Missouri Family and Divorce Lawyer Blog

Child Support - coming to MO

In Missouri our child support continues past the age of 18 years and ends at the end of the child's graduation from college or the age of 21, whichever comes first.  In special circumstances such as a special needs child the support can continue past 21.  Other states, however, end the support when the child turns 18 years of age.  So which law prevails when a custodial parent moves into Missouri with a child support order from a state that terminates the support at age 18?  Recently the Easter District of the Missouri Court of Appeals ruled that Missouri law prevails.  In Burke v. Hutto, decided November 20, 2007, the custodial parent (mother) moved into Missouri from California.  In 1991 a California court dissolved the parents' marriage and ordered the father to pay child support, which was later increased in a modification action.  Thereafter mother moved to Missouri and the father moved to Georgia.  In 1994 mother filed  in Missouri a motion to modify the child support amount and to have the father pay fifty percent of the child's college expenses.  The trial court granted the motion to modify.  When the child turned 19 years of age the father filed an affidavit for termination of the child support pursuant to California law that emancipated the child upon the 19th birth date.  The trial court terminated the child support upon its finding that the support issue was controlled by the Uniform Reciprocal Enforcement of Support Law (URESA).  Mother appealed. 

The Appellate Court found that the father had waived any defense of lack of personal jurisdiction in the modification action filed in Missouri due to the fact that  father did nothing to impeach the modification judgment at the time it was sought to be enforced when a wage withholding was entered nor when he sought to terminate the child support.    With this waiver Missouri law applied to the the modification action and Missouri required, at that time, that child support continue until the child reaches the age of 22 or completes a post-secondary schooling, whichever comes first. (This is now changed to the age of 21).  In his argument the father stated that through URESA Georgia law should be applied because that is where he has lived since 1994 and Georgia terminates child support at the age of 18 years.  The Appellate Court ruled that URESA does not apply in this case because the mother did not initiate the action to enforce the child support order in Georgia but that father initiated the action in Missouri to terminate his child support obligation, and even if it did apply, Missouri controls.  In citing Lewis v. Roskin, 895 SW2d 190 (Mo. App. 1995), the court ruled that "Missouri's interest in protecting the welfare of its resident child outweighed the interest of the issuing state  . . .  in protecting its sovereignty."  The trial court's termination of the child support order was reversed and the trial court was ordered to reinstate the previous child support order issued by Missouri.

The conclusion - if the custodial parent moves to Missouri and seeks a modification of a child support order and the personal jurisdiction is not challenged and won, Missouri law will prevail on child support orders and the parent paying support could end up paying child support until the child reaches the age of 21 years or graduates from college, whichever comes first, regardless of the laws of the  state where the initial divorce was granted.

Missouri Child Support FAQs

The following has been provided to the public by the Missouri Bar:

The purpose of this pamphlet is to answer some of the questions frequently asked about obtaining and enforcing support orders, and to give you an idea of the services which are available to assist you in your efforts.

Child Support in Missouri: Establishing and Enforcing Your Rights was prepared by the Young Lawyers’ Section of The Missouri Bar and was generously sponsored by the Young Lawyers Division of the American Bar Association.

Committee: Mary‑Michael Kelly, Esq., chairman, and special thanks to committee members: Melissa Mauer‑Smith, Esq. and Mark Katz, Esq. from the Family Support Division of the Jackson County Prosecutor’s Office, Kansas City, Missouri, for their contributions to this publication.

Copyright 1990, The Missouri Bar

ESTABLISHMENT OF CHILD SUPPORT ORDER

What is child support?

Child support is money that a non-custodial parent is ordered to pay on a regular basis to help pay for the costs of raising his or her child.

What is a child support order?

A child support order is a document from a court or Division of Child Support Enforcement (D.C.S.E.). It states 1) when, 2) how often and 3) how much a parent is to pay for child support. A child support order is usually included in a divorce judgment or paternity judgment.

Am I entitled to obtain a child support order?

If you have physical custody of your child rather than legal custody, if you are in the process of getting divorced, or if you are separated from your spouse, or if you have actual custody of a child for whom paternity has not been legally determined and there is no support order, then you are probably entitled to obtain an order for child support.

What amount will I receive for child support?

