Sunday, April 6, 2014

A Missouri divorce in a nutshell

A Missouri Divorce in a Nutshell

Whether you are proceeding with a contested divorce or an uncontested divorce (through Linnenbringer Law, naturally), you are bound to hear terms and come across court-related documents that you are not familiar with. This is nothing to be embarrassed about, unless you're a divorce attorney, I suppose, and I'm pretty sure I've met one or two of them who didn't seem to understand much about divorce law either.

So, without further ado, let's get into it. You, the client, hires your attorney, leading to the following exchange:

Your New Divorce Attorney:
Thank you for hiring me and for paying my retainer. Please remember that it is essential that you keep your trust account replenished and full at all times. We need to get this case on file quickly, set some PDL motions, and get some discovery motions out. Eventually we'll have the information we need to develop an informed, reasonable settlement proposal. If we cannot reach a settlement, however, please remember that a trial will be required.

Loose Translation:
This is probably going to be pretty expensive. I'll be billing you by the hour, like nearly all attorneys do, so make sure each time I look to your trust account, there is money there to pay myself with. If you don't pay, I can withdraw from your case.

Getting your case on file requires, of course, that your case be filed with the courts. What does this consist of? As the Petitioner (the person filing the case / bringing the action), you will file, at a minimum, three pleadings: your Petition for Dissolution of Marriage, a Statement of Income and Expense, and a Statement of Property and Debt.

Petition for Dissolution of Marriage

The Petition for Dissolution of Marriage basically lays out the "facts" of the case, as according to the Petitioner, and tells the court what the Petitioner wants (i.e., a request for maintenance, joint custody of the kids, attorney fees, etc).

Statement of Income and Expense

The Statement of Income and Expense provides a run down of how much money you make and what your anticipated post-dissolution expenses are. If your spouse is looking for maintenance, or you think they will be, you will want to make sure to not leave out any of your expenses. Why? Because part of what the court looks at when deciding whether maintenance is appropriate is the ability of the obligor to pay. In other words, if your Statement of Income and Expense shows that you have $2,000 left over at the end of each month, your spouse's attorney will probably have success arguing that you have an ability to pay some maintenance.

On the other hand, the court will factor in a party's need for maintenance when that party requests such. So, if you are requesting maintenance and your Statement of Income and Expense shows you can easily pay all of your monthly expenses with the income you currently have coming in, your spouse's attorney may be able to argue that you do not need maintenance as you can cover your reasonable expenses without financial assistance from your soon-to-be-ex spouse.

The proper course and safest bet, of course, is to be thorough and 100% truthful when it comes to filling out your Statement of Income and Expense.

Statement of Property and Debt

The Statement of Property and Debt outlines what the parties have, in terms of assets (homes, cars, investment accounts, retirement accounts, furniture, other stuff) and liabilities (who they owe money to). The Property and Debt Statement will also have the party's estimate on what each asset is worth and how much is owed for each liability.

For right or wrong, a party's Property and Debt Statement often "favors" them. You may see a party over-estimate the value of assets they don't want, or at least don't see themselves taking, in the divorce. Conversely, the party who anticipates receiving the property could undervalue the asset on their Statement of Property and Debt. Attorneys see this quite often, and generally remedy these disputes in value with an appraisal of the item in question.

Proposed Parenting Plan

If there are children involved in the divorce, the Petitioner will file not only the Petition for Dissolution, Statement of Income and Expense, and Statement of Property and Debt, but also a proposed parenting plan. This proposed parenting plan does what it sounds like - it proposes a custody and support plan. The Petitioner may choose to file a parenting plan that is truly reasonable and fair, or they may propose their "best case" parenting plan - i.e., a plan that, in their view, "favors" the Petitioner - as to not give away negotiating points with their initial filing. Only the Petitioner and his or her attorney can choose the best course of action when it comes to how to write up a proposed parenting plan, of course.

