Family Law

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The Common contestable Areas of Family Law are (10)

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1. Marriage
2. Annulment
3. Legal Separation
4. Dissolution of Marriage (including the classification, valuation, and division of property)
5. Maintenance; and
6. Child Support
7. Child Custody
8. Adoption
9. Cohabitation; and
10. Unmarried Parents

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MARRIAGE
(8 Requirements)

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1. Mental Capacity "an ability to understand what one is getting into"
2. Neither Party Can Be Married to Someone Else (Bigamy is Void) There is a presumption that the current marriage is valid. The person attacking the validity of a marriage has the burden of proof.
3. Age Requirement -- 18 without parental consent, between 15 and 17 with parental consent, a minor under 15 must obtain Judicial Consent.
4. Unrelated Parties
5. Knowing and Voluntary Consent
6. Parties of Different Sexes
7. Procedural Requirements Met (License)
8. Marriage Solemnized

I. Common Law Marriage Prohibited
II. Conflict of Laws -- "the law of the state where the marriage contract was entered into will determine its validity."

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MARRIAGE
(Solemnized)

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1. Clergy of recognized church
2. Judge of court of record

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MARRIAGE
(Conflict of Laws)

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one state will recognize a marriage that has been entered into in another state.
TWO EXCEPTIONS:
1. If the state being asked to recognize marriage has a strong public policy against that type of marriage, then the marriage may not be recognized.
2. When there is a "specific statutory prohibition"in the state being asked to recognize the marriage.

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ANNULMENT

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Definition: the process that is used to have a marriage declared invalid.
"Voidable Marriages" are valid until challenged in must be annulled in order to be dissolved.
"Void Marriages" have no legal status and do not require legal proceeding to invalidate.

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ANNULMENT
(Distinctions)

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1. ANYONE can attack a void marriage.
2. Only the Parties can challenge a voidable marriage.
3. Property/Support Rights/Children -- rights under the divorce statutes are not available to individuals seeking an annulment. However, any children of the purported marriage are considered legitimate.

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RIGHTS and OBLIGATIONS in the ONGOING FAMILY

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1. Support -- each spouse has a duty to support the other. It can be enforced through the doctrine of necessaries were a third party seeks reimbursement from one spouse for a necessary service provided to the other spouse. The third party must first proceed against the assets of the benefited spouse, then against marital assets, and finally against the separate assets of the other spouse.

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RIGHTS & OBLIGATIONS in the ONGOING FAMILY

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2. Evidentiary Issues
"Marital Communications"
"Testimonial Disqualification"
"Tort Actions" -- Alienation of Affection & Criminal Conversation are no longer recognized in Missouri. There is no inter-spousal immunity from tort suits in Missouri.

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LEGAL SEPARATION

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Definition: a legal proceeding that determines property rights and the custody of children. You can define the permanent status of the relationship the parties working be a temporary situation at the parties eventually obtain a divorce.

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LEGAL SEPARATION
(Two Requirements)

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1. One party must request legal separation AND
2. The court must find the marriage is not irreversible broken.

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DISSOLUTION OF MARRIAGE
(Irretrievably Broken)

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Missouri is a "modified no-fault state" because it has both no-fault grounds as well as fault base grounds.

If both parties agree that the marriage is irretrievably broken, the dissolution will be granted.

If one of the parties denies that the marriages your irretrievably broken, the petitioner (the person wanting a divorce) must show that the marriage is irretrievably broken by proving one of the following grounds:
1. Adultery;
2. Unreasonable Behavior
3. Abandonment for SIX MONTHS;
4. Voluntary (mutually agreed-upon) separation from more than one year; or
5. Involuntary Separation (not consensual) for more than two years.

Front 12

DISSOLUTION OF MARRIAGE
(Jurisdiction)

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Jurisdictional Rules for the Dissolution
1. Subject Matter Jurisdiction -- the court has subject matter jurisdiction over the divorce or status of the marriage itself if:
i) there is a valid marriage
ii) the petitioner has at least 90 days of residency in Missouri
iii) the petition has been on file for 30 days, and
iv) all the pleadings have been verified by affidavit.
2. Personal Jurisdiction
i) in rem jurisdiction -- by statute
ii) in personam jurisdiction-- to enter orders regarding child support, maintenance or property located outside of Missouri, the court must have in personam jurisdiction. Obtained by:personal service in the state; personal service out of the state on a Missouri resident; or jurisdiction using the "long arm statute" if the individual is no longer a resident of Missouri.

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DISSOLUTION OF MARRIAGE
(Jurisdiction -- MISSOURI CAVEAT)

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the court cannot enter "personal orders i.e., relating to the payment of money (child support or maintenance), unless the respondent has been personally served. Service by publication or service by certified or registered mail will not give the court in personam jurisdiction.

