FAQ

Child Support Obligations After Divorce

Section 452.340 of the Missouri Revised Statute covers the length of a parent's child support obligation. However, relatively frequent changes to the statute, as well as case law interpretation of the statute's meaning have caused confusion as to how long and under what circumstances a child is entitled to receive support. It is commonly understood that, barring a limited set of circumstances, the parent's child support obligation will continue at least until the child reaches the age of 18 or finishes high school. However, the parent's obligation to support that same child can continue beyond their 18th birthday if manifest circumstances dictate or more commonly the child enrolls in a post-secondary education program after the completion of high school.

In 2007, the Missouri Legislature modified section 452.340.5. Prior to the amendment which included the language regarding the child receiving failing grades in half or more of his courses, many Courts interpreted the statute to require the child to complete at least 12 hours each semester, failing to do so would result in the child's emancipation and the end of the parent's support obligation.

In a recent decision entered by the Eastern District of Missouri Court of Appeals, the Court found, in part, based upon Missouri's public policy of promoting the pursuit of higher education that a child may avoid emancipation by completing as few as 6 credit hours per semester, so long as they were originally enrolled in at least 12 hours at the beginning of the semester. While each individual fact pattern is unique, this represents a significant shift on how long a parent could be obligated to provide support for their child. For example, the child who had just a few years ago enrolled in college for 15 credit hours, but failed 7 of those hours, would likely be emancipated by the Court and the parent's obligation to provide child support for that child in the future would end. That same child today would very likely not be emancipated and the parent's obligation to pay child support would continue.

The length of a parent's child support obligation to support a child who proceeds on to college after completion of their high school education is one of the most commonly litigated issues in the Family Court. The changes to the statue and its interpretation in the Court of law can often result in a wide range of rulings by your Family Court Judge.

For questions regarding a continuing child support obligation or any other issues resulting from your divorce or in the Family Court, please contact the lawyers at The Bellon Law Group.

Written by:

Douglas G. Bellon

Choosing the Correct Divorce Process

There are four basic paths through the divorce process:

1. NON-CONTESTED DIVORCE: In this path the husband and wife decide on their own how they will divide their property and debts, the custody of their children and how they will financially support their children and if any maintenance will be paid and under what conditions. After these decisions are made, one party typically hires an attorney who is then responsible for formalizing the agreement and getting all necessary documents prepared to finalize the divorce.
• Pro: It is a cost effective way to get a divorce due to the reduced legal expense that typically comes with a non-contested divorce. Also, if the parties are able to reach an agreement through civil communication it can be less traumatic and damaging on their children than a more highly contested divorce.
• Con: Parties who enter into agreements without the assistance of experienced and competent legal counsel can often reach agreements with long-term negative impacts on their children and/or a negative financial impact on their future. This can be done unknowingly or as a result of pressure from the divorcing spouse or occasionally a third party. If you have one or more children or have any questions as to your rights in the division of property, debts or if you or your spouse could be entitled to maintenance, it is critical that you consult with an experienced attorney who specializes in the area of Family Law prior to finalizing any agreement.
2. MEDIATED DIVORCE: In this process the husband and wife meet with a third party who is trained in mediation to help work through the decision-making process. This process can take as little as one mediation session in a divorce with limited issues. However, multiple sessions are often necessary to work all of the issues necessary to reach a complete and enforceable Marital Settlement Agreement. The mediation process can take place voluntarily through the agreement of the parties prior to the divorce process or can be ordered by the Judge after one party has filed. If an agreement is reached, either the husband or the wife will then hire an attorney to draft the original Petition and file all necessary documents to finalize the divorce. The other spouse has the option to hire an attorney to review the documents prepared. Issues relating to the Court's authority to Order mediation, qualifications and duties of the mediator are governed by Missouri Supreme Court Rule 88.04 - 88.08.
• Pro: A successful mediation allows the parties to have a greater control over their future, through their input in the final terms of their divorce, with hopefully reasonableness in expense. Studies also show that parties who are able to reach an agreement in a civil manner are more likely to accept the agreement and behave in a way, post-dissolution, that has fewer negative implications on themselves and their children.
• Con: Mediation is not for everyone. It requires not only a competent and qualified mediator, but it requires both the husband and wife being committed to work through the divorce process through cooperation and in the light of what is the most workable outcome for not only themselves but for their spouse and children. Too much animosity by either spouse can often prevent successful mediation. Further, the dynamics of the parties' relationship can often prevent successful mediation. For example, a relationship with a real history of domestic violence is rarely successful through mediation. When deciding on the mediation process it is critical that you choose a well-qualified mediator.
3. INTERDISCIPLINARY COLLABORATIVE LAW: In this process each party is represented by an attorney. The attorneys agree to assist their clients in resolving disputes without litigation. The parties and their attorneys meet face to face in a four-way settlement meeting and work through the issues in their divorce to hopefully reach a settlement. To assist them in reaching a settlement third-parties can be brought into the meetings such as a financial advisor or counselor. Each party must agree that they are fully disclosing any relevant information including financial information.
• Pro: Much like mediation, a success allows the parties to have a greater control over their future, through their input in the final terms of their divorce, with hopefully reasonableness in expense.
• Con: If both parties are not committed to the process it can't be successful. For example, if one party refuses to fully disclose their income or financial assets and liabilities an agreement cannot be reached. And, without the assistance of a Judge, there is no remedy to compel either party to make complete disclosure. In this scenario it is not only up the parties to be fully cooperative but their attorney's as well. If either party selects an attorney who is not committed to the process the chances of success are limited.
4. CONTESTED DIVORCE: In a contested divorce the husband and wife cannot reach an agreement on one or any of the following issues: custody, child support, maintenance, property division, debt division or attorney fees. A Petition for Dissolution of Marriage is typically filed in your local Circuit Court, and your case is assigned to a specific Judge who moves the case through his docket until it is ultimately set for trial. Typically, each party is represented by an attorney who is ethically obligated to look after their client's best interest and to advocate for their position. The terms of the divorce can be settled by the parties, with the assistance of their attorney, at any time up until the trial. If the parties are unable to reach a settlement, the Judge will enter an Order and Judgment on all issues including child custody, child support, maintenance, property division, debt division and attorney fees. This is done after a trial on the merits where each side is allowed to testify and present evidence to support their position.