Service of Process

With the filing of the Petition for Dissolution and the accompanying pleadings outlined above, the case has begun. Nothing can really happen, however, until the Respondent (your spouse) is notified. This notification, in a legal sense, is accomplished by having your spouse served by a sheriff or process server (note that in a cooperative situation (uncontested divorce), the spouse will not be served, but will sign a Waiver of Service).

Respondent's Answer

Once your spouse is served, he or she is on the clock. If they don't file an Answer or hire an attorney within 30-days of being served, they are in danger of being in default. Once in default, your attorney can run into court and set the case for a default hearing. Assuming your spouse continues to ignore the fact that he or she was served and does not hire an attorney or file an answer, you will be granted your divorce at the default hearing.

Getting divorced through a default situation is less than ideal. You get your divorce, true, but there are often post-dissolution duties (i.e., refinancing jointly titled loans, removing a party from an asset they do not take in the divorce, etc) that are much, much easier if both spouse's are around and cooperating.

The more likely situation, of course, is that your spouse hires an attorney after they are served. At that point, your spouse's attorney will file his or her entry of appearance and, if they need additional time to file an Answer, they will request it (and generally get it) when they file their entry of appearance.

Your spouse's Answer will, well, answer the claims you made in your petition. If your Petition, in paragraph 7, says "Petitioner is in need of maintenance," for example, your spouse's answer will probably say something to the tune of, "Respondent denies the allegations made in paragraph 7 of Petitioner's petition." Fancy ways of saying, "I need maintenance" and your spouse responding, "no you don't."

With their answer, your spouse will probably file a Counter or Cross Petition, which will look a lot like your Petition for Dissolution of Marriage, although it will have your spouse's "facts" and requests, as opposed to yours. Your spouse will also, just like you, file a Statement of Income and Expense, Statement of Property and Debt, and, if children are involved, a proposed Parenting Plan. Once each side has filed their initial pleadings, the case is off and running. If you've ever been through a contested divorce, you know this is a misnomer, as the case rarely feels like it's running anywhere. Crawling, maybe, but usually not running.

PDLs

Now, as for the PDL your attorney mentioned at the onset of this posting… PDL is short for, Pendente Lite, which is Latin for "pending litigation." These motions allow a party to request the court order something during the pendency of the case. Maintenance and child support PDLs are commonplace in cases where financial assistant is necessary for a party to maintain the status quo. For example, if the breadwinning spouse files for divorce and then moves out of the home, the party staying at home with the kids would probably file a PDL requesting child support and maintenance. Assuming these PDL motion were granted, the breadwinning spouse would then be obligated to pay child support and maintenance to the stay-at-home parent pending the litigation of the case. This helps maintains the status quo and brings a little consistency to what would be an even more difficult time for the stay-at-home spouse, in the event these PDL motions did not exist.

Discovery

Sometime during these initial months, your attorney and your attorney's spouse will file some discovery motions. These motions will request information from your employer regarding your pay, retirement accounts, etc., as well as requests for past bank records, statements regarding your debts, and stuff like that. Appraisals will be requested on the assets in which there are disputes in value. Depositions and written interrogatories can also be used to get answers to particular questions your attorney or your spouse's attorney have for the opposing party.

Wrapping Up

Eventually, your attorney and your spouse's attorney will have all the information they need, hopefully, to guide you to an appropriate settlement offer. If the two sides cannot agree on what is appropriate, the case proceeds to a trial, where the Judge will decide what is appropriate after the two party's and their attorney's present the evidence in a formal court setting.


Thanks for reading,
Gerald W. Linnenbringer

Thursday, April 3, 2014

Maintenance in Missouri Rundown

Maintenance in Missouri Rundown

What is maintenance?

Maintenance is another word for alimony, which is simply post-divorce spousal support.  Payments made from one ex-spouse to another for the support of the receiving spouse.

What are the types of maintenance?

Missouri has two types of maintenance obligations, modifiable and non-modifiable.  Modifiable maintenance, just like it sounds, can be modified by the court at a later date if one party files a Motion to Modify Maintenance.  A party attempting to modify a maintenance obligation will have to show a "continuing and substantial change in circumstances" that makes the terms of the original arrangement unreasonable and therefore, a change is warranted.

