Let’s get real. Most people only go through the divorce process once or twice in their entire lives. That means it is easy to make mistakes and fall into a few divorce traps. Here are 3 common divorce traps – and how to avoid them.Continue reading
Couples are sometimes in the predicament of both wanting a faster and easier divorce process than litigation, but not knowing how to get past the issues that are preventing them from filing an uncontested divorce. Here are some ways to get to a settlement:
Hire a Mediator
Mediation is a process to help couples work together to solve the issues in their case. It is typically considerably less expensive than litigation (even if a case has already been filed) simply because less time is involved overall. In a litigated case, each party is paying their attorney to draft documents, negotiate, collect written and testimonial evidence, and perform other tasks necessary to prepare the case for a judge to decide all of the issues. This can mean subpoenas, depositions, written discovery — all formalities of the legal system involved with trial evidence.
Mediation on the other hand, involves far less attorney time which reduces the costs substantially. If the case is not yet filed, the parties can pay a single mediator to help them reach an agreement. This usually happens over 1-4 sessions. If an agreement is reached, an attorney can be hired to codify the agreement and file it with the court as an uncontested case. Visit http://stlouisfamilymediation.com for more information about how a family mediator can help.
Try Divorce Counseling
Most people think of counseling as being only for couples trying to stay together or individuals after the divorce is over. However, there are many counselors who work with couples throughout the process from pre-divorce through dissolution, co-parenting and beyond. Sometimes the underlying emotional issues prevent spouses from being able to think clearly and rationally about moving forward. Angry spouses often cannot settle the case yet. A counselor may help you find a path towards a more peaceful solution.
Work on Your Communication Skills
It may seem like the time to up your couples communication game was during the marriage and not at the end of it, but it might just be what you need to get the job done. Frequently squabbling spouses talk right past each other and can’t really hear one another, even when they agree. When you are engaged in discussions with your spouse about the divorce, try slowing down. Too often “listening” really means just waiting for your turn to talk, which is unproductive. Great negotiators listen more than they talk and acknowledge the other side’s position and perspective. Listening is at the heart of winning communication. Try reading Getting to Yes or Never Split the Difference.
Here ate two tools to help you and your spouse talk about the nuts and bolts of your divorce. Use these to make sure you have talked about all of the major topics that will need to be decided in order to get divorced.
The first in the packet is a checklist. If you and your spouse can check off each box on the list, you are in great shape to obtain an uncontested divorce. That means that you have settled your divorce before it is filed, and you can ask the judge to sign the divorce decree and approve your marital settlement agreement after the minimum 30 days has passed. This is typically the fastest, least stressful, and most affordable way to get divorced.
The second is a worksheet. This is designed to help you and your spouse think through in more detail all of the topics in the checklist. Too often, spouses think they have reached a quick agreement, only to be frustrated later when things fall apart because something important was missed.
As you work through the list, keep in mind that even if you are not able to reach an agreement, talking about all of these items will help you identify where you are stuck and where you agree, which brings you one step closer to the resolution of your marriage. Our website has a lot of useful information to help you decipher anything that is not familiar. Be sure to read the post on what is and isn’t marital property before you start. If you have lots of questions as you work through this, that is a good sign you could use the help of a professional attorney or family mediator.
When the parties in a divorce case have reached an agreement on how to end their marriage, a marital settlement agreement is drafted that reflects those terms along with a proposed judgement and parenting plan for the court to review and approve.
In some cases, particularly if neither party is represented by an attorney, the Court will conduct a brief hearing to review the settlement and enter judgment.
The hearing is typically brief, less than a half an hour. Both parties are sworn in and then asked to confirm the terms of their agreement and that they would like the judge to enter the judgement and approve the settlement agreement.
One advantage of hiring an uncontested divorce attorney, is that most courts will skip the settlement hearing as long as at least one party is represented and both parties submit an affidavit to the court asking for the judge to conclude the case.
