Missouri

Section 452.300 of the Missouri Statutes sets forth basic information regarding the pleadings required to begin a divorce case in Missouri, and the procedures for filing your Missouri divorce forms. Some of the basic requirements, which are discussed in that section, are summarized as follows:

(a) Papers:

The initial pleading is entitled the “Petition”; the response is entitled the “Answer.” Missouri is a no fault divorce state. This means that the legal basis (grounds) for divorce is irreconcilable differences.

(b) Where to File Your Petition:

Pursuant to § 452.300, the proceeding should be commenced in the county in which either of the parties resides. However, if the proceeding is commenced where the petitioner resides, the court is authorizes to transfer the proceedings to the county in which the respondent resides if:

1. The county in which the respondent resides had been the county in which the children resided during the ninety days immediately preceding the commencement of the proceeding; or
2. The best interest of the children will be served if the proceeding is transferred to the county in which the respondent resides because:
   1. The children and at least one parent have a significant connection with the county; and
   2. There is substantial evidence concerning the present or future care, protection and personal relationships of the children in the county.

1. In any proceeding commenced pursuant to this chapter, the petition, a motion to modify, a motion for a family access order and a motion for contempt shall be verified. The petition in a proceeding for dissolution of marriage shall allege that the marriage is irretrievably broken and that therefore there remains no reasonable likelihood that the marriage can be preserved. The petition in a proceeding for legal separation shall allege that the marriage is not irretrievably broken and that therefore there remains a reasonable likelihood that the marriage can be preserved.
2. The petition in a proceeding for dissolution of marriage or legal separation shall set forth:
   1. The residence of each party, including the county, and the length of residence of each party in this state and in the county of residence;
   2. The date of the marriage and the place at which it is registered;
   3. The date on which the parties separated;
   4. The name, date of birth and address of each child, and the parent with whom each child has primarily resided for the sixty days immediately preceding the filing of the petition for dissolution of marriage or legal separation;
   5. Whether the wife is pregnant;
   6. The Social Security number of the petitioner, respondent and each child;
   7. Any arrangements as to the custody and support of the children and the maintenance of each party; and
   8. The relief sought.
3. Upon the filing of the petition in a proceeding for dissolution of marriage or legal separation, each child shall immediately be subject to the jurisdiction of the court in which the proceeding is commenced, unless a proceeding involving allegations of abuse or neglect of the child is pending in juvenile court. Until permitted by order of the court, neither parent shall remove any child from the jurisdiction of the court or from any parent with whom the child has primarily resided for the sixty days immediately preceding the filing of a petition for dissolution of marriage or legal separation.
4. The mere fact that one parent has actual possession of the child at the time of filing shall not create a preference in favor of such parent in any judicial determination regarding custody of the child.
5. The respondent shall be served in the manner provided by the rules of the supreme court and applicable court rules and, to avoid an interlocutory judgment of default, shall file a verified answer within thirty days of the date of service which shall not only admit or deny the allegations of the petition, but shall also set forth:
   1. The Social Security number of the petitioner, respondent and each child;
   2. Any arrangements as to the custody and support of the child and the maintenance of each party; and
   3. The relief sought.
6. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
7. The petitioner and respondent shall submit a proposed parenting plan, either individually or jointly, within thirty days after service of process or the filing of the entry of appearance, whichever event first occurs of a motion to modify or a petition involving custody or visitation issues. The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children and shall include but not be limited to:
   1. A specific written schedule detailing the custody, visitation and residential time for each child with each party including:
      1. Major holidays stating which holidays a party has each year;
      2. School holidays for school-age children;
      3. The child’s birthday, Mother’s Day and Father’s Day;
      4. Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
      5. The times and places for transfer of the child between the parties in connection with the residential schedule;
      6. A plan for sharing transportation duties associated with the residential schedule;
      7. Appropriate times for telephone access;
      8. Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;
      9. Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;
   2. A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:
      1. Educational decisions and methods of communicating information from the school to both parties;
      2. Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;
      3. Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;
      4. Child care providers, including how such providers will be selected;
      5. Communication procedures including access to telephone numbers as appropriate;
      6. A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;
      7. If a party suggests no shared decision-making, a statement of the reasons for such a request;
   3. How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the supreme court, will be paid including:
      1. The suggested amount of child support to be paid by each party;
      2. The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;
      3. The payment of educational expenses, if any;
      4. The payment of extraordinary expenses of the child, if any;
      5. Child care expenses, if any;
      6. Transportation expenses, if any.
8. If the proposed parenting plans of the parties differ and the parties cannot resolve the differences or if any party fails to file a proposed parenting plan, upon motion of either party and an opportunity for the parties to be heard, the court shall enter a temporary order containing a parenting plan setting forth the arrangements specified in subsection 7 of this section which will remain in effect until further order of the court. The temporary order entered by the court shall not create a preference for the court in its adjudication of final custody, child support or visitation.
9. Within one hundred twenty days after August 28, 1998, the Missouri supreme court shall have in effect guidelines for a parenting plan form which may be used by the parties pursuant to this section in any dissolution of marriage, legal separation or modification proceeding involving issues of custody and visitation relating to the child.
10. The filing of a parenting plan for any child over the age of eighteen for whom custody, visitation, or support is being established or modified by a court of competent jurisdiction is not required. Nothing in this section shall be construed as precluding the filing of a parenting plan upon agreement of the parties or if ordered to do so by the court for any child over the age of eighteen for whom custody, visitation, or support is being established or modified by a court of competent jurisdiction.

