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Divorce and Family Law FAQs

Family Law Attorney Richard Ralls Answers Your Questions

How long do I have to live in Missouri or Kansas before filing for divorce?

Missouri requires that one spouse be a resident of the state for at least 90 days before filing. Kansas has a 60-day residency requirement.

How much does it cost to file in Missouri or Kansas?

Filing fees vary depending on the state and county, currently ranging from $100 to $195. All filing fees are paid to the clerk of the court at the time of filing.

How long will it take before I can get my divorce?

The time it takes to process a divorce depends on whether the issues are readily solvable, and if so, how quickly. Missouri has a 30-day and Kansas a 60-day minimum time period that the case needs to be on file before the divorce can be finalized. Plan on two to three months as a minimum waiting period in an amicable, uncontested divorce. Expect a longer timeframe if there are issues that are not resolved, such as disputed custody, support or asset valuation and property division. Contested cases can take months to prepare and get scheduled on the court’s calendar for trial.

How will my spouse get notice of the filing?

Every person who is subject to a court action is entitled to receive official notice, or service, as to the proceeding. The notice will include a copy of the pleadings that have been filed, along with a summons advising the person that they have been served and that they have a specified amount of time to file a formal written response with the court. Service is generally performed by the sheriff or by private process server. We often use a private process server because that allows us to coordinate specifically when and where to serve the other party, and a private process server can be more flexible in serving the summons and pleadings than the Sheriff’s Department.

Is there an advantage to my filing first?

In some situations, yes. Although the person who files first is the one who pays the filing fee, the first to file generally establishes the state and county where the case will be handled. Additionally, the person who files first will be the party who presents his or her evidence first—and that may matter if you prefer that the judge hears your version of the case first at trial. In Kansas, there are situations where the first to file can obtain Temporary Orders on the date of filing which may be advantageous. Work with your lawyer on this decision.

Do I need my spouse’s consent in order to seek a divorce?

No. Consent or permission from your spouse is not required.

What is the difference between a “contested” and an “uncontested” matter?

An uncontested matter generally means that the parties have reached an agreement on all significant issues, leading to a written settlement agreement which is signed by both parties and intended to be binding. The agreement is then submitted to the court for approval along with a proposed Decree wherein the court grants the divorce. A contested matter means the parties cannot mutually solve all issues. Contested matters may require extensive trial preparation and a trial if the parties cannot resolve their differences. At trial the court will hear all the evidence and the Judge will decide all issues submitted.

How will the court handle the child custody and support issues?

The rules as to how separating parents are to raise their children following a divorce will be set out in a Parenting Plan that will be ordered by the court. A Parenting Plan covers legal custody, residency, parenting times, including holidays and summers, and financial issues (child support, health insurance on the child, work-related day care expense, uninsured medical bills, the dependency tax exemption, etc.). The court must find that the Parenting Plan is in the “best interests” of the child or children. The court must first consider legal custody of the child, i.e., the decision-making process and communication between the parents in raising the child to adulthood. The idea is for mom and dad together to co-parent the child if joint legal custody is ordered. Legal custody has nothing to do with the parenting time of either parent. Parenting orders typically specify which residence is the child’s home base and when each parent physically spends time with his or her child.

I have a child but I have never been married to the mother. She has a child support order against me but she will not let me spend time with my child. How can I get visitation with my child?

A parent is entitled to parenting time with his or her child, barring unusual circumstances. An administrative child support order that is obtained by the parent with whom the child primarily resides will not give you enforceable parenting time. To obtain court-ordered parenting time you need to file a separate action with the court whereby paternity is established or confirmed. The court then assumes power (jurisdiction) over the parents to issue a Parenting Plan as to custody, parenting times, holidays and summers, financial issues, etc. Never-married parents can have court-ordered, enforceable parenting time with their children just as divorced parents do, but a separate court case needs to be filed.

Can child support or parenting arrangements be modified later?

Yes. While property and debt divisions are determined with finality in a divorce proceeding, the court retains jurisdiction to review and modify child support, legal custody and parenting time until the child is no longer eligible to receive child support or be under the court’s control – in other words, emancipated.

What is a right of first refusal in a parenting plan?

The term refers to a parent who typically needs a babysitter or child caregiver for a brief period of time, say, 4 – 5 hours. The right of first refusal means that the parent needing third-party caregiving must first contact the other parent to see if that parent is available to care for the child before contacting a family member or hiring a babysitter. This provision is sometimes incorporated into a Parenting Plan to give the other parent extra parenting time opportunities.

Can I get an order giving me grandparent rights?