• Pro: Each party is afforded to opportunity to hire legal counsel to advise them on all aspects of their divorce throughout the pendency of the divorce. It is their lawyer's job to navigate them through the divorce process and to educate them on their rights and responsibilities during the divorce process and after its conclusion. In a situation where the parties are unable to communicate each other or they have unsuccessfully attempted to resolve their divorce through any of the other paths previously mentioned in this article, this path provides them with a conclusion on all issues. In a situation where the children are at risk or there is simply a hotly contested custody issue the Judge is required to enter orders based fundamentally upon the children's best interest.

• Cons: The husband and wife can lose control of the outcome of the divorce if they leave it up to the Judge's discretion. It can be understandably difficult for the Judge to make completely informed decisions based upon facts they perceive from evidence, which can be limited due to evidence rules, even if the trial takes multiple days. Further, the Judge is often limited to the remedies he can order of the parties which could otherwise be reached through an agreement and are a better fit under the husband and wife's circumstances.

A contested divorce can be a lengthy and expensive process. The cost and time involved in a contested divorce are often the most frequent complaints when a divorced spouse discusses his or her divorce. The docketing system that each judge uses to move their cases along can vary greatly between individual Judges. Even the most experienced and well intentioned lawyer is often limited by what they can do move a case quickly through this system. However, this process can be further exacerbated by the wrong lawyer causing further delay by his or her actions or failure to act. The cost of a contested divorce can vary depending upon the issues in your case and the lawyer you choose. When selecting a lawyer it is also important that there be an upfront discussion and fee agreement which details the costs you will incur. It is important to realize that there is no cause and effect relationship between the cost of your lawyer and the quality of your representation. The choice of a lawyer is an important one. Anyone considering a divorce should be comfortable that they will be treated fairly and professionally.

Written By: Douglas G. Bellon, Attorney at Law, Certified Mediator, and Divorce Practitioner specializing in contested divorce litigation

It is very common for clients to have questions about mediation and whether it would be a proper fit for their situation. When discussing mediation it is always important that the client begin with a working knowledge as to what mediation is and how it works.

What Is Mediation?

Mediation is a non-binding alternative to the traditional divorce litigation process where both parties in a divorce or child custody proceeding meet with a third-person who is a trained mediator. During these meetings the mediator assists the parties in working through the disputed issues in their situation with the goal that they will reach an agreement that both parties are content with and also are in the best interest of their children. The issues that the mediator will help the parties work through include child custody, child support, maintenance, property division, debt division and attorney fees.

If an agreement is reached on all issues, the final settlement documents to be submitted to the Court for the Judge's signature are typically drafted and filed by a lawyer who is retained separately from the mediator. While the mediator is often a lawyer, the mediator cannot draft and submit the documents on behalf of either party. Further, while one party is exclusively represented by the lawyer drafting and submitting the final documents, the other party has the option to retain separate legal counsel in review and possible redrafting of the final documents.