For example, let's say Husband and Wife divorce.  Husband is a professional soccer player and is ordered to pay $1,000 per month in modifiable maintenance. Two years after the divorce, Husband is attacked by a pack of feral bulldogs, not unlike the beast pictured here:


Husband loses both of his legs in the attack but manages to escape.  The first thing Husband would want do, after applying pressure to his wounds, of course, is to file a motion to modify that maintenance obligation.  His motion to modify would be based on the continuing and substantial change that he is no longer able to practice his craft and earn the income the original maintenance obligation was based off of.

A non-modifiable maintenance cannot be modified by the court at a later date.  It's more like a payment obligation that you'd see for a traditional loan:  Husband pays to Wife a sum of $500 per month for a term of 5 years, or something along those lines.  For non-modifiable maintenance, the payor is agreeing to pay whatever terms are agreed upon.  If the obligation is for $500 per month for 5 years, the paying party better plan on paying $500 per month for 5 years.  A non-modifiable maintenance obligation can be terminated by law, of course, like in the event that the party receiving maintenance re-marries.

How is maintenance handled come tax time?

The party who receives maintenance will claim it as income and pay taxes on it.  Naturally then, maintenance payments are a tax deduction for the party paying them.


You can read more exhilarating commentary about maintenance in Missouri over on my uncontested divorce F.A.Q. page.

Thanks for reading
Gerald W. Linnenbringer

Wednesday, February 5, 2014

Missouri Uncontested Divorce Timeline [infographic]

Missouri Uncontested Divorce Timeline [Infographic]


Missouri Uncontested Divorce Timeline


I hope this uncontested divorce infographic is as fun to read as it was to make.

See my webpage's divorce FAQ for more Missouri uncontested divorce information.

Thanks for reading

Thursday, January 30, 2014

Can one lawyer handle an uncontested divorce?

Can one lawyer handle your uncontested divorce?

Those looking for an uncontested divorce are generally price conscious people, so they often ask if their spouse will be needing to hire an attorney or, alternatively, whether the uncontested divorce lawyer that they hire will be representing both parties.  The answer to both of those question is no.

As to the first question, no, the Respondent (spouse of the client) does not need to hire an attorney in order to get your uncontested divorce done.  I can't ever tell a Respondent not to hire an attorney, of course, as that is their right.  However, I do not consider a divorce uncontested - at least not uncontested to the degree that allows a low, flat fee - if another attorney is involved.  

As to the second question, no, your attorney does not represent both parties in the divorce, as that would be unethical and against the lawyer's code of professional conduct.  

In my opinion, a good uncontested divorce lawyer, while not representing the Respondent, can put all of the parties' minds at ease by explaining the scope of representation involved in an uncontested divorce case.  In my practice, uncontested divorces involve a limited scope of representation.  That scope involves preparing the paperwork pursuant to the agreement reached between the client and their spouse, and pointing out where the parties need to address an issue or clarify something.  Never am I going beyond that scope and providing legal insight or guidance as to how my client can "win" or get one over on the non-represented party.  That would not be ethical nor fair nor good for the reputation of my business, honestly.  If a client is looking to slip a line in the settlement or parenting plan that I know is not agreed upon but may go unnoticed by the non-represented party, I simply decline representation.  

Uncontested divorces require a certain degree of trust by both parties, and certainly more from the Respondent than the client.  I understand this and do my best to make sure the unrepresented party - while not receiving any advice, legal or otherwise, from me - knows that I am representing Petitioner (but, on a limited scope basis, as explained above) and that they understand his or her right to get an attorney if they wish.

So yes, one lawyer can handle your uncontested divorce and, as my previous entry indicates, often without the need to ever step foot in court.  Feel free to call or email me to get your uncontested divorce started.

Thanks for reading

Tuesday, December 31, 2013

Cost of divorce in Missouri: Contested vs. Uncontested (or Non-Contested)

How much will your divorce cost?

