A client came to see me for an initial consultation about a divorce the other morning, and before he had finished his first sip of coffee, he was assuring me he had a good handle on Missouri divorce law. “I know this is a 50/50 state,” he advised me. “Judges have to divide the property equally, and I’m entitled to have the kids in my custody half of the time. So let’s write up the settlement papers now and not waste my money and your time.”
“Not so fast,” I cautioned him. “It’s not quite so simple.”
“Okay, then,” he said. “Tell me where I’m wrong.”
In most divorce cases involving children, the couple is dealing with three or four main issues: division of property and debt, parenting (known in the law as “child custody”), child support, and maintenance (what most people think of as “alimony”).
We’ll leave the discussion of those last two issues, spousal support and child support, for another post, but let’s look at the laws surrounding property division and parenting.
Before dividing the property and debt a divorce court must exclude from the division the couple’s “separate property,” property owned before the marriage or acquired through inheritance or gift. The remaining “marital” property and debt must be divided “in such proportions as the court deems just.”
A “just” division (often called an “equitable” division) doesn’t necessarily mean an equal division. Although courts frequently begin with an assumption the division should be equal, the court must look at such factors as misconduct (e.g., hiding assets, spending money on a girl/boyfriend, excessive gambling, drug use, abusive behavior), and will sometimes adjust the division to take such bad behavior into account.
When it comes to parenting (I prefer this word because “custody” describes ownership and control, concepts far removed from a parent’s true role), a 2023 change in Missouri’s law has made equal time for both parents a “rebuttable presumption.” That means that, although the court must begin its thinking with an equal sharing of parenting time, that presumption may be “rebutted,” i.e., overcome, if the court is convinced that equal time is not in the children’s best interest.
What all this means is that where a parent believes that sharing the children’s care equally with the other parent would be detrimental to the children’s well-being, they will have the opportunity to show the court why this arrangement would be a problem.
Divorce laws provide guidance on how courts act, but they don’t provide absolute answers. Or to put it another way, cookie cutters are great for making all cookies come out the same, but they don’t work for divorcing families. Just as every family is unique, every case requires a close look at all of the facts to come up with an outcome tailored to a family’s particular needs.
Paule, Camazine & Blumenthal’s family law attorneys will help you come up with a resolution of your divorce issues that respects your family’s unique qualities.
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