The agreements which are reached in the mediation process are non-binding on either party until the Decree/Judgment is signed by the Judge who is presiding over their divorce or child custody matter. This means that either party has the right to change their mind on all or one of the issues previously discussed and resolved with the help of the mediator, until their matter is final through the court system.

When Should I Mediate?

Mediation can be done either before a Petition for Dissolution of Marriage or Petition for Declaration of Paternity has been filed in Court or after the Petition have been filed but before the conclusion of the matter. A mediator can be retained prior to filing and will help you work through your issues until either party decides to file their action in Court.

The mediation process can also be undertaken once the court action has commenced. This can either be done voluntarily or the Judge can order the parties into mediation. Many local jurisdictions including St. Charles and Lincoln Counties have a mandatory mediation program for various types of pending child custody cases. In these jurisdictions, the parties will need to present a good-cause reason to the presiding Judge as to why they should not mediate their particular issue if they do not want to undertake mediation. These reasons generally center on a history of abuse or harassment between the parties.

What Does Mediation Cost?

Mediators are generally paid on an hourly basis. Due to the fact the hourly rates and fee structures often vary between mediators it is important to engage in a written fee agreement with your mediator prior to undergoing the mediation process.

Some jurisdictions may offer a free mediation program for different types of cases. For example, M.A.R.C.H. Mediation (Mediation Achieving Results For Children) currently offers a limited number of hours of mediation for Paternity and Motion to Modify cases in St. Charles County at no cost to the parents. Check with your attorney to see if your jurisdiction offers a free or reduced-cost mediation program.

Is It Right For Me And My Children?

A successful mediation allows the parties to have a greater control over their future through their input in the final terms of their divorce, with hopefully reasonableness in expense. Studies also show that parties who are able to reach an agreement in a civil manner are more likely to accept the agreement and behave in a way, post-dissolution, that has fewer negative implications on themselves and their children.

However for mediation to work, both parties need to be invested in the process. They need to be willing to voluntarily make a full disclosure of all financial assets and liabilities. And, they need to be willing to accept their spouse's point of view and possible compromise on some of their objectives to reach a settlement. Too much animosity by either spouse can often prevent successful mediation. Further, the dynamics of the parties' relationship can often prevent successful mediation. For example, a relationship with a real history of domestic violence is rarely successful through mediation. If these circumstances exist, the mediation process may only serve to increase the financial cost of the divorce as it is not likely to succeed.

When deciding on the mediation process it is critical that you choose a well-qualified mediator.

Douglas Bellon

Mr. Bellon is certified family-law mediator. If you wish to inquire about whether mediation is right for your situation in particular or if you wish to retain Mr. Bellon, please contact our office.

In the State of Missouri your presumed amount of child support is determined under Missouri Supreme Court Rule 88.01 and pursuant to civil procedure Form No. 14 (Form 14). The amount of child support that results from the use of the Form 14 is a rebuttable presumption that can only be overcome by convincing the Judge who is presiding over your case that to order that specific amount of child support would be unjust and inappropriate in your particular circumstances.

However, your lawyer and the Judge deciding your child support amount will almost certainly first determine the presumed amount of child support in your circumstances by filling out a Form 14.

There are many factors that go into the completion of the Form 14. The first of which is to determine who will be the paying parent and who will be the receiving parent. This is generally determined by which parent has the majority of the overnight physical custody of the children. That parent will be the receiving parent, and the other parent with less time will be the paying parent. The other factors include the number of children, the respective gross monthly income of the parents, any child support or maintenance otherwise paid for or received by the parents, child care costs, health insurance costs for the children of the action and the number of overnights the paying parent has with the children each year. Other factors include recurring extraordinary medical care costs or other necessary recurring costs for the minor children.

There are currently multiple examples of the Form 14 available on-line. Many of which can be accessed by a simple internet search. Yet, it is not uncommon for two people completing the same Form 14, under the same circumstances, to come up with two very different child support numbers. Further, it is important to verify that you are completing the latest and most current version published by the Supreme Court. Therefore in order for you to be confident in your presumed child support amount, it is important to have the Form 14 prepared by someone who is familiar with the directions and comments for use published by the Supreme Court Of Missouri as well as someone who is familiar with the views of the Judge who will be presiding over determining your child support amount.

For more specific information about your particular situation including determining the child support amount for the self-employed, determining child support in a 50/50 physical custody arrangement, or a split custody arrangement and what factors a court will consider in finding the Form 14 unjust and inappropriate, contact an experienced family law attorney today.

By

Douglas Bellon

Mr. Bellon is an experienced family law practitioner who is licensed to practice law in Missouri. You may contact him today for a consultation to discuss your particular situation.