The answer to this question depends mostly on how much is in dispute.  Here's a rundown of those costs - contested vs. uncontested

Costs of a contested divorce in Missouri

1.  Hire your attorney by paying a retainer.  Retainer amounts will be in the thousands, maybe $2,500 on up depending on the attorney.

2.  Hopefully your retainer, which your attorney will be billing against with their hourly work, will at least get you to the case being filed.  If so, your next expense will be the filing fee.  This varies, court to court, but will generally be in the $150-200 range.

3.  Once filed, your spouse will need to be served.  If your spouse is aware of the impending divorce, he or she may go hire an attorney, who will likely contact your attorney and tell him or her that service is not necessary, and that they will accept service on your spouse's behalf.  If not, and you have to proceed with service, you'll either pay the sheriff (usually around $50) to give it a shot or, if the situation calls for a bit more effort (i.e., spouse may be hard to find or is evading service), you'll probably need to hire a process server.  Process servers will vary in cost a bit and will charge for how much time locating and serving your spouse takes.  Count on at least $75-100 here.

4.  Now that your spouse is served (or has hired an attorney that has accepted service on your spouse's behalf), your case, in a way, finally gets moving.  It may not move quickly, but it is moving.  At this stage you'll mostly incur attorney fees.  As your attorney works on your case, the retainer you originally deposited will be billed against until it is gone.  At that point, you have to fill it back up so your attorney has a trust account full of funds to pay themselves with as they work on your case.  Other miscellaneous expenses will include paying for a court reporter, in the event depositions are necessary, and for any investigators that are required to properly prepare your case.

5.  If the custody of your kids is at issue, the court may appoint at Guardian ad Litem (otherwise known as a GAL) who will be involved throughout the rest of the process.  GALs represent the interests of the children in the divorce.  These are attorneys and bill by the hour as well.  So, yes, their hourly fees will be your responsibility.  If you have a court date that takes 2 hours, you'll pay your attorney for 2 hours worth of work and the GAL for an hour or so of their work (depending on how the Judge divvies up the GALs billable hours between the parties).

6.  After a few months (hopefully), but probably closer to 8 months to a year, your case will start to come to a close.  At this point, you will probably have had to refill the trust account a few times, and those miscellaneous expenses, although quite possibly necessary, have begun to add up.  If settlement talks have been unsuccessful to date, your case will be set for trial.  At that point, your attorney may give you the "this is how much a trial will cost vs. this is how much it will cost to settle the case on terms your spouse will agree with" talk.  It will be your choice to make, whether to proceed to trial or settle, but hopefully your attorney can give you an idea of what the Judge will do in the event of a trial and you can make your decision based on that info.

7.  You're divorced and have spent a good amount of cash.  How much?  Go Google "cost of divorce" and see what average figures you see.... $15,000, $20,000, some sites use figures as high as $100,000. Pretty expensive.

Costs of an Uncontested divorce in Missouri

1.  An uncontested divorce requires that you and your spouse have reached an agreement on all issues in your divorce - child custody and support, if applicable, and division of property and debt.  Maintenance/alimony, payment of attorney fees, and payment of court costs all must agreed upon for the case to be truly uncontested.  Using Linnenbringer Law for your uncontested divorce will cost you, generally, under $1,000 in attorney fees.

2.  No service of process, as your spouse will cooperatively waive service, eliminating that expense and speeding up the process as well.  You will have the filing fee, which as explained above, is about $150-200, depending on the court your case is filed in.  St. Louis County's filing fee is $140 for divorces, whether contested or uncontested.

3.  Your case is filed and at the end of the mandatory waiting period, your case is submitted to the Judge for finalizing.  No extra expenses, no hidden fees, that's that.

Contested cases sometimes cannot be avoided, and when they cannot, an experienced, trust-worthy family law attorney is crucial, regardless of the expense associated with hiring one.  However, many cases do not have to proceed that way, and really shouldn't.  Why should you and your spouse each spend $5,000 or more fighting over assets and debt that you may be able to divide with a level-headed conversation?  If at all possible, it's certainly a talk worth having with your soon to be ex-spouse, in my opinion.