The State of Missouri has established guidelines for child support orders. These guidelines consider the needs of the child(ren) and the income of each party, i.e. the custodial and non‑custodial parent, and costs for child care and health insurance. Therefore, the amount of child support you receive will be different depending on your individual circumstances.

Who can change or terminate a child support order?

Only the court can change or terminate court ordered child support orders. Under no circumstances can the parties agree between themselves to alter a court order without the court’s permission.

In cases where D.C.S.E. has issued an administrative order, D.C.S.E. has the power to modify the child support amount.

How do visitation and joint custody affect child support?

Child support is not affected by visitation in most cases. Only a court can change a child support order because a custodial parent has not allowed the court ordered visitation. By the same token, visitation cannot be denied because a parent is behind in child support payments. D.C.S.E. is not allowed to get involved in visitation issues.

Any questions you may have on visitation issues should be discussed with your attorney.

In my divorce decree, the court did not order any child support. Can I apply for child support now?

You may be able to obtain an order of child support administratively or through the court depending on the language in your divorce decree and the circumstances.

Also, you may wish to speak with an attorney about changing the terms of your original decree. In some cases, the court may change an order of child support if the evidence supports a modification.

Who can order child support to be paid?

A child support order can be entered in several ways. A judge may issue a temporary order while a divorce or legal separation is pending, and the order may be finalized at the end of the case. A judge may issue an order as part of a paternity case. An order may also be entered as part of a juvenile proceeding, or as part of an adult abuse action. If a court has not already ordered child support, the director of the Division of Child Support Enforcement may issue an order in certain cases.

What is the Division of Child Support Enforcement?

The Missouri legislature set up the Division of Child Support Enforcement to assist parents in obtaining child support orders and in collecting child support. It is sometimes referred to as a IV‑D agency, because it was created under Title IV‑D of the Social Security Act.

In this pamphlet it will be referred to as D.C.S.E. The services offered by the D.C.S.E. are free.

How can I sign up for the services of D.C.S.E.?

Applications for child support assistance can be obtained at your local D.C.S.E. office. Check your local telephone directory for the Division of Child Support Enforcement office located nearest you.

Do I have to meet any financial qualification in order to obtain the assistance of the Division of Child Support Enforcement?

The child support services are available to all custodial parents, regardless of income level.

Can I get child support if I am receiving state aid?

As an A.F.D.C. recipient, you have signed over your rights to child support to the state. The state, through D.C.S.E., will try to establish and enforce a child support order. The money collected will be turned over to the state to pay back the state aid which you have received.

If you are receiving state aid, your caseworker should be able to answer your questions about their policies.

Who keeps track of my child support payments?

In all cases, child support payments are tracked through the Family Support Payment Center (FASTPAC).

 

When does the child support obligation end?

Usually, child support will terminate at the age of emancipation, which differs in each state. In most cases in Missouri, the obligation to pay child support will end when the child is between the ages of 18‑22 years. The actual date of emancipation will depend on whether the child has graduated from high school and is attending some form of higher education. Other factors include whether the child is married, is on active duty in the armed forces, or is self‑supporting.

My spouse and I are separated, but neither one of us has filed for divorce or legal separation. Our children are living with me. What can be done to get child support for my kids?

The Division of Child Support Enforcement can obtain a child support order for a custodial parent through administrative procedures.

The D.C.S.E. does not handle divorces; therefore, you may wish to contact an attorney to discuss your other options.

PATERNITY ISSUES

The father of my child and I are not married. Can I receive child support from him?

Your case can be handled either by D.C.S.E. or your own attorney and would generally be called a paternity case. In a paternity case, once paternity (fatherhood) is established, you may be able to obtain child support from him for your child.

How long does it take to get an order establishing paternity?

If the father of the child is unwilling to cooperate in establishing paternity and it must be proven that he is the father, establishing paternity can be a long process. Every case is different and the time span varies widely. If, on the other hand, the father legally admits his paternity, the case can proceed fairly quickly.

Will a blood test be done in my paternity case?

Generally, in cases where a man denies that he is the father of your child, the alleged father is entitled to request a DNA genetic parentage test to determine if he is the biological father. Sampling may be obtained by blood or buccal (cheek) swab. Today the vast majority of testing is performed using buccal cells, rather than blood. This technique is approved by the paternity testing accreditation organization, the American Association of Blood Banks.

