Missouri Family and Divorce Lawyer Blog

Case Review - Maintenance, 401(k), and Attorney Fees

After a 27 year marriage the parties separated and filed for divorce. The wife had been primarily a stay at-home mother and housekeeper, had a 9th grade education, GED, and no computer or clerical training or other work-related training. The husband was making $3900 per month at the time of the trial. Prior to the separation the husband had an extramarital affair and then for a few months subsequent to the separation the new girlfriend lived with the husband. The parties entered into a separation agreement. In the agreement, the husband took all of the marital debt and the parties divided all of their marital property except the husband's 401(f) retirement account. They further did not agree on wife's request for maintenance (formerly called alimony) or attorney fees. The trial court gave the wife maintenance in the amount of $550 per month, attorney fees for both the trial and for the appeal that occurred, and gave her 25% of the equity of the 401(f). The husband appealed these items.

The appellate court upheld the trial court's judgment on the maintenance, the division of the 401(k) retirement account and attorney fees. It found that even though the husband assumed all or almost all of the marital debt, the trial court was not precluded from awarding maintenance to the wife. The trial court properly considered the wife's reasonable monthly living expenses, her projected income for the future, the husband's ability to pay maintenance, and the amount and how the debt had been incurred by the parties. The appellate court also upheld the division of the 401(k). It looked at the division of the marital property (husband received 59% of the property and wife received 41%)and debt and the husband's affair before the parties separated. The appellate court agreed with the trial court that the majority of the debt that husband assumed was incurred after the separation by the husband alone.

The law in Missouri allows for a court to award attorney fees to a party in a dissolution. If a trial court does award attorney fees and it is appealed, the appellate court treats the award as presumptively correct and will only reverse if it finds that the trial court abused its discretion. It did not find abuse of discretion in this case. Here the trial court considered the husband's greater ability to pay and his conduct during the marriage and afterwards and found the award of attorney fees to the wife appropriate.

Source: Russum v. Russum, WD65741 & WD65968, Missouri Court of Appeals, Western District, February 20, 2007

Proposed Legislation - Child Custody

More legislation is being proposed by Senator Koster in the area of family law.  This new bill, SB 495 (identical to HB 470) will repeal sections in Chapter 452 and enact others in lieu thereof.  The new statutes will be known as the "Uniform Child Custody Jurisdiction and Enforcement Act" and will replace the current law known as the "Uniform Child Custody Jurisdiction Act".   The new provisions will limit child custody jurisdiction to one state, avoid competing orders, and provide enforcement provisions for child custody orders.  This new Act defines what the home state of the child is and vests exclusive and continuing jurisdiction over child custody in that home state.  The home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or since birth for children younger than six months.  It also allows for "significant connections" to establish jurisdiction If the child has not lived in any state for at least six months.  Where there is a question of which state should have jurisdiction, procedures are established to determine which state has the most signicant connections with the child.  The Act also establishes how modifications of custody orders may be made by a state other than the original issuing state and provides for temporary emergency orders if a child is in danger and needs immediate protection.

If this bill is passed and signed into law by Governor Blunt, the effective date will be August 28, 2007.  To read the full bill, go to Uniform Child Custody Jurisdiction and Enforcement Act .

Proposed Legislation -Child Support, Maintenance (Alimony) & Paternity

Senator Koster has sponsored proposed legislation that, if passed and signed by the governor, will repeal several statutes in Chapter 454 and enact others in lieu thereof.  SB 493 (identical to HB 472) will affect child support, spousal support (maintenance/alimony), and paternity.  These new enactments will be known as the Uniform Interstate Family Support Act.  When two states are involved in a child support issue, the  Act  will determine the jurisdiction and power of the courts in the different states  and  which state's law will be applied.  It further  establishes rules requiring every state to defer to child support orders entered by the courts of the child's home state; the place where the order was originally entered holds continuing exclusive jurisdiction; and only the law of that state can be applied to requests to modify the order of child support, unless the original tribunal loses the continuing exclusive jurisdiction.