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DISSOLUTION OF MARRIAGE
(Recognition of Decrees)

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a divorce decree is entitled to full faith and credit.

The jurisdictional requirement for full faith and credit purposes for granting a divorce is not just residency, the domicile, which is "residency + intent to remain."

The Best basis for attacking a divorce decree entered into by another jurisdiction is to attack the requirement of domicile.

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TEMPORARY ORDERS
(Sometimes Made in Divorce Cases)

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examples of where a temporary order can be made include:
1. Child support and maintenance
2. Child custody
3. TROs
4. Attorney's Fees and Costs

Front 16

DISSOLUTION OF MARRIAGE
(Division of Property at Dissolution**)
VERY IMPORTANT

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You will need to know how property is:
1. Classified
2. Valued
3. Divided

Front 17

DISSOLUTION OF MARRIAGE
(Division of Property at Dissolution**)

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CLASSIFICATION of PROPERTY
(Marital or Separate)
In Missouri, the court MUST divide marital property
in Missouri, the court MAY NOT divide separate property.

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CLASSIFICATION OF PROPERTY
(Property Acquired before Marriage)

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property acquired before marriage is separate property!
Exception: property acquired in contemplation of marriage may be considered marital property. E.g. A home purchased for the couple's residence.

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CLASSIFICATION OF PROPERTY
(Property Acquired After Marriage)

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all property acquired after miss this PRESUMED to be marital property and the person who is challenging the marital classification has the burden of proof and he must show it was acquired in one of the following ways:
1. Gift or Inheritance -- a gift to both or one of the spouses?
2. Exchange for Separate Property -- property acquired in exchange for separate property retains its classification as separate property. Tracing, however, is required.

Front 20

CLASSIFICATION OF PROPERTY
(Property Acquired After Legal Separation)

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property acquired after a decree of legal separation is classified as separate property. Property acquired after a de facto separation is still presumed to be marital Intel there is a decree of legal separation. This will toll the acquisition of marital property.

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CLASSIFICATION OF PROPERTY
(Property Excluded by Agreement)

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property that is excluded by a valid agreement his separate property and is not subject to division by the court. (Discuss the validity of the agreement)

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CLASSIFICATION OF PROPERTY
(Increase in Value of Separate Property)

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for example, Husband owned a house prior to his marriage to Wife. During the course of the marriage, the house increases in value. Is the increase in value marital or separate?DEPENDS

Increase in value due to economic factors are classified as separate.

Increase in value due to marital contributions are marital.

*Missouri Nuance: income from separate property is marital. An increase in value of separately owned stock due to a stock split to separate. A dividend paid on that stock is income and therefore marital.

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CLASSIFICATION OF PROPERTY
(Property which is Acquired Both Before and After the Marriage)

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"Source of Funds Rule"
husband-and-wife purchase a car for $20,000 during their marriage. They pay for the car with $10,000 that the husband received as an inheritance from his aunt's estate and $10,000 from funds earned by the husband during the marriage. At the time of dissolution the car is valued at $10,000. How should the car be classified?
50% value separate -- 50% marital funds.

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CLASSIFICATION OF PROPERTY
(Mortgage Payments)

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When considering contributions made to reducing mortgage, only those that reduce the principal are used in calculation. Interest payments on the loan or taxes on the property are not considered a contribution.
Example: at the time husband-and-wife married wife owns a home worth $40,000 that is subject to a $30,000 mortgage. During the marriage, the marital partnership pays interest and principal on the mortgage, reducing the amount owed on the mortgage to $10,000. At the time of dissolution, the home is valued at $85,000. How much is separate and how much is marital?
1. Determine the wife's separate property contributions (how much money that she contributed to the acquisition of the property) $10,000
2. Determine the marital contributions (i.e. how much money has the marital partnership contributed to the acquisition of property) $20,000 contribution
3. As the wife's contribution to the marital partnership's contribution to get the total contribution. Life's $10,000 plus $20,000 equals $30,000 total.
4. Det

Front 25

TRANSMUTATION

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property can change its nature or character (from separate property to marital and vice versa) and this process is called "transmutation"

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TRANSMUTATION
(Most Common Methods)

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1. Retitling
2. Commingling

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SPECIAL PROPERTY CONSIDERATIONS

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1. Pensions
a. Retirement Pensions
b. Division of Pensions
c. Disability Pensions
d. Military Pensions
2. Educational Degrees
3. Goodwill
4. Personal Injury Awards
5. Marital Debts
6. Omitted Property
7. Social Security Benefits/Teacher Pension Benefits

Front 28

DIVISION/DISTRIBUTION of MARITAL PROPERTY

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he just division is required. This does not mean a 50-50 division. The court will look at a number of factors to determine how to divide the marital property. See next card.