Thank you for reading, happy new year, and please feel free to contact me for more information.


Gerald W. Linnenbringer, Missouri Uncontested Divorce Attorney


GWL@LinnenbringerLaw.com
www.LinnenbringerLaw.com

Sunday, November 10, 2013

Will you need to appear in court for an uncontested divorce?

Court Appearance Required for an Uncontested Divorce?

In many Missouri courts an uncontested divorce can be filed and, after the 30-day mandatory waiting period ends, submitted to the court for finalizing without a party ever appearing in court.  This assumes, of course, that at least one party has retained an uncontested divorce attorney to handle their case.

For a Judgment for Dissolution to be entered in Missouri, there have to be certain legal findings.  For example, the court must find that the marriage of the parties is irretrievably broken, that at least one party has lived in Missouri for 90 days prior to the filing of the Petition for Dissolution, that the Wife is not currently pregnant, among some other things.

In order to make these findings, the court needs evidence.  This evidence can delivered through testimony, for example, or documents, or a number of other methods.  When the issues are not in dispute - i.e., in an uncontested case - the parties can agree to the issues surrounding the case, and admit through a written, sworn affidavit all of the facts that the court needs to make the findings required to order a dissolution of the parties' marriage.

The affidavit then, in essence, replaces a parties in-court testimony.  Instead of your attorney putting you on the stand and asking, "isn't it true you have lived in Missouri for 90 days prior to the filing of the petition for dissolution . . . isn't it true you and your spouse were married on such-and-such date . . . isn't it true your marriage is registered in whatever county . . . etc," you can simply sign an affidavit admitting to these facts and answering these questions.  Submitting the case on affidavit promotes judicial efficiency and allows the parties to avoid the hassle and, as some feel, the intimidation and nervousness that comes with being sworn in, put on the stand, and delivering testimony.

If you have any other questions regarding Missouri uncontested divorce, please visit my page at www.linnenbringerlaw.com or email me (GWL@LinnenbringerLaw.com).


Thank you for reading. Please feel free to contact me for more information.


Gerald W. Linnenbringer, Missouri Uncontested Divorce Attorney


GWL@LinnenbringerLaw.com
www.LinnenbringerLaw.com


Saturday, October 26, 2013

Divorce process in Missouri: Uncontested and Contested Cases

I'm asked what the divorce process is in Missouri all of the time.  Like all other things divorce, the answer to this question is very different depending on whether the divorce is uncontested or contested.

1.  Getting started
Whether contested or uncontested, your case will begin with you providing information to your lawyer and making a payment.  The information needed to draft your paperwork will include demographic info - names, dates of birth, addresses, social security numbers, etc. - and a rundown of your property and debt, and income and expense.  If your case is uncontested, you will also need to be able to provide your attorney with the agreed-upon disposition of your property and debt.  If your case is contested, your attorney will likely want to know what your proposed/ideal distribution of the property and debt would be at the conclusion of the case.

When it comes to the contested-uncontested distinction, things really start looking and feeling different when it's time to pay.  If your case is contested, you'll be depositing a retainer and signing an agreement to make additional payments once that retainer is exhausted.  Many attorneys also use the retainer/billable hours for uncontested cases.  Honestly, I don't think this is necessary (or right, for that matter).  As an attorney experienced in handling uncontested divorces, I know how much work will be required from the case based on the information the client provides.  For this reason, I can provide a flat-fee quote for attorney fees.  This way the client knows exactly how much they'll pay for their divorce.

2.  Drafting of Pleadings
Once your attorney has the information (and payment, of course), he or she gets started on your paperwork.  Whether contested or uncontested, your case will require initial filings to get things rolling.  These filings include a Petition for Dissolution, a Statement of Income and Expense, and a Statement of Assets and Liabilities.  There are also a few coversheets that must be completed and filed with your case, but you can let your attorney worry about those.  If your case is contested, you'll see them on your bill, I'm sure.