Many people are familiar with the concept of Alimony. But what exactly is spousal maintenance? Is it the same as alimony?
Alimony is no longer awarded in Missouri and has not been for quite some time. The old concept of alimony was based on concepts anchored in traditional gender roles and a fault-based system of divorce.
Since 1975, Missouri has been a “no-fault” state. This means that either spouse can ask for the marriage to be ended not for any specific reason but simply because the marriage is broken and can no longer be saved. The alimony framework was also eliminated.
Today, if either spouse lacks the ability to meet their reasonable needs and cannot work, and the other spouse is able to pay for some of those needs, the court can award spousal maintenance. This award can either be for a specific period of time or ongoing.
How is Maintenance Determined?
RSMo § 452.335 says that the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself 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.
So in sum, it is not enough for a spouse to simply be out of work, the spouse must have needs that cannot be met and there must be a good reason why the spouse cannot be expected to support themselves through employment. If these conditions are satisfied, then the question is how much should be awarded.
If a Spouse Needs Maintenance, How Much Should an Award Be?
Unlike some states, like Illinois, for example, there is no formula to determine how much maintenance a spouse should receive. Missouri law requires a court to consider the following when determining how much a maintenance award should be:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
As you can see from the above, a court has a lot of leeway to use its judgment. Based on the factors above, it is worth nothing that a need is not a guarantee of an award. Sometimes one spouse has a need and can qualify for spousal maintenance, but the other spouse lacks the resources to pay maintenance. In those circumstances a court may find that the appropriate award is zero.
In an uncontested divorce, the spouses can agree on the amount and duration of an award and simply include this in their settlement agreement. It is important to specify the duration unless it should continue indefinitely, and any termination events. For example, one spouse might receive maintenance “for 5 years or until remarriage, whichever comes first.”
When couples are considering ending their marriage, one of the questions that often comes up is how long will the divorce take? A related question is, how fast can I get divorced in Missouri?
The minimum amount of time it takes to get divorced in Missouri is 30 days. Missouri law requires that at least one party has been a resident of Missouri for 90 days, and 30 days must pass between the filing of the divorce petition and final judgment. This is essentially a cooling off period to prevent rash decisions.
As we all know, what the rule says and what actually happens can be two different things. Can you get divorced faster than 30 days in Missouri? No. Can it take longer than 30 days? Absolutely. Many cases take 6 months to a year, and some even longer. How quickly or slowly your divorce happens depends on a few things.
Are there contested issues in the case?
The absolute fastest way to get divorced is if the parties agree to the terms of the divorce before it is ever filed. This is commonly referred to as an “Uncontested Divorce,” (although the most accurate way to describe it is actually a divorce by agreement). In an uncontested divorce, the parties work out the terms of their agreement either by talking to each other directly or with the help of a marriage and family therapist or family mediator. The key is to fully resolve the issues in detail so that a final settlement agreement is signed and ready to file from the same moment the divorce is filed with the court. Here is a handy checklist of the issues that need to be resolved to have an uncontested divorce. Having all your issues negotiated and agreed on before the case is filed means that your divorce can be signed by a judge as soon as the 30 has passed. If your case is filed as a contested matter, the more issues there are the longer the case is likely to take before it is concluded. Litigants in a contested case are often surprised and frustrated by repetitive seeming court dates and waiting as the lawyers conduct discovery and try to resolve the issues.
Do you have the right attorney helping you?
A good family attorney knows how to shepherd the divorce, particularly an uncontested one, through the process as quickly as possible. That said, not all family attorneys practice the same way or with the same focus. While any legitimate family attorney should be able to competently handle an uncontested divorce, some will be able to do it faster than others. For example, a lawyer who focuses on hotly contested divorce cases may not have time to work on your case right away because they are busy with court appearances for existing cases. Look for an attorney that focuses on amicable divorces, including uncontested divorce, as they are more likely to be prepared to handle your case efficiently.