Front 29

DIVISION/DISTRIBUTION of MARITAL PROPERTY
(Factors)

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1. Economic circumstances (need)
2. Contributions, including homemaker services
3. Value of separate property
4. Fault
5. Custodial arrangement for the children

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DIVISION/DISTRIBUTION of MARITAL PROPERTY
(Orders Authorized)

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1. The sale of the marital property IF it CANNOT be otherwise divided;
2. Offsetting cash payments; or
3. The imposition of liens when installment payments are ordered.

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DIVISION/DISTRIBUTION of MARITAL PROPERTY
(Valuation of Property)

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the value of property is determined at the time of dissolution decree.

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MAINTENANCE

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in order to establish maintenance, individual requesting maintenance must establish that he or she is unable to meet reasonable needs through appropriate employment.

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MAINTENANCE
(Factors Court is going to Consider)

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1. Financial resources of each party;
2. Employability;
3. Standard of Living (generally used only in long-term marriages);
4. Duration of marriage;
5. Fault

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MAINTENANCE
(2 Types)

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1. Permanent Maintenance (used to be called "alimony")
2. Durational Maintenance(for a specific duration. It has an ending date and it is modifiable only during. It is being paid.)
3. Lump-sum Maintenance (in Missouri the Supreme Court has held that the statute does not authorize the granting of a lump-sum maintenance award)

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MAINTENANCE
(Termination)

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determination of maintenance occurs on either:
1. The death of either party;
2. The remarriage of the person receiving the maintenance (obligee); or
3. By agreement of the parties.

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MAINTENANCE
(Modification of Maintenance)

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Maintenance, if it can be modified, is modified by substantial and continuing changes in circumstances that make the original order unreasonable. The decree must be whether or not it is modifiable.
The STANDARD for the modification of maintenance and for child support is the same substantial and continuing changed circumstances that make the original order unreasonable.

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MAINTENANCE
(Modification Circumstances)

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the court will consider and are usually filed because of:
1. An increase in the obligor's income
2. Increase in the obligee's income; or
3. Decrease in the obligor's or obligee's income.

Front 38

CHILD SUPPORT

Back 38

both parents are obligated to support the children, regardless of marital status.
The factors that are considered in setting the child support amount are:
1) the needs of the child, including any special needs a child might have;
2) the resources for parents; and
3) the standard of living the child would have enjoyed if the marriage remained intact.

Front 39

CHILD SUPPORT
(Guidelines)

Back 39

the guidelines set the child support amount based on the parents income.
The amount set in the guidelines is the presumptively valid amount that the court will order, unless one of the parents asks the court to order a different amount on the basis that the presumed amount is unjust or inappropriate.
The custodial parent share of the child support is deemed to be paid directly to the child. The only person who is actually writing a check for the child support the noncustodial parent.
If the parents share time with the child, the courts will take that into consideration in making the award.
Even if parents spend 50% of the time with the child, this does not mean that the child support is not going to be paid because child support is based on the parents income as well as how much time he or she spends with the child.
If the income of the parents is in excess of guideline amounts, then the Supreme Court has ruled the presumptive amount is the top amount provided by the guidelines.
The guidelines take into cons

Front 40

CHILD SUPPORT
(Health Insurance)

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1. Health insurance is also considered in child support awards and may be ordered.
2. Failure to maintain corporate health insurance makes the obligor liable for costs
3. It is considered in the guidelines
4. A qualified medical Child support order may also be considered (QMCSO) (QDRO)

Front 41

CHILD SUPPORT
(Educational Expenses)

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1. Educational expenses are not included in the presumed guideline.
2. If the custodial parent wishes to have the other parent pay the private school tuition for college expenses of the child, she must argue that the presumptive amount is unjust and inappropriate.
3. If the court orders the educational expenses, including private school tuition and college to be paid, those amounts become part of the child support award.
4. The parties agree to provide educational expenses in an agreement, those educational expenses must be specific in order to be enforced as a judgment.

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CHILD SUPPORT
(Termination)

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Child Support is terminated when:
1. The child or the noncustodial parent who is paying the support dies; or
2. The child becomes emancipated. Emancipation occurs when the minor either;
a. Marries
b. Joins the active military;
c. Becomes self-supporting;
3. The child turns 18 years old;
a. There are some fairly SIGNIFICANT EXCEPTIONS to this rule, however. Such as if the child becomes disabled before his 18th birthday. The child may not have completed high school prior to turning 18. The child is enrolled in college or a postsecondary program, the parents are obligated to continue to support the child until the child either graduates or reaches the age of 21, whichever occurs first.

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CHILD SUPPORT
(Abatement of Child Support)

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1. Abatement is a temporary cessation of a child support
2. This occurs (on a temporary basis) when there is a;
a. Denial of visitation
b. Informal transfer of custody for more than 30 days