By Attorney Marc A. Rapaport

1. What are marital separation and settlement agreements?
   
   
   Answer:
   A Separation Agreement generally refers to an agreement, executed by husband and wife, that memorializes their intention to permanently separate (live separately and apart). It typically includes negotiated provisions pertaining to their respective financial interests and relating to the children of the marriage. Some of the matters that are addressed include distribution of property, alimony/spousal support, child support, custody, and similar issues. The phrase "Separation Agreement" usually refers to an agreement that is executed before there has been a filing for divorce. In contrast, a "Settlement Agreement" usually refers to an agreement executed after there has been a divorce filing. In actuality, the two types of agreements are nearly identical, with the exception that the divorce agreement generally makes reference to the existence of an ongoing divorce action.
   
   
2. Are separation agreements enforceable under Missouri law?
   
   
   Answer:
   Yes. The Missouri Statutes specifically promote separation agreement as a means by which couples can amicably resolve their financial and other issues so as to avoid the extensive cost and time associated with having these issues resolved in court. The Domestic Relations section of the Missouri Statutes provides, in relevant part:

   452.325. Separation agreements authorized, effect of - orders for disposition of property, when - terms of agreement, how enforced. -

   1. To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children.
   2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
   3. If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and maintenance in accordance with the provisions of sections 452.330, 452.335 and 452.340.
   4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
      1. Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
      2. If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
   5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
   6. Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
      
      
3. If we present the agreement to a Missouri court as a part of a divorce case, will a Missouri court inquire about our financial circumstances?
   
   
   Answer:
   Usually not. With the exception of provisions relating to children (e.g. child support) the Courts usually do not undertake an extensive inquiry or investigation regarding underlying financial circumstances. However, courts are allowed to investigate and examine the economic circumstances of the parties to the divorce and other relevant factors in determining conscionability of the settlement agreements. (Dow v. Dow, 732 S.W.2d 906 (Mo.banc)). If your agreement is found to be unfair or does not fully address all of the marital assets or debts, the Court will likely make rulings that can be substantially different from your written agreement.
   
   
4. How can I enforce a separation agreement that was incorporated into a judgment of divorce in Missouri?
   
   
   Answer:
   When a separation agreement has been incorporated into a dissolution decree, it can be enforced in the same manner as any court judgment. Missouri courts have held that where settlement agreements set forth ongoing obligations (for example, that one side will occupy the former marital residence), the parties have fiduciary duties to each other with respect to such obligations.
   
   
5. In the absence of a separation agreement, what is the standard for maintenance/spousal support under Missouri law?
   
   
   Answer:
   In cases in which the parties have not entered into a marital agreement, the court generally looks to whether each party is able to meet his or her "reasonable needs" in assessing whether, and for how long, maintenance is appropriate. The term "reasonable needs" does not necessarily refer to the standard of living during the marriage, although the parties' marital lifestyle is a relevant factor.
   
   
6. Can the parties put in their agreement that their agreement's maintenance provisions are not subject to modification in court?
   
   
   Answer:
   Yes. The Missouri courts have issued several published decisions in which requests for modification of maintenance were denied based on language in the subject agreements that prohibited subsequent modification absent the explicit written agreement of the parties.

By: Marc A. Rapaport, Attorney at Law. All rights are reserved. 2010. This article may not be reprinted without the express written permission of its author and of Empire State Legal Forms, Inc. Marc Rapaport is a divorce attorney with 15 years of experience, and the founder of http://www.RapaportLaw.com a full service divorce law firm, which handles cases throughout the United States, with its main offices in New York’s Empire State Building.