Family relations create a host of legal consequences. Whether you are contemplating marriage or divorce, or are considering adoption, an experienced family law attorney can explain the laws that apply to your particular situation and help you understand their effect so that you may make the best choices for you and your family.
Family law is the term that is applied to the laws and rules developed regarding family relationships. Family law defines not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares regarding how people who are related should treat each other.
Typically, family law attorneys assist people with the making and breaking of family relationships. Specific areas of representation usually include marriage, divorce, paternity, child custody and child support. Our family law attorneys also provide assistance in the area of adoption, guardianship, emancipation and name change. When you are faced with an important life decision regarding a key family relationship, the advice and assistance of an experienced family law attorney often proves crucial to your understanding of the issues involved.
Marriage is a legal union as much as it is a romantic one. Missouri law prohibits marriage to more than one person and marriage between close family members. There are also age restrictions. If you or someone in your family is considering marriage and you are worried that Missouri restrictions may prevent the marriage, talk to us about how we can help or plan for your future.
A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce gives each person the legal right to marry someone else. It also legally divides the couple’s assets and debts and determines the care and custody of their children.
In Missouri divorce is “no-fault,” where it is not required to prove that either party is at fault.
The primary issues to be decided during a divorce are maintenance or spousal support, property division, and, if there are children, child custody and visitation and child support. When spouses agree, they can usually obtain a divorce quickly. More typically, divorcing spouses have disputes regarding their post-marriage financial arrangements and the care and custody of their children.
Missouri is a community property state, where marital assets are split equally. If agreement is not reached about division of property, a trial is held and the Judge will divide your property evenly between the parties. When this happens, all property is sold at auction, often at greatly reduced values, and the money is then divided. Working with an experienced attorney can sometimes help avoid the necessity for such an auction. Maintenance, also known as alimony, is also a factor that can be agreed on by the parties or decided by the Judge at trial. Alimony is calculated by evaluating one party’s need and the other party’s ability to pay. Property division and alimony are often hotly contested and the early advice of an experienced family law attorney can greatly impact the ultimate result.
The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents. Custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children; and legal custody, or the legal rights and responsibilities associated with the child’s upbringing. You and your spouse may agree to an arrangement but if you are not able to agree, the court will determine one for you. In the past, courts routinely gave mothers physical custody and gave fathers visitation rights. Today, the courts have begun to realize that sometimes it is in the best interest of the children that they reside with the father. The Judge looks at the individual circumstances and decides whether it is in the best interest of the children to live with the father or the mother. Many parents believe that a child is allowed to choose where to live but Judges in Missouri do not allow a child to have direct input in that decision. Judges do not want a child of any age to testify. Courts also do not want to see siblings separated and income is not typically considered when the Judge decides where the children will best flourish. Some questions that the Judge will consider when making a custody decision are:
- Who has been the primary care giver?
- Which party is most likely to foster a good relationship with the non-custodial parent?
- Which party is most likely to care about the child’s academic performance?
- Does one of the parties abuse alcohol or drugs?
- Has one of the parties been charged or convicted with a misdemeanor or felony?
- Which party is able to provide a separate bedroom for the child?
- Has there been any domestic violence in the home?
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, some courts will require parents to participate in a mandatory mediation session. Mediation is an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements. If mediation is unsuccessful, the Court will determine custody. The Court will reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child. Courts often use custody evaluations performed by an outside expert to help them reach such a determination.
Biological parents must financially support their children. That obligation lasts until the child reaches 18 or graduates from high school, or until age 22 if a full time student at an accredited college, whichever is longer, unless the child is disabled. The responsibility to provide support in the form of regular payments generally arises when one parent has primary custody of the child. Either parent may be ordered to pay support depending upon how custody is arranged. An unmarried mother may also file a petition for child support in family court and an order for support will be entered once paternity has been established.
The amount of support is set after the needs of the child and the parent’s income are assessed through the use of specific guidelines. The paying parent must regularly make the ordered payments, normally by payroll deduction to the Missouri Child Support Clearinghouse. Failure to remain current with child support obligations exposes the paying parent to significant penalties. Along with the family Court, the office of Child Support Enforcement has the power to suspend professional or business licenses, take away driver’s and recreational licenses. The Courts may also require payment of future owed sums in advance or place non-paying parents in jail when child support obligations are overdue.
Once support has been ordered, both parents have the right to request changes if there is a change in the financial situation of the paying parent. Because of the requirements involved in child support, parents can benefit from the advice and involvement of an experienced family law attorney when child support issues arise.
The process of establishing legal parentage for a father is called Paternity. Although Missouri recognizes the rights of a father if the mother has added his name to the birth certificate, full legal rights are granted only if the father was married to the mother at the time of birth or if there is a finding in the Courts determining Paternity. This can be an agreed action, where the mother and the father both sign a Petition stating that they are the parents of the child. Or if the mother or the father deny paternity, the Court may order a simple DNA test. Once Paternity is proven, the father is ordered to pay child support and given visitation with the child. Legal paternity also gives the father a very strong case for custody if the mother is ever found to be unable to properly care for the child.
We can help you establish guardianship for a minor child or an incapacitated adult. This can be a temporary arrangement or a permanent arrangement. Guardians in Missouri must be free from any felony convictions and be willing to see to the care and comfort of the child or incapacitated adult.
If you need to re-establish your maiden name or change the name of your children, we can help you with the Courts.