The Act also changes provisions relating to maintenance/alimony and paternity.  One of the issues this proposal changes is how an acknowledgment of paternity will be used as evidence.  Right now a male can acknowledge paternity by registering with the Putative Father Registry.  The male also registers with the Registry if he believes he is the biological father of a child but doesn't know for certain. The registration can be revoked.   Right now this registration can only be used as evidence in a trial if the male has not revoked his registration.  Under this proposed Act, any certified copy of a voluntary acknowledgment of paternity may be admissible to establish parentage of a child.  This means that whether or not the registration has been revoked, it can be used against the male later if he contests the paternity of the child named in the Registry.  This may not mean a lot if the genetic tests come back conclusively finding that the male is not the father.  It may mean a lot if the tests are not so conclusive.  This will probably be a rare case but I can see it happening if the biological father of the child and the male alleged to be the father are related.  I have had one case where the biological father of the child could have been one of two brothers.  So it is possible to have a situation where I would not want the Registry acknowledgment to be used as evidence against a client if he is denying paternity after learning facts that would lead him to believe he is not the biological father of the child.

The effective date of this Act will be August 28, 2007 if passed and signed by the governor.  To read the full text of this proposed Act, go to Uniform Interstate Family Support Act.

Prenup Legislation Proposed

Senator Koster has proposed legislation that would affect prenuptial agreements if passed.  SB 494 (identical to HB 471) would add additional statutes to Chapter 452 and would establish the Uniform Premarital Agreement Act.  In the proposed legislation prenuptial agreements are defined  as agreements between spouses made in contemplation of marriage and effective upon marriage.  They are only valid if made in writing and signed by both parties and full disclosures are made as to assets, etc. As long as the matter is not in violation of public policy or any law imposing a criminal penalty it can be put into the agreement.  However, child support may not be adversely affected.  The bill has just had its second reading and if passed, would be  effective August 28, 2007.  To read the full text of this proposed legislation, go to Uniform Premarital Agreement Act. 

Case Review - Spouse Has to Pay When Found to Have Squandered Assets

In Franklin v. Franklin, the Missouri Eastern District Appellate Court, upheld the trial court's finding that the husband had squandered a marital asset and ordered the wife to be reimbursed.  During the last part of the marriage the husband talked the wife into mortgaging the marital residence in order to obtain funding for the couple's business.  The parties separated with the husband remaining in the residence.    The mortgage payments became overdue and the husband refused to assist wife with bringing them current and saving the residence from foreclosure. The wife sought reimbursement for the loss of the residence.  During the divorce proceeding the wife had a financial expert review the business and personal finances and the expert testified at trial that the husband had spent an average of $100,000.00 per year from the business account on his personal expenses and had put down a large sum for a house he wanted to purchase.    The appellate court stated that when a trial court hears evidence that shows  a spouse has squandered a marital asset (the residence) in anticipation of a divorce action, the trial court may order reimbursement to the other spouse. 

Source:  Franklin v. Franklin, Missouri Court of Appeals, Eastern District, Case number ED87422, February 6, 2007

Putative Father Registry Not Quite What It Was Meant To Be

I have previously written about Missouri's Putative Father Registry.  This Registry allows men, who are or who believe they are the biological father of a child,  to register their claim of fatherhood.  If a man does not do this before the child is born or within 15 days after the child's birth (some extensions in time apply if there is fraud), he stands to lose his parental rights to the child if the child is put up for adoption.  The State of Florida has a similar law.  In Florida, however, the courts are making findings that the failure to file a claim in the Putative Father Registry was not a basis to terminate the man's parental rights and that it is a fundamental error to do so.  The most recent case in Florida is J.A. v. Heart of Adoptions, Inc.  I have not researched to see what other state courts are doing but other states may be ruling in a similar manner.  If that is the case,  Missouri courts could soon be reviewing this issue.  This is an area that should be looked at more closely by the courts.

Source:  Family Law Prof Blog, 2/9/07 - Case Law Development: Teeth Pulled from Putative Father Registries; J.A. v. Heart of Adoptions, Inc., Dist. Ct. of Appeals of Florida, Southern District, Case No. 2D05-5058