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