Missouri Divorce FAQ

Basic Questions

Do I really need to hire an attorney?

There is no legal requirement that you hire an attorney. It is strongly recommended that you hire an experienced divorce attorney to represent you. If you choose to represent yourself, you will certainly be at a disadvantage in settlement negotiations and in the courtroom.

If you have children or if you have significant earnings or assets, you should consult with an attorney to make sure that your interests are protected.There is no legal requirement that you hire an attorney. It is strongly recommended that you hire an experienced divorce attorney to represent you. If you choose to represent yourself, you will certainly be at a disadvantage in settlement negotiations and in the courtroom.

If you have children or if you have significant earnings or assets, you should consult with an attorney to make sure that your interests are protected.

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What is a divorce going to cost me? Can I afford it?

In getting a divorce, you will most likely have to pay for attorney’s fees and court filing fees. Depending on the facts of your case, the court may order you to pay maintenance (or alimony), child support, or other money to your spouse to divide your property, possibly including your spouse’s attorney’s fees. It is certainly in your best interest to hire an experienced divorce attorney to make sure that your rights are asserted and your assets are protected in the long-term.

One of the issues that can affect the cost of a divorce is whether you and your spouse are agreeable to issues concerning the custody of your children, child support, maintenance, and the division of the property.

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What if my spouse does not want the divorce?

If your spouse does not want a divorce and denies that the marriage is irretrievably broken, you may still obtain a divorce.  You will need to show one of the following:

  • That your spouse committed adultery and that you cannot live with your spouse;
  • That your spouse has behaved in such a way that you cannot live with your spouse;
  • That your spouse has abandoned you for at least six continuous months before the divorce was filed;
  • That you and your spouse have agreed to live separately and have done so for at least 12 continuous months before the divorce was filed; or
  • That you and your spouse have lived separately for at least 24 months before the divorce was filed.

If the court does not find that the marriage is irretrievably broken and grants a legal separation, then either party can file a Motion to Convert the legal separation (judgment of legal separation) into a divorce (judgment of dissolution) no earlier than 90 days from the date that the judgment of legal separation was entered by the court.

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What are the grounds for divorce in Missouri?

Missouri is a no-fault state. It is not necessary to show that either one of the parties was at fault. The statutory basis for a divorce in Missouri is that there is no reasonable likelihood that the marriage can be preserved and, therefore, the marriage is irretrievably broken.

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Children, Support, and Property

What if my ex tries to move the kids out state?

If your divorce has not been filed and your wife tries to move the children to another state, you should consult with an attorney about filing for divorce immediately to make sure that the court in Missouri will have jurisdiction over the children.

Most states have a residency requirement before a parent can file for divorce. The party must be a resident of the state for a specified period of time, before they can file for divorce. In Missouri, a parent would have to reside in this state for at least 90 days immediately before filing for divorce.

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When can I modify custody in Missouri?

In order for the court to modify the terms of a custody order, there must be a continuing and substantial change in the circumstances of the child or the child’s custodian and the modification is necessary to serve the best interests of the child. It is important to understand that there must be new facts that have come up since the prior order, or there must be facts that were not known by the court at the time of the prior order.

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Do grandparents have custody and visitation rights?

Missouri child custody law permits grandparent visitation only in limited situations. There is no guaranteed right for a grandparent to have visitation with a grandchild. The court may grant reasonable visitation rights to grandparents under the following circumstances:

  • The parents of the child have filed for divorce. Grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights;
  • One parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights;
  • The child has resided in the grandparent’s home for at least 6 months within the 24-month period immediately preceding the filing of the petition for grandparent rights;
  • The grandparent has been unreasonably denied visitation with the child for more than 90 days, unless the natural parents are legally married to each other and are living together with the child. In that case, the grandparent may not file for visitation;
  • The child is adopted by a stepparent, another grandparent or other blood relative.

The court will grant grandparent visitation only if it is in the grandchild’s best interest. The court is required to determine whether visitation by the grandparent would be in the child’s best interest.

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When can my child decide which parent to live with?

In Missouri child custody issues, one of the factors the court must consider is the wishes of the child. Courts will allow the child to give testimony on his/her preference if the court determines that is appropriate.

The courts have indicated that starting around age 11, a child can express his/her opinion about where he/she would like to live primarily. The judge will decide how much weight to give to a child’s opinion. The older a child gets, the more weight his/her opinion is given in deciding who should have custody of the child.

The question of whether your child should testify should be discussed with your attorney.

