Divorce (Dissolution):

• What is a "no-fault" divorce?
  In Missouri, only "no-fault" divorce is available which means that the spouse suing for divorce does not have to prove that the other spouse did something wrong. To file for a no-fault divorce, one spouse must simply state a reason recognized by the state. All states allow divorces regardless of who is at "fault”. In most states, it's as easy as stating that the couple cannot get along (e.g., "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage"). However, in several states the couple must live apart for a period of months or even years in order to obtain a no-fault divorce.

See the Fault/No-Fault filing options available in all 50 states

• What is involved in starting the process for a divorce or dissolution?
  The first step would be the filing of a properly executed petition with the appropriate court. The court must have what is called subject-matter jurisdiction that would entail satisfying the requirements of residency or domicile within the state and county dictated by the statute. This can be as little as six weeks or as long as three to six months. Without this threshold requirement being met the court would not have the jurisdiction to hear the matter and execute an order or decree of divorce, or dissolution, or like orders terminating the marital state.

• What kind of documents will be needed to put together what the court will need to decide all of the issues involved?
  List of Documents: Address book names, addresses and telephone numbers will help your lawyer prepare subpoenas for documents, depositions and court appearances. Don’t forget mystery numbers, i.e., those without names, or just initials. Identify them with the cross directory. Look for the following professionals and businesses: accountants—personal and business; bankers--personal and business, including trust officers; bookkeepers; computer consultants--they know how and where data is hidden; computer on-line services--obtain passwords to access information; computer message center and voice mail codes; financial planners; friends--those close enough to be trusted with money; insurance agents--including life, annuity, casualty, and key man insurance; lawyers; mailing services--such as Mail Boxes Etc.; mini-storage and office record storage; physicians; stock brokers; telephone answering services; telephone long distance companies; therapists; travel agents--personal and business; Federal and State Tax Returns for past years of the marriage with supporting documentation including all filed schedules for both individual and businesses involved. Relative to the tax returns, look for refunds and/or deficiencies. If you believe that the document produced is a forgery, have your lawyer insist that Form 4506 is signed by your spouse. The IRS will photocopy the actual return filed. Partnership tax returns (Form 1065) look for net operating loss adjustments. Gift and estate tax returns. Has your spouse made or received any gifts? Has s/he inherited any property? Business Records, Financial Statements and Credit Card Invoices are important. Personal Property includes: annuities, antiques, art work, automobiles, planes, boats, china and crystal, coins collectibles, frequent flyer miles, furniture/furnishings, furs, guns, jewelry, rugs, bills of sale (all property over $200). Also locate certificates of title for automobiles, boats, planes, trailers and heavy equipment. Homeowners Insurance scheduled property often states a value for insurance purposes and appraisals contain detailed descriptions of marital property. Note that appraised values may depend on the reason for the appraisal. For example, replacement value appraisals are often inflated while tax appraisals minimize value. Be sure you know the purpose for which the appraisal was prepared. Personal property also includes life insurance policies with information on beneficiaries, cash surrender value, loans against policies, other encumbrances against policies, e.g., using the policy as collateral for a loan. Banking information is also important including savings, checking, and credit union accounts. Note: If your spouse’s name is second on a joint account with a third party, interest income will be reported by that third party. Your spouse will not receive a 1099, and the account will not show on your income tax return. Look at monthly statements (look for payment or debit memo for safe-deposit box rental), passbooks, canceled checks and drafts (front and back) Note: make sure you photocopy the backs of checks, especially those made out to cash, to your spouse or to any unknown third party. Account numbers of secret accounts may appear along with the name of the depository bank. Also, check cashing card, check register, check stubs, cashier checks (carbon or photocopy), cash transactions, certificates of deposit, Children’s Uniform Gift to Minors Act bank records, Christmas club accounts, deposit slips, linked mutual fund and stock brokerage account, loan and credit applications, numbered accounts (often Swiss), passbooks (check to see if there is a loan against it), wire transfers and withdrawals. Look for any suspicious activities, such as repeated withdrawals of sums such as $505, suggesting conversion to travelers checks for $500 plus a 1 percent fee of $5.00. In addition there may be information on securities accounts; securities certificates; stocks and bonds; stock brokerage account statements; lists of securities; mutual fund statements; agreements relating to the account, such as, option trading, etc.; and applications to trade certain securities. Note that if your spouse is a sophisticated investor, he/she may have options or commodity trading ability. Stock brokerages require customers to fill out lengthy questionnaires before opening accounts for certain risky activities, such as options. These questionnaires are a good source of information regarding investment experience and objectives. IRA’s, Keogh’s and SEP-IRA’s Pension, Retirement and Survivor Benefits. Small Business Ownership Records are also important and any information you obtain is helpful in appraising the value of the business, including; buy-sell agreements, key-man, life, and property insurance, casualty insurance, leases, non-compete agreements, financial statements, balance sheet, shareholder equity investments, asset list and depreciation schedules, corporate redemption agreement to purchase stock rights of first refusal, major contracts, pension and profit sharing budgets, projections, marketing literature, loan applications. Employment Benefits: look for any sign that your spouse has deferred income, commissions, bonuses, royalties or has had salary converted into a non-cash benefit which would include the following: clothing allowance, company car, credit union statements, contracts of employment, employee benefits brochures, pension benefit statement, plan booklet, and amendments actuarial report on the pension plan, expense accounts, expense reimbursements, housing/relocation programs, in-kind compensation, meals, medical insurance, life insurance, loan programs, pay stubs (show certain benefits not part of taxable income), pension, profit sharing, stock purchase plan, travel and entertainment allowance. Litigation: If your spouse is suing, what’s the value of his or her lawsuit? If your spouse is being sued, do you have any exposure? Are there any prior divorce proceedings--will a first spouse’s right supersede yours? Court papers relating to pending matter(s) including statement of damages (to ascertain the value of the case. Look for Court records of final adjudication and Liens placed on assets. Loan Documents and Applications, Financial statements tend to show inflated asset values, income and net worth. Collection agency letters, home equity loans/lines of credit, mortgages/ home and business notes, passbook loans, and payment schedules. Look for recent payment of loans to family members, business associates, and friends. Also, look for accelerated payments; your spouse wants to show he has no money for you. Also, promissory notes both payable and receivable. Miscellaneous Income and Assets: royalties, severance pay, workers` compensation, annuities, rental income, prizes and awards, trust and estate income, capital gains, gift certificates, unemployment compensation, pension, veteran’s benefits, social security, lottery or gaming winnings, life insurance income or proceeds, notes payable to your spouse, partnership agreements etc. Basically, any document or information that can track money or property and its character should be obtained, preserved and turned over to your attorney.

