Missouri Family Law Blog

Why Can’t I Move? Missouri’s Tough Relocation Law

Amy — Thu, 16 Feb 2012 16:18:59 +0000

In today’s very mobile society it’s hard to explain to the client that just landed a fabulous new job in another state, to the one whose spouse is in the military, or to the client who has looked for months and feels like moving is his/her only option for finding employment in their field that they simply cannot move and take their children with them. What am I talking about? I’m talking about Missouri’s relocation law that applies to parents who share custody with someone else and want to move literally anywhere.

Under Missouri’s current law, the moving parent must give written notice by certified mail to the other parent of their intentions to move. The notice must contain specific details regarding the proposed move. The objecting parent then has thirty days to file an objection with the court to the moving parent’s proposed relocation. This required notice applies to any move, not just those out of state. Fail to give the notice, and you will find yourself in big trouble.

Having failed to win a case yet, I can tell you that more likely than not, if the noncustodial parent doesn’t want you to move and he/she is involved at all with your child, you aren’t going to get to move. Of course, this is looked at on a case by case basis but keep in mind Missouri’s relocation law is a creature of the legislature. Our elected officials passed this law and the judges are bound to interpret and apply the law. I write this because so often clients believe that it is our judges who are biased or unfair. With respect to Missouri’s relocation laws, the buck stops with our Missouri legislature. For more information about Missouri’s relocation law, check out our website at www.columbiamolawfirm.com.

Estate Planning: Adult Adoption

Knight & Salladay — Thu, 09 Feb 2012 21:22:26 +0000

You may have heard in the news lately about the Florida almost-billionaire who adopted his 42 year-old girlfriend in an effort to put certain assets out of reach of the plaintiffs in a wrongful death lawsuit filed against him. This man had established trusts years prior, reportedly worth “several hundred million dollars”, for the benefit of his children. Trust funds were to be distributed to his children when they reached age 35. The trust assets are protected from his creditors since they are held in the name of the trust, and the judge presiding over the wrongful death case had ruled early on that the jury could not be told of the existence of the trusts. Enter the man’s estate planning attorney. Through the adoption, the girlfriend could be added to the class of beneficiaries of the existing trusts (the man’s “children”) and receive a trust distribution, since she has already reached age 35. Then she would (theoretically) share her trust distribution with her dad/boyfriend.

So besides this rather creative attempt to stiff creditors, when is adult adoption available, and why do people do it? In Missouri, as in other states, adoption is a creature of statute, and adult adoption is permitted. Adult adoption is not common, but it is reportedly being done more often. Inheritance and benefits eligibility probably represent the most common reasons for adult adoption, i.e., creating a legal parent-child relationship so that the adopted person is eligible for benefits through the parent and/or is able to inherit from the adoptive parent. Often the person to be adopted may be a disabled person, and the adoption functions to provide him or her with continued care and insurance coverage. Adult adoption has also been used by same-sex couples to secure inheritance rights and by trust fund beneficiaries that do not have children of their own who wish to direct assets to a person of their choice. Another reason for adult adoption is to give legal recognition to an existing parent-child relationship, such as step-parents or foster parents adopting the children they have raised. People may have a variety of other personal reasons for creating a legally-recognized family relationship through adult adoption. Unlike marriage, however, adoptions are difficult if not impossible to reverse, so the potential for unintended consequences dictates caution.