Yes. In certain situations the court can award a grandparent his or her own time with the grandchild. Typically the courts look to whether or not there is an already existing, established relationship between grandparent and grandchild, and the court must determine that creating independent grandparent time is in the child’s best interests. In considering whether to seek court-ordered grandparent rights, be aware that the court may give great deference to the wishes of the child’s parents in that decision.

Can my new spouse legally adopt my child?

Yes. Step-parent adoptions can occur when the other parent has died or has had his or her parental rights terminated. Step-parent adoptions do have legal implications if granted, so consult an attorney before pursuing a step-parent adoption.

After my divorce can I later relocate to another part of the country with my children?

A relocation is a dramatic, life-altering decision which greatly affects one parent’s relationship with his or her child—so it is not taken lightly. Both Missouri and Kansas have specific statutes governing relocations, with both states requiring that the relocating parent give ample and proper written notice to the other parent well before the intended move. Verbal notice or an email-type notice will not be sufficient. For example, Missouri requires that a parent who wants to relocate must provide 60 days’ notice to the other parent by certified mail of:

  • The location of the intended new residence, including the city, specific address and mailing address, if known,
  • Contact information, including telephone number, if known,
  • The date of the intended move or proposed relocation,
  • A brief statement of the specific reason(s) for the proposed relocation of the children, and
  • A proposal for a revised schedule of custody or visitation with the children.

If proper notice is not given the court can hold the relocating parent in contempt. Once notice is given the other parent has 30 days to object to the move and consider seeking a change of custody. If the other parent does not agree, an objection must be filed with the court and a hearing will be ordered. Likewise, Kansas requires that the relocating, custodial parent must provide the other parent with 30 days’ written notice, sent by restricted mail, return receipt requested. As in Missouri, the other parent can object to the move and ask for a modification of the custody orders and the parenting plan. Failure to provide proper relocation notification can lead to being held in contempt of court.

How will the court handle the division of property in my divorce?

The first question considered is whether there is premarital or non-marital property that is not part of the marital estate and, therefore, not subject to division as marital property. The property that is deemed to be marital property consists of the assets and debts of the marriage and that is what is divided by the court or by agreement. At trial the court is obligated to make an equitable division of assets and debts. That may be more than or less than fifty per cent; it is what the court or the parties determine to be fair and equitable—not necessarily exactly equal.

If we were divorced in another state and neither of us lives there now, can we transfer our case?

Yes, the case can be registered for further proceedings where at least one of the parties now resides.

Am I a candidate for alimony?

Now referred to as maintenance, spousal support can be awarded in certain situations. The immediate question is the need for spousal support. In Missouri the party seeking maintenance has to make a threshold showing that he or she lacks sufficient property to provide for his or her needs, or is unable to support himself or herself through employment. Other factors in determining whether a spouse receives maintenance in Missouri or Kansas include the duration of the marriage, differences in incomes, and the assignment of any income-producing assets in the divorce.

Can we settle our case without a trial?

Yes, and most cases do settle. Settlement avoids the risks of trial and minimizes legal expense. Typically the court will require that the parties try to resolve the case before setting a trial date. Mediation is commonly ordered on parenting issues. However, where there are one or more issues that cannot be resolved, such as child custody, the court will hear the evidence and decide the issues at trial.

How will the retirement benefits be handled?

In most cases the retirement benefits of either party that are deemed to be marital property will be divided by court order in the divorce proceedings. An order known as a Qualified Domestic Relations Order (QDRO) can be entered by the court to direct a retirement plan administrator to divide a retirement account as specifically set out in the court’s order, so that a portion of one person’s retirement account becomes the other spouse’s retirement fund.

What will the court do as to our house?

Typically the court will either award the marital residence to one party, with a provision that the other party receives his or her share of the net equity through a refinancing of the mortgage, or the court will order the house to be sold and the net sale proceeds divided between the parties.

Can I appeal the judge’s ruling if we have a trial?

Yes, but be aware that the trial court is given considerable discretion in hearing the evidence and making its decisions. Oftentimes a successful appeal depends on there being an error by the judge, not just a decision that you didn’t like.

Do I need an attorney?

An attorney can be invaluable in guiding you through the process and in advising you of options. Sometimes divorcing parties try to work out an agreement on their own, only to later learn that they gave up significant custodial, parenting rights or property rights, because they did not know the law. Other times the paperwork that they prepared is not in a proper form that a judge will approve. An experienced attorney who practices family law will know what paperwork and pleadings are needed to process the matter to completion and advise you as to your legal rights.