Another good way to lose parenting time.  Judges believe that no parent should use a child should to ask about anything on behalf of the other.  The other parent needs to buy the child a musical instrument as directed by court order, don’t tell the child.  You want to change the next weekend visit (or whatever), don’t have the child ask permission.   
  • School district:  Most courts don’t want to disrupt a child’s life.  If changing the child’s primary home also means changing the child’s school, you will need to explain other advantages about the change.
  • Relationships with siblings and half siblings.  Courts usually do not want to disrupt the child’s home life by significantly reducing contact with siblings or even half-siblings, depending upon the strength of the relationship.  
  • Being a jerk.  Courts are interested in whether or not the parent with whom the child mostly lives is awful to the other parent.  Patterns of withholding contact, short-notice changes in exchange times and locations, refusal to allow phone/Facetime/Skype visits, dominating contact with the other parent by excessive texts, calls and e-mails, using vulgarities in communication with the other parent, and bad mouthing the other parent are among many factors.  Don’t be a jerk.  Don’t act like a jerk if the other parent is a jerk.  
  • Inappropriate parenting.  This is hard to prove, but some people just are not good parents because they over-discipline, don’t set boundaries, ignore their kids, the list goes on.
  • Presence of extended family members.  Courts usually consider the presence of a child’s grandparents, aunts, uncles and so on as a positive.  
  • Child neglect.  The parent who neglects the child (withholds medical care, is a hoarder, brings suspicious characters around the child etc.) faces supervised visitation or, maybe, no visitation.  
  • Child abuse.  The parent who does this faces supervised visitation or no visitation.  The parent who does this to another child in my opinion should not have contact with your child, ever, but not all judges agree in every case.  The parent who violates certain laws as to anyone, especially sexual offenses, may not have even have a right of contact, depending on the crime.

 

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