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Can a parent refuse to allow visitation if child support is not paid?

No. A parent may not refuse to allow or cut back the other parent’s visitation with the children simply because the other parent has not paid his/her child support. Payment of child support and visitation are legally independent matters. Both parents have the right to have a meaningful relationship with their children.

It should also be pointed out that if one parent refuses to allow the other parent visitation, that parent may not use that as a reason to withhold or stop paying child support. Both of these actions are subject to contempt charges separately.

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How is Missouri child custody decided? Who will get custody of our child?

Missouri custody laws state the court is required to determine what is in the best interests of the children. There are two components to the custody of a child that the court must determine. The court must decide which parent will have, or how both parents will share, the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child. This is referred to as legal custody.

The court must also decide where the child will have and how the parents will share the physical time with the child. This component is referred to as physical custody.

Missouri custody laws provide that the court is required to consider all relevant factors including:

  • The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
  • The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
  • The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
  • Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
  • The child’s adjustment to the child’s home, school, and community;
  • The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
  • The intention of either parent to relocate the principal residence of the child; and
  • The wishes of a child as to the child’s custodian.
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Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

Yes. The court’s order granting the divorce must address custody and support of the minor children, maintenance (or alimony), and the division of the spouses’ property.

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Can I get maintenance or will I have to provide maintenance to my spouse?

The court may grant maintenance if it finds that the spouse seeking maintenance does not have sufficient property to provide for his/her reasonable needs and is unable to support himself/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

There is no pre-determined formula to determine the amount or length of maintenance. The court will consider relevant factors including the length of the marriage, the financial resources of the parties, the conduct of the parties during the marriage and the ability of the other spouse to meet their own needs. Maintenance is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse.

Generally, an award of maintenance is either for a specified term or modifiable.

If the parties decide to settle without a trial, they can settle on a term of maintenance – a specific dollar amount with a specific date that it stops. If the parties have a trial, the judge may only award modifiable maintenance – which means that the spouse that is ordered to pay maintenance would have to come back to court in the future to terminate or reduce his/her monthly maintenance obligation. Maintenance will terminate if either spouse dies or if the party receiving maintenance remarries.

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Divorce Procedure

How is a divorce granted? Will I have to go to court?

Only a judge may grant a divorce.

If you and your spouse do not agree on all of the issues in your case, you will have to go to court to have the judge decide those matters.  Most judges prefer that each party attend any and all settlement/pre-trial conferences set on their case as judges are of the opinion that the parties should be involved in their case and show interest.

There will be opportunities for a partial or complete resolution to settle all of the issues in your case without formal court proceedings. These may include mediation, informal negotiations, and settlement conferences in court, all of which require your appearance.

Depending on the complexity of the issues that cannot be resolved and the amount of evidence that is presented to the court, a trial can last a few hours or several days or even longer.

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How and where is a divorce complaint filed?

A verified petition for dissolution of marriage may be filed at the circuit clerk’s office in the county courthouse where either you or your spouse resides.

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After I file for divorce, do I have to continue to live in Missouri?

There is no legal requirement that you continue to live in Missouri after you file for divorce. You should understand that you would need to remain involved your case and you may need to make court appearances.

If you have minor children, moving to another state while your divorce is pending can make the court’s custody and visitation decisions much more complicated.

After your divorce is granted, if you wish to move with your children to another state, you will have to give written notice to your former spouse. Your former spouse will have the opportunity to file a motion with the court to prevent you from relocating the children and the court will determine what is in the children’s best interests.

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When can I file for divorce in Missouri?

You must be a resident of Missouri for at least 90 days before you can file for divorce.  If children are involved and they do not have the necessary “ties” with the State of Missouri, then the opposing party may contest the divorce filing in Missouri if the filing party has only resided in the state for the requisite 90 days.

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Can I get an annulment in Missouri?

An annulment is a decision by the court that the marriage was not legal from the beginning. Annulments are granted only in limited and unusual situations.

Annulments may be granted for marriages that are between persons who are related to each other, between persons who lack the mental capacity to enter into a contract, between persons of the same sex, or where one spouse was still legally married to another person.

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What typically happens if I go to court to obtain my divorce myself?

It is strongly discouraged in the vast majority of cases. Without an attorney, you will be at a significant disadvantage. You will be held to the same standards as an attorney, and you will be expected to know and comply with all of the statutes and case law applicable to divorce, the filing requirements, property laws, rules of evidence, and the court’s procedures and rules. You will not be given any special treatment or assistance in the courtroom.

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