ENFORCEMENT OF CHILD SUPPORT ORDER

I already have a child support order, but the other parent isn’t paying. What’s the next step?

Once you have a child support order, if the support is not being paid, the next step is to enforce the order. You may try to enforce the order on your own, or you may wish to speak with an attorney or go through D.C.S.E.

How can a child support order be enforced?

Usually, the quickest and most effective ways to enforce a child support order are through wage assignments and garnishments. These are orders to employers, banks and others who may owe money to the absent parent to pay the delinquent child support instead of the absent parent. Other methods of enforcement include real estate liens, personal property liens and attachments. These methods are usually more time‑consuming and, in the case of attachments, may involve large cash deposits to cover sheriff’s fees, storage and court costs.

What is civil contempt of court?

A civil contempt order is one way that a judge can enforce a child support order. In certain circumstances an absent parent may be sent to jail until he or she pays off the child support arrearage. Civil contempt is a very complicated area of law. It is recommended that you consult an attorney or the D.C.S.E. rather than trying to obtain a civil contempt order on your own.

What if the absent parent is not in Missouri?

The fact that an absent parent does not live in this state may make child support collection more difficult. However, all 50 states have passed laws which increase interstate cooperation. You may wish to contact your attorney to discuss the possibility of registering your child support order in the absent parent’s state.

D.C.S.E. has the ability to cooperate with IV‑D agencies in other states through administrative procedures. The agencies may also work together by filing a petition under the Uniform Reciprocal Enforcement of Support Act (URESA).

What will happen to the child support if I move out of Missouri?

In most cases, child support is not affected if you leave the state. If you have child support collection problems, you should contact the IV‑D agency in your new location. You should be aware, however, that leaving the state may have implications where custody and visitation are concerned.

If you are thinking of leaving the state, it is recommended that you speak with your attorney to get a full explanation of your rights and responsibilities.

What can I do to help the D.C.S.E. obtain and/or enforce the child support order for my kids?

You can provide all information and required documents with your application. You can keep D.C.S.E. advised of any new information on location or employment of the absent parent.

What about:

Custody ? Visitation ? Divorce ? Abuse ? Mediation/Arbitration ?

These issues are beyond the scope of this pamphlet and you may wish to discuss them with your attorney. The D.C.S.E. does not have the authority to deal with these issues.

Source:  The Missouri Bar

Also take a look at a new website, The Child Support Web, for information about child support in various states or to find an attorney in the different states.

Case Review - Criminal Non-Support and Paternity

Recently the Missouri Court of Appeals, Western District, handed down its decision in State v. Salazar.  The defendant had appealed his conviction for criminal nonsupport based upon: violation of his due process rights by the trial court refusing to order blood testing, by the responsibility to pay child support being based upon an administrative order of paternity as opposed to a court determination, and that his 28-day sentence amounts to cruel and unusual punishment in that the sentence is disproportionate to the wrongful act he allegedly committed.

During the defendant's marriage his wife became pregnant but both admitted that the child was not the defendant's.  His name was put on the birth certificate due to the insistence of a hospital clerk since they were still married at the time of the birth. Subsequently the Division of Child Support Enforcement (DCSE) served its "Notice and Finding of Financial Responsibility" on the defendant and he and the mother contested the paternity.  After the defendant's failure to show at the hearing a default decision and order was entered finding the defendant to be the father of the child and ordered him to pay child support.  Defendant did not seek a judicial review of the order and he did not  pay the child support. The defendant was charged with criminal nonsupport.  After a trial to the judge the defendant was found guilty and sentenced to 28 days in the county jail.

The appellate court found that the defendant's due process rights were not violated by the trial court's failure to order DNA testing because the biological paternity is not a required element of proof in a criminal nonsupport case.  Further, his rights were not violated because it was based upon an administrative order rather than a court order.  An administrative order of paternity is given the same force and effect as those made in a court.  The fact that the defendant failed to request judicial review of the administrative order does not change this.  The appellate court also found that the 28-day sentence was not "cruel and unusual punishment" when the defendant could have received a jail sentence of up to one year. The judgment of the trial court was affirmed.