What court and judge is your case in front of?
The Missouri county your divorce is filed in, and which judge the case is assigned to, can have a big impact on how fast your case is resolved, even if it is uncontested. Some courts and judges simply operate faster than others. A seasoned family attorney will know how the courts in your area operate so you can be realistic. This is one reason (of many) it is a good idea to hire an attorney to assist you, even with a simple uncontested case.
Will the court want a hearing?
Assuming your case is filed as uncontested, you may have to have a hearing before the judge will sign off on your settlement agreement. This can be a county to county policy. Some courts just won’t conclude the case without the parties coming in to court to for a final hearing. However, most counties will permit the parties to submit a sworn written statement asking the court to review and approve the settlement agreement and enter a divorce judgment. Even if a judge would normally permit the matter to conclude without a hearing, there are some triggers that might cause one anyway. If neither party is represented by an attorney there will probably be a final hearing. If the agreement seems very one-sided or otherwise unusual, such as if one parent is completely cut out of the children’s lives, the judge may also want the matter set for a hearing. If a hearing needs to be conducted, this may add several weeks depending on the court’s schedule.
These are just some of the factors that can influence the time it takes to conclude a divorce in Missouri. It is worthwhile to work with an uncontested divorce attorney to make sure your case goes quickly and smoothly.
The cost for an uncontested divorce in Missouri can range from $600 to $1,500 and up, depending on the kind of law firm you hire and the particulars of your case.
One thing that can make a big difference is the fee structure of the firm you choose and the attorney. Traditional law firms bill hourly. Senior partners can bill at $300 an hour and beyond. If you choose a lawyer with a large hourly rate you can expect to pay more.
On the other hand, there are some family law firms that offer flat-fee pricing for matters that are predictable in scope, like uncontested divorces. Family law firms that specialize in uncontested divorces tend to be more efficient and can produce a high-quality product in less time for a lower flat fee.
A common divorce question is, “What is marital property in Missouri?” The easy answer is that anything a couple accumulates during their marriage is considered marital property. This includes both assets (stuff) and liabilities (stuff you owe). Here is the important part most people miss: it doesn’t matter who bought it, who earned the money that bought it, whose name is on the title, or whose name is on the debt. Really.
So what isn’t marital property?
Not all property is marital. The property and debts each spouse owns prior to the marriage remain separate property in most circumstances. Anything gifted to or bequeathed to (inherited by) one spouse alone is also considered separate property.
Are those labels set in stone?
No. Separate property can be converted to marital property in a variety of ways. For example, if one spouse inherited a house during the marriage, but then adds the other spouse’s name to the deed, uses marital funds to make major repairs and the mortgage payments, and the couple lives in the house, then there is a good argument that the spouse has converted the house from separate property to marital property. These circumstances are very fact specific. If you have a questionable item, you should get help from a lawyer to determine the correct classification of the property.
The short answer to the question “What does ‘uncontested divorce’ mean?” is that a husband and wife agree that they no longer want to be married to each other and agree on exactly how they wanted to conclude their marriage before they file any documents with the Court asking it to dissolve their marriage.
Sound simple? Well, that’s because it is. It can be a very easy way to get divorced. Uncontested divorce is by far the easiest and cheapest way to get divorced in Missouri.
Here is what needs to be decided between the divorcing spouses:
- That the marriage is irretrievably broken.
- How to divide the marital property including personal property, household goods, real property, retirement plans etc.
- Whether one or both parents will make major decisions on behalf of any children.
- A parenting schedule that lays out when each parent has custody of the children.
- If one parent will need to pay child support to the other, the amount and method of payment. (To learn how child support is calculated in Missouri, click here).
- If one spouse needs Maintenance (Alimony) and for how long.
For most couples with simple assets and no children this should be easy to negotiate if both spouses are interested in saving time and money in the divorce process.
Uncontested divorce is also a really good option for couples with children and simple assets who are willing to work together to make a parenting plan.