Legal Separation in Missouri

A legal separation does not end a marriage or domestic partnership in Missouri. The court in Missouri may allow the spouses to legally separate when it finds:

• • that one of the parties has been a Missouri resident, or is a member of the armed services who has been stationed in this state, for ninety days immediately preceding the commencement of the proceeding and that thirty days have elapsed since the filing of the petition; and
• • that there remains a reasonable likelihood that the marriage can be preserved and that therefore the marriage is not irretrievably broken; and
• • to the extent it has jurisdiction, provision for custody and the support of each child, the maintenance of either spouse and the disposition of property has been made.

The spouses are also encouraged by Missouri courts to enter into a written separation agreement that will include provisions pertaining to custody, child support and visitation plan, division of property and maintenance or alimony to spouse. The terms agreed and approved in the agreement becomes enforceable on all parties and breaching any of the agreed terms of the agreement will lead to a punishment to the same extent as if any person is held for contempt of court in any other proceedings. The court also has the power to reject or demand modification of any of the terms if it finds they are unjust or unscrupulous.

Initial considerations for Divorce in Missouri

Who can file for divorce (“dissolution of marriage) in Missouri?

To file for a divorce in Missouri, either party must be a resident of the state for at least 90 days prior to filing. The petition shall be filed in the circuit court in the county where either party resides. [Based on Missouri Revised Statutes, Section 452.240 and 452.305.1]. The divorce proceedings will be initiated in the county where either of the parties has been residing at the time of filing for divorce.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. A dissolution of marriage may be granted on the grounds that there remains no reasonable likelihood that the marriage can be preserved and that therefore the marriage is irretrievably broken. If the defendant denies that the marriage is irretrievably broken, the plaintiff must prove one or more of the following:

• • the respondent committed adultery and to continue the marriage would be intolerable;
• • the respondent has behaved in such a way that continuing the marriage would be intolerable;
• • the respondent abandoned the petitioner for at least six months prior to the filing of the petition;
• • that the parties have lived separate and apart by mutual consent for at least 12 months prior to filing;
• • that the parties have lived separate and apart for a continuous period of at least 24 months before filing.

Not before 30 days and not beyond six months, is the time allotted under the Revised Statute to decide the divorce proceedings. The parties may be ordered to undergo counselling sessions before passing of the final decree; however, this step is not prerequisite to obtain a divorce.

The spouses are also encouraged by the Court, to enter into a written dissolution agreement that will include provisions pertaining to custody, child support and visitation plan, division of property and maintenance or alimony to spouse. The terms agreed and approved in the agreement becomes enforceable on all parties and breaching any of the agreed terms of the agreement will lead to a punishment to the same extent as if any person is held for contempt of court in any other proceedings. The court also has the power to reject or ask for modification of any of the terms if it finds they are unjust or unscrupulous.

At the request of either party, the court can pass temporary orders in matters where any issue raised by the petition is being contested. If spouses agree to all issues then the court can proceed to towards trial.

The Court will include in its judgment the last four digits of social security numbers of all the parties involved and full security numbers of all parties including child shall be mentioned as required under section 509.520, RSMo.

Division of Property

Missouri is referred to as an “equitable distribution state”. Missouri Revised Statute recognizes two forms of property ‘marital property’ and ‘non-marital property’ (separate property). The marital property and debts will be distributed equitably amongst the spouses in a divorce. Take note that the word 'equitable' does not necessarily mean equal division of marital property but seems fair and just under the circumstances.

What is “marital property”?

The term "marital property” is defined under sub- section (2) of Section 452.330 of the Missouri Revised Statutes. It means all property acquired by either of the party during marriage other than (a) property acquired by way of gift, inheritance, devise or descent, (b) property acquired prior to marriage or in exchange for property acquired by way of gift, inheritance, devise or descent, (c) property acquired after the spouses have been legally separated by the court's order, (d) property that has been excluded under a written agreement between the spouses.

All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of the fact that the title of the property is in the name of one of the spouses, or there is co-ownership held, such as under joint tenancy, tenancy in common, tenancy by the entirety and community property. For any acquired property to be held as non-marital property or separate property, it needs to proven that it is falling under any of the four categories as mentioned under sub-section (2) of Section 452.330 of the Missouri Revised Statutes.

The court will consider at least five factors when considering equitably dividing of marital property. These include:

• • economic circumstances of each spouse, desirability to be award family home or the right to live in the family home for specified period if the spouse is to get the custody of the child;
• • contribution of each spouse in acquiring of marital property and contributions of spouse as a homemaker;
• • value of non-marital property of each spouse;
• • conduct of the spouses during marriage;
• • custodial arrangements made for the child

Alimony in Missouri

Alimony (sometimes referred to as spousal support or maintenance) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce.

Alimony or maintenance can be requested by any of the spouses in the proceedings initiated for legal separation, dissolution of marriage. Alimony to the spouse will be granted under the following findings:

• • if the spouse is unable to support his or her needs from the property owned by him or her including the marital property that is assigned to him or her.
• • is unable to find an employment or is unable to stay employed as he or she is required to look after the child in custody

The maintenance or alimony amount that will be granted for a specified period will depend on the following factors:

• • Financial resources available to the spouse seeking maintenance, including marital property assigned to him or her, to meet his or her needs. To take into account whether the resources can meet the needs of the child in custody. To also examine the ability of the spouse to independently cater to his or her needs
• • Time required by the spouse seeking maintenance, to acquire education and training sufficient to get an employment
• • Comparative earning capacity of both the spouses
• • Standard of living enjoyed during the marriage
• • Liabilities and assets falling under marital property assigned to each spouse, including the assets and liabilities that the spouse has in relation to separate property
• • Length of marriage
• • Age, physical and emotional condition of the spouse seeking maintenance
• • Ability of the spouse to meet his or her needs even after paying for the maintenance to the other spouse.
• • Conduct of the spouses during the marriage
• • Other relevant factors, if any

Alimony ends from the date the spouse remarries, however, the other spouse will continue to support the minor child from the terminated marriage.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.