This is a good case to show that you need to appear at all hearings when directed and  that the proper procedures need to be followed such as the judicial review process when dissatisfied with an administrative order.    It is also a good case to show that you should not let your name be added to a birth certificate if you contest the paternity of the child.

Source:  State v. Salazar, WD65099, (Mo. App. W.D. 02/13/2007).

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. 

Missouri Paternity Rights -Putative Father Registry

Are you the father of an unborn child or a very recently born child and not married to the natural mother?  Do you know that you could lose your rights to this child if you do not actively acknowledge that this child or unborn child is yours?  Well, you could.  Under Missouri law a man may lose all rights to his child unless he acknowledges paternity by registering his acnowledgment of the child with the Putative Father Registry; by both mother and father signing an Affidavit Acknowledging Paternity; or through court action.  Every unmarried father needs to be aware of each of these actions.

Under the Putative Father Registry the man files a Notice of Intent to Claim Paternity and "officially" acknowledges or claims he is the father of a certain child and his name is put into the registry.  The man may file before the child is born or he may file within 15 days after the child is born.  This time period is critical.  If the man does not file during this stated time period, the child could be put up for adoption and the man does not have to receive notification of it.  Failure to file before the child's birth or within 15 days after the birth waives the man's right to withhold consent to the adoption.  There are limited exceptions to this.  If the man was led to believe by the mother's misrepresentations or fraud that (1) she was not pregnant when in fact she was; (2) she terminated the pregnancy when in fact the baby was born; or (3) the child was not born alive when in fact it was; and the man filed with the Putative Father Registry within 15 days of discovering the misrepresentations or fraud, a court could set aside the adoption. 

The Putative Father Registry does not establish legal paternity of the child.  There are other steps that do this.  However, it does create the legal notice of a man's claim to be the father.  The man's name is not added to the child's birth certificate through this registry.  The man must do that through the Bureau of Vital Records with an Affidavit Acknowledging Paternity or through court action. 

A man may revoke his registration on the Putative Father Registry at any time.  He must also notify the registry of any address changes.  Be aware that any un-revoked filing may be used as evidence in any proceeding in which it may be relevant (except by the man).

The Affidavit Acknowledging Paternity may be completed and signed by both the mother and father any time after the child's birth.    When this is filed with the Bureau of Vital Records the father's name is added to the child's birth certificate and he becomes the legal father of the child.  This Affidavit Acknowledging Paternity is legally binding and has the same effect as a court order establishing paternity and can be used as a basis for entering a child support order against the father.

The other method is through court proceedings.  A man may file a paternity action or a combination paternity/custody/visitation/child support action with the proper court.  In this action the man may request that the court order genetic testing of the man, mother and child to determine if the man is the natural or biological father of the child.  While this can be done before the child is born, I do not know of a court that will order the testing before the child is born.  The risk is too great to the baby and the mother.  The results of the genetic testing must show at least a 98 percent probability that the man tested is the natural father of the child.   If the testing comes back that the man is not the natural father, the court will make that ruling and nothing further will be done except possibly taking the man's name off of the Putative Father Registry.  If the court determines the man is the natural father, it can proceed with the other issues of custody, visitation and child support.  The court will also order that the man's name be put on the child's birth certificate and that his name be added to the Putative Father Registry.

There is one more thing a man should be aware of.  If paternity has not been established and the child has not been put up for adoption, either the mother of the child or the man may request that the Family Support Division - Child Support Enforcement (FSD-CSE) obtain the necessary genetic tests to determine paternity of the child.  If it is determined that the man is the natural father of the child, the man may be required to repay the State of Missouri for the costs of the testing and he can be ordered to pay child support, including health insurance on the minor child.  FSD-CSE does not do anything regarding custody or visitation.  To establish these items and, in my opinion, to get a fair ruling on child support as well as custody and visitation, the man must file an action with the proper circuit court.

I advise my male clients that if they believe they are the natural father of a minor child, it is in their best interests to take the matters of paternity, custody, visitation and child support to the circuit court where the judge may take into consideration other items that the FSD-CSE can not or will not take into consideration on child support.