3.  Case is filed, now what?
Once filed, things differ a little, contested vs. uncontested.  In an uncontested case, your spouse should waive service of process, which serves to, as it sounds like, waive the necessity of being served by the sheriff or a process server.  At this point the 30-day mandatory waiting period starts ticking away and you're on the way to your case being concluded.

In a contested case, the attorney will likely request a summons be issued so your spouse can be properly served.   It differs court to court, of course, but it generally takes a week or two after the case is filed to receive the summons.  When your attorney receives the summons, he or she forwards it on to their process server for service on the spouse.

Once the spouse is properly served, he or she has 30-days to hire an attorney to file an Answer to the Petition for Dissolution or, alternatively, your spouse can file an Answer pro se (without an attorney).  If the spouse fails to act - whether by filing their own Answer or hiring an attorney to do so - he or she is in default and your attorney can head up to court and request a default hearing date.  Assuming the spouse continues to ignore the proceedings, you'll be divorced at that default hearing.

The more likely situation, of course, is that your spouse will be served, he or she will go hire their own attorney, and then the case starts the slow crawl towards completion.  Once two attorneys are involved, expect discovery motions, requests for temporary maintenance, custody, support, etc, and all sorts of other things that will (hopefully) go towards resolving your case in a way that is favorable to you and that will (definitely) cost you some cash in attorney fees.

4.  Respondent Served / Waived Service, 30-days waiting period is up...
In an uncontested case, your attorney can get your case submitted to the Judge for review immediately upon the tolling of the 30-day waiting period.  This final submission to the Judge will include a Judgment of Dissolution, Marital Settlement Agreement (disposing of property and debt), and, if children are involved, a Parenting Plan.  If the particular court your case is filed in allows for it, your case will probably be submitted on Affidavits, which will allow a Judgment to be entered without the necessity of a court appearance.

If your case is contested, you won't be paying much attention to the 30-day waiting period, really, as your case will undoubtedly take much, much longer than this anyway.  You'll plod along through motion hearings, settlement conferences, and so on and so forth.  Each step in the process will have fees associated with it, of course.

I would guess that the average contested case takes 6 months to a year, but that's just based on the cases I've handled and what I see on the dockets.  Many cases take longer than a year, but most Judges prefer a more expedited conclusion and will pressure the attorneys to resolve the case or set it for trial.  Why do cases often take this long?  Discovery, uncooperative spouses or unreasonable expectations, your attorney has a couple kids in private school and tuition is expensive (a joke, of course...), or a myriad of other issues that can pop up through the divorce process.

5.  You're divorced
Once the Judge signs the dissolution judgment - whether through a quick submission by affidavit or after months of hearings and a trial - you're divorced.  At this point, the contested vs. uncontested distinction doesn't mean much.  You now have a Judgment that requires each spouse to follow the terms laid out in the Settlement Agreement and Parenting Plan.  If an ex-spouse does not comply with the Judgment, the aggrieved ex-spouse has the right to file a contempt motion to compel the non-compliant ex-spouse to follow the terms of the dissolution.  This can be get expensive too, of course.

**********************

As you can see, a contested case can take a long time and can be very expensive.  An uncontested case can be completed quickly and at a reasonable expense, but that does not mean you should not hire an attorney that is experienced in handling these matters.  I focus my practice on handling uncontested divorces as quickly as possible all while making sure that the agreements and parenting plans filed in your case address any potential post-dissolution conflicts.  As an uncontested divorce attorney, my goal is that after your divorce is finalized, you never have to call me again (no offense), because your settlement agreement and parenting plan have clear guidelines as to how any and all post-dissolution contingencies should be resolved.

Thank you for reading. Please feel free to contact me for more information.


Gerald W. Linnenbringer, Missouri Uncontested Divorce Attorney


GWL@LinnenbringerLaw.com
www.LinnenbringerLaw.com