Why you need to be careful when using Facebook

Amy — Wed, 08 Feb 2012 14:13:52 +0000

As a divorce lawyer Facebook has given me the evidence I once only wished I had to use against you in court. What you post can and will be used against you. Who you think are your friends are probably giving your spouse or me copies of your Facebook page to use against you. What follows are some seemingly innocent posts that have gotten my clients into trouble. Hopefully, you will head the warning and if getting a divorce be very careful about what, if anything you post on Facebook while involved in any kind of divorce or custody case.
1. Posting bad words, references to drugs, pictures of marijuana, guns or other illegal activity. Do I really need to explain this one?
2. Keeping your paramour as one of your friends on Facebook. If your spouse doesn’t know who your paramour is you can bet that through a little bit of Facebook snooping he/she will soon find out.
3. Posting or checking in at local bars, nightclubs, and other events involving alcohol or drugs. I kept a running tally of this on an opposing party and it turned out to be pretty effective in showing to the judge the kind of “party” lifestyle that Mom was living on weekends when she had her son.
4. Referencing your upcoming court date on Facebook. Not smart. Not only does the whole world not need to know you are going to divorce court but this only prompts defamatory comments from your friends about the other party which will then be used against you in court. Mental note: you can’t control what other people post in response to your posts.
5. Making comments about being a “single parent” or how difficult it is raising the children on your own. Yes, you might now be a single parent but that comment also implies that you can’t handle it so be careful how what you say might be interpreted by a judge that you don’t know.
6. Posting racy pictures of yourself or you with your new boyfriend/girlfriend. I like the ones that show both of you holding beers in your hand and clearly intoxicated. As a divorce lawyer I love to print and take those photos to court; particularly if you are denying that you have a boyfriend/girlfriend or that you drink.
7. Posts expressing disgust, frustration, or anger about your spouse on Facebook. Keep it to yourself. Your divorce should not be a public fight but a private one you work through with the lawyers and your spouse. The judge will not be impressed if you are seeking custody of your children because one of the factors that must be considered by the court is who is more willing to allowing a frequent and continuing relationship with the other parent.
8. Posts about new purchases such as cars, trips taken, jewelry, clothes, etc. More fuel for the divorce lawyer particularly when you claim your spouse isn’t financially supporting you, the settlement is too low or you don’t have enough money to support your children.
9. Flirting on Facebook. Yes, really.
10. Playing Facebook games at all the wrong times; i.e. you’re supposed to be at your son’s soccer game but your Facebook page clearly reflects something different. These records can and will be subpoenaed.
The bottom line here is get off of Facebook while going through a divorce or any type of contested custody case. It’s not worth the risk, emotions run high, and sometimes you just can’t refrain from speaking your mind about the other person. When in doubt, don’t do it.

What does it mean to appeal my case?

Amy — Mon, 06 Feb 2012 19:05:03 +0000

Many a time I have heard from a disgruntled client “If that judge doesn’t make the right decision or if I don’t get what’s fair I’ll just appeal.” What does that mean? First of all in order to even be able to appeal you must have a contested trial. This means that both you and the other party testify, call various witnesses, and present evidence with respect to your case. If you don’t have a contested hearing you cannot appeal. You cannot appeal from a written settlement agreement.

Assuming you do have a contested hearing you must then consider many factors with respect to whether to appeal. Appeals are expensive and you have no right to free legal representation on appeal. You may have already spent thousands of dollars just going to trial. An appeal will still be expensive.

An appeal in Missouri is to the Court of Appeals which is a three judge panel in the Eastern, Western, or Southern Districts of Missouri. This means traveling to Kansas City, St. Louis, or Springfield for the appeal. When you go your lawyer makes legal arguments after they have submitted written briefs with respect to the legal issues on appeal. You do not get to testify again. The three judge panel does not hear new evidence and you do not testify again. If you appeal the Court of Appeals is only looking at the evidence presented at the trial court level to determine if there was a blatant error or misapplication of the law. There is no “do over” but merely an opportunity for the appeals court to determine if the trial judge misapplied the law or if there was a blatant error.

The likelihood of success on appeal is approximately 20% or less. Keep in mind that trial judges are given broad discretion to judge the credibility of witnesses and to make decisions with respect to your case that the Court of Appeals will not interfere with. Your trial judge is in the best position to determine whether someone is telling the truth, hiding evidence, or not being forthcoming about something. The Court of Appeals has a difficult decision making those kind of judgment calls simply based on a written transcript of the hearing.

Further, oftentimes in family law cases there are issues that need to be resolved sooner rather than later. On average the time it takes to appeal your case is 1-2 years after you have had the contested trial. If the issue is one spouse relocating, custody of the children, or even distribution of property this kind of delay is often not worth the hassle of waiting for the Court of Appeals to make a decision.

While there are cases that do merit appeal this is not something that every family law client should consider. Before you have your contested trial you should talk with your attorney about your expectations for the outcome of your case and whether or not your attorney believes that your case is the kind of case that would merit an appeal if the judge misapplies the law.