STEPS TO TAKE WHEN CONSIDERING A DIVORCE

When a person is considering leaving his or her spouse and filing for divorce, emotions are usually running high and may take over the person's rational judgment.  I see this all the time when I am consulting with a divorce client for the first time.  Therefore, I have created a list of things to do or consider before taking that final step and moving out of the marital home or having the spouse do so.  These steps are based on Missouri law but can be useful in other states.  Some of the things you should do are:

1. Know your financial situation.  Know what your monthly, semi-annual or annual bills are, how much income you and your spouse have coming in,  and where all bank accounts, stock assets, retirement accounts, 401K accounts, etc. are and the value of each.  It is a good idea to make a copy of each document and keep them in a safe place where your spouse will not be able to take them or destroy them.  I usually recommend the client keep the documents in a safe deposit box that the spouse does not have access to or  a parent's  or friend's house.  It is not unusual for one spouse to try to hide assets from the other when going through a divorce.  You should also be thinking about what debts each of you will pay during the pendency of the divorce. 
2. Know the physical assets in your house - each antique, family heirloom, furniture pieces, kitchen items, etc.  It is a good idea to have a video or a picture of all physical assets in the house for future reference.  While you are doing this be thinking about the value of each piece and whether that piece is something you would like to keep or let your spouse have. 
3. Know the vehicles that are owned or leased by you and your spouse.  This should include the make, model, vehicle identification number, how titled, the current mileage, and the debt and creditor on each vehicle.
4. Obtain the legal description of each parcel of real property that is owned by the two of you together  and by either of you separately.  Know the value of each property and the debt thereon.  If needed, have a real estate agent look at the property and give you an estimate of what he/she thinks the property can sell for in the current market.
5. Know the insurance policies that are on you, your spouse and any children you have.  This should include health and life policies.  Obtain copies of these documents if possible.  If your spouse carries the insurance for you, start checking into the availability and cost of obtaining insurance through your employer or through a private insurance agency.  In Missouri the spouse is not required to carry insurance on you after the divorce is finalized unless so ordered by the court.  The spouse that is carrying the insurance when the divorce petition is filed is required to maintain it throughout the divorce proceeding. 
6. Start putting together what your financial situation will look like after the divorce if you receive all that you want and/or will be obligated to pay.  Usually if you receive an item that has a debt on it, you will be required to assume that debt.  Take into consideration any insurance that you will need to obtain and pay for.  Do not count on receiving any maintenance (formerly known as alimony) as maintenance is difficult to obtain in Missouri if both spouses are working, healthy, and capable of providing for himself or herself.
7. Start considering the custody and visitation arrangements for any minor children (under 18) that you and your spouse have together.  If one of you have a child that is not the other spouse's, the non-parent spouse will not have any custody or visitation rights to the child unless the parent agrees to it.  I always instruct my clients that unless the other parent is abusive or negligent in some manner regarding the children, the children need to spend as much time as possible with both parents.  This is a time for the parents to put aside their anger and hurt with each other and think about what is best for the children.   The children will be going through enough heartache and difficulty with the parental separation and do not need to be put in the middle of the battleground unless there truly is a legitimate reason that concerns the children's health and welfare.
8. Plan for ways to pay for your attorney fees and costs for the divorce.  In Missouri the filing fees for a divorce range from $125.00 to approximately $200.00 (depending on the county where filing and if there is real estate and children involved).  Attorney fees for a contested case will usually range from a retainer of $750.00 to approximately $15,000.00, depending upon the complexity of the case and the amount of fighting between the parties that the attorney anticipates.  Attorney hourly fees are usually between $125.00 and $250.00.  Just remember, you will usually pay more for an experienced attorney.  Some attorneys will take payment plans but more and more divorce attorneys are requiring a large retainer (what they think the case will cost in total) because of past clients not paying all the fees that are due.  This seems to be the one area where that is a problem for attorneys.
9. Remember, the more you and your spouse can work out together as far as division of assets, debts and the custody and visitation of your minor children, the less the Judge will have to decide and the less you will receive a judgment that neither of you like.  It will also be cheaper as far as your attorney fees are concerned.

The above is just a start in the items that you should consider and do if you are contemplating a divorce.  Depending on your particular circumstances, an attorney will advise you of more things to do or not to do.  Whether you hire an attorney to represent you or if you decide to go "pro se" in your divorce proceedings, you should always consult with an attorney in the beginning to know what your legal rights are.