• Can a divorce action be stopped by one of the spouses?
  A no-fault divorce can't be stopped by a spouse because objecting to the other spouse's petition for divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse could potentially stop a fault divorce by either convincing the court that he/she was not at fault or by using any of the following defenses. 1. Condonation - implied approval of another's activities by treating the person as though the offense were never committed. Example: if one spouse committed adultery and the other never objected to it, the offending spouse could say that the other spouse condoned the behavior. 2. Connivance - setting up a situation so that the other person commits a wrongdoing. Example: inviting the offending spouse's lover over then leaving them alone together for an extended period of time would be considered conniving an adulterous behavior. 3. Provocation - inciting of another to do a certain act. Example: if one spouse sues for divorce on the grounds of cruelty, and it is later proven that he/she provoked the other into committing the act, the petition for divorce can stopped. 4. Collusion - secret agreement or cooperation between the spouses designed to deceive the judge. Example: a couple doesn't want to wait through the separation period required to file a no-fault divorce, so one manufactures a "fault" with the other and files for a fault divorce.

• How long does the process take to obtain a divorce or dissolution?
  The time period involved is dependent upon the law of the state and could be as short as six weeks and can extend to six months depending upon the jurisdiction involved. If there are contested issues involved, it can be several years before the court may resolve all of the issues involved. The decree of divorce has full effect as soon as the judge signs it.

• Does one have to go to court to obtain a divorce?
  A court of law is the only way in which one can obtain a divorce decree, dissolution, legal separation, nullity, or other form of terminating a marriage. Each jurisdiction has established its own body of law by which this procedure is accomplished to give it full legal effect. The various states have enacted statutes that govern the procedures by which this is done. Other than the termination of the marital estate the court also has jurisdiction to resolve the other issues which are intertwined in the existing marriage which include but are not limited to, custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

Divorce and Bankruptcy:

• Does my divorce decree protect me if my ex-spouse has filed for bankruptcy and she has listed me as a co-signer on a Schedule D?
  If you are contractually bound with your ex-spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under it determined to be non-dischargeable by the bankruptcy court or in state court. If you find out that your ex-spouse has filed for bankruptcy, you should seek legal advice to find out your possible obligations.

• My Ex Has Threatened To File Bankruptcy. What Effect Does Bankruptcy Have On Child Support?
  Filing for bankruptcy protection does not allow your ex to discharge past due child support obligations. Any back payments owed for child support cannot be included as a debt and cannot be discharged in a bankruptcy proceeding.

However, the filing of a bankruptcy petition automatically stops collection activities on a support order. Since there are legal procedures that must be followed in order to lift the stay regarding the payments, it is crucial to retain an attorney who has expertise in bankruptcies.

If you or someone you know in Missouri is in need of Family Law Legal Services, please contact Family Lawyer Alan W. Cohen at (314)863-8800 or via the contact form in right column for prompt and considerate attention.

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