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