Missouri Family and Divorce Lawyer Blog

A Positive Outlook

Recently I was reading an article titled "half-full? half-empty? you decide" in the magazine Real Simple.  It described how you can interpret a situation differently from what it actually is.  For example, it described a person getting into an elevator with another person.  This other person thought the first one was looking at her harshly and was interpreting the look  as if something was wrong with her makeup.  The first person was flabbergasted because she wasn't looking at the other person hard because of the makeup, she was looking at her so intensely because she was listening to what was being said.  The article went on to describe how a positive outlook can change the way you look at situations.  It gave four steps to do this.  They are:

   1.  Hold it!  When something happens or someone says something that you could easily interpret as negative, count to 10, or even to 1,000.  Take a deep breath.

  2.  Ask this question:  At this moment in my life, what am I out for?  What's my goal?  Whether it's completing a round of errands or giving a speech to the community board, negative interpretations can hold you back.

  3.  Make it up.  Interpret the facts in a way that propels you toward your goal, not one that discourages you or drags you back.

  4.  Don't look back:  If you later discover that your first, negative interpretation was right, deal with it then and there and move on.  Remember - you lost nothing by taking the positive view in the meantime.

When I read these I immediately thought that these steps could help my clients when going through a divorce.  A lot of my clients have a hard time handling situations involving their soon-to-be ex-spouses and they seem to always put a negative spin on situations.  Sometimes there is a real basis for interpreting the situation negatively but other times there is not.  If they could put a more positive spin on the divorce and the various situations that arise, it will be easier for them to move forward.  Moving forward seems  to be the hardest thing  for some clients to do. I may start handing these steps out to my clients to see if it helps them.

Source:  Real Simple, March 2007

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

Alimony - Prenups for Women

What do you think about first when someone mentions the words "prenup" or "alimony"  (called "maintenance" in Missouri)?  You probably think that the man is wanting the prenup so he doesn't have to pay alimony to the woman in the event of a divorce.  Right?  Well, it is time to rethink this.  Women should start thinking about protecting their assets before they get married or even enter into a living arrangement with a man.  Why?  More and more women are seeing an increase in their income due to owning their own business, working their way up the corporate ladder, etc.  In many cases the woman's income will be more than the man.  Women need to start thinking about protecting their assets just like the men have always done.

You may be thinking that no man will ask for alimony - that it will hurt their "manly" pride.  Wrong, think again.  Men are starting to seek alimony and it just isn't the rich and famous like Nick Lachey or Elizabeth Taylor's ex.  It is the man who stayed home with the children while the woman went off to work; it is the man who works part-time  or who doesn't make as much as the woman and got used to the finer things that her money helped provide.  It could be the man you are planning on marrying or moving in with.

How do you protect your assets?  If you plan ahead you can have a prenuptial agreement or living arrangement agreement prepared by your attorney.  Be prepared to reveal all of your assets to your attorney and to your soon-to-be spouse.  If you don't reveal all of the assets in the prenup those assets will not be part of the agreement and there could possibly be grounds for fraud and setting aside the whole agreement.  If you want to enter into a contract before you live with someone you will need to include whether any or all monies will be combined, how the joint bills are to be paid, how the separate and personal bills will be paid, what will happen to the joint assets should there be a separation or parting of the ways, etc.

What if you are already married but want to protect your assets?  PINK magazine, February/March 2007 issue, has listed four things you can do.  These include:

1. Getting the man back into the workforce before you ask for a divorce or even hint that you are thinking about one.  If he is working and earning money on his own, he should not need as much or any support from you;
2. Keep all assets that you inherit in your name alone and do not co-mingle them with your spouse.  This means you do not put any monies into a joint account with your husband, you do not put his name on any real property, stocks, etc. Do not let your parents or other persons give assets to you and your spouse.  Have them just give it to you.  In other words, keep the assets totally in your control and name. 
3. You should build up a nest egg in a separate account under your control only.  This way should something happen you will have access to money if you need it.
4. You may be able to get your husband to sign a post-nuptial agreement, but don't count on it.  If you ask for one after the marriage you are probably going to be giving up more assets than you would have had you entered into a prenuptial agreement (think along the terms of a divorce settlement on this one.)

Due to tradition a woman may not feel comfortable asking the man in her life to enter into the agreements described above.  Women have come a long way in the work force and have worked hard to build up their assets and to provide for themselves and not have to rely upon the man taking care of them.  Women want to be treated as equals and are equal to men in this area and they should not hesitate to protect their assets just like the men should not hesitate to protect theirs.  Remember - entering into an agreement before the marriage or living arrangement is concluded is the best way to do this.

Source:  PINK, February/March 2007

Are there Sex Offenders Near Your Home or School?

Have you ever checked to see if there are registered sex offenders living in your neighborhood or near the schools your children attend?  If you have not, you need to do so.  One of the duties parents have is to protect their children from known harms.  If a registered sex offender lives in your neighborhood (or even close) or to your children's school and you have knowledge of this, you can be better prepared to protect your children by discussing  with your children how to avoid that particular location and what to do if approached by this person or a stranger.  You can also discuss measures to protect the children with other parents in the area and with school officials if there is a registered sex offender near the schools. 

It is very simple to check for a registered sex offender on-line.  Although there are many on-line places you can check, Family Watchdog is a useful site at http://www.familywatchdog.us/ and it is free to the public.  You can check your residential address as well as that of the school.

Source: Kansas Family & Divorce Lawyer 

Have You Provided for Your Children?

If both parents become deceased or become disabled to such an extent that they cannot take care of their children, who is going to take care of the children?  Most parents of young children have not taken the steps to provide for the children should something happen to them.  There are also times when parents are unable to take care of the children due to various reasons (i.e., medical, moving for job and not wanting to take children out of school before that school year is over).

There are various methods to provide for the children.  A few of these are:

a) provisions in the parents' Wills that provide for a guardian for the children (someone who takes care of the physical custody of the children) and a conservator (someone who takes care of the financial aspect).   These can be the same person or different individuals.  The conservator can also be a financial institution.  The parents will also want to make specific provisions on how their children are to be raised (religion, education, etc.) and how and what age they are to receive any monies.

b)  by creating trusts for the parents and/or the children.

c)  there are temporary measures such as special durable power of attorneys which would allow someone else to take care of the children for a limited period of time. 

Some of the most important steps parents can take do not cost anything.  These include talking to family members, friends, etc. about what they want for their children should something happen.  If the children are mature enough the parents should also talk to them.   The parents should make sure someone else is aware of the location of important papers such as insurance policies, bank accounts, and Wills.

There are many things parents can do to provide for their children and most of them need to be individualized based upon the circumstances of the family.  A lawyer can help the parents with making sure the children are taken care of.