Be Smart about the Money

Amy — Tue, 31 Jan 2012 14:40:42 +0000

Divorce is financially devastating for a lot of people. The old adage goes that you can’t possibly end up in better financial shape post divorce than pre-divorce. That being said there are some basic things you can do to try to soften the financial blow of a divorce.

1. Be a Snoop about the assets and debts: If you don’t know what your assets are find out. Any financial documents can be a clue. Look at personal property tax receipts, homeowner’s insurance contents, online bank statements, pay stubs, loan applications, credit card statements and tax returns. Try to make an exhaustive list of your assets and debts from those documents. It’s very common for spouses to forget about retirement accounts, pensions, and the like. If your spouse has lots of toys—guns, trailers, etc. the personal property tax receipt will yield clues as to the make and model of some of these items. Pay stubs will lend clues to retirement contributions, deferred compensation, and vacation pay. Don’t forget about insurance overpayments, refunds, vacation points, and time shares. Less we not forget burial plots. Even carryover losses on your tax return can be a marital asset subject to division. Some assets will be worth more to your spouse than to you so make an exhaustive list so that you have more to negotiate with.

2. Pay attention to income: Gather pay stubs and figure out what both you and your spouse make. Is your spouse still contributing to retirement? Are you? If you have a divorce pending you should stop all retirement contributions while the divorce is pending in order to avoid giving your spouse half of any post separation contributions. It’s easy to figure out what your spouse can pay in terms of child support and maintenance if you have done a monthly budget for both of you.

3. Make a Plan: You will most likely be going from two incomes to one. You should never count on your spouse’s child support or maintenance payments to pay the bills. If you don’t have a budget make one. Budget as if you had no child support or maintenance to pay all of your bills. If that means renting a smaller apartment, shutting off the cable, or restricting your food bill then you need to make changes sooner rather than later.

4. Think hard about Lawyer’s fees: The average attorney fee bill nationally for a divorce is $15,000. While the average in Missouri is much lower you still need to think about and find ways to pay your attorney. Ask your lawyer up front what they charge and what you are billed for. Ask to be billed monthly. Look at the attorney fee statements. Ask at every appointment where you stand with respect to attorney fees. Just having this information and knowing how much you are spending often puts things into perspective with respect to deciding whether to settle or go to trial. Have a number in mind for how much you are willing to spend to get divorced and then talk to your attorney and try to stick to that number. If you have open communication with your attorney then neither one of you will be surprised about how high the bill is or about how you want to move forward with your case.

For more information contact a good family law lawyer or check out our website at www.columbiamolawfirm.com.

I Hate what you’re doing to your kids-A Divorce Lawyer’s Perspective

Amy — Tue, 24 Jan 2012 13:35:34 +0000

As a divorce lawyer we can’t tell you everything to do or not do while going through a divorce but we can share some of the mistakes we have seen other parents make while going through the process. Here is my list of things I hate to hear that parents have said or done to their children while going through a divorce:
1. You to your child—Your mother did this to us! If it weren’t for your cheating father we would still be a happy family. Way to go divorced parent. You just put your kid in the middle of your problem—not theirs.
2. When your child asks you for the registration fee for soccer, for their allowance, or for money to go roller skating with friends you say ask your Father. This also goes hand in hand with the newly divorced parents that we see who every weekend that they have their child they take them to the mall, out to eat, and invariably spend lots of money on the child doing something expensive that the other parent can never compete with.
3. Why don’t you just go live with your mother! You are just like your mother-hard headed and stubborn. Do I really need to explain why this is damaging to your child?
4. Don’t tell Mom or Dad that Ginger/Dan (new boyfriend/girlfriend) were with us this weekend. Don’t tell Mom or Dad where we went or what we did. It’s none of his/her business. Guess what. It is his/her business because that person is also this child’s parent. Encouraging your child to lie is not an example that any parent should strive to set for their child. Plus, in talking with the children who have been encouraged to keep secrets all this does is create more stress and unneeded fear and anxiety for them.
5. Failing to follow through on attending extracurricular activities that you promised your child you would attend and failing to be on time for exchanges. Perhaps you think this is the way to get back at the other parent. In reality you are only teaching your child not to trust you to show up when you say you will and you are also setting an example for them that it is okay to not do what you say you will do.
6. Your mother is so screwed up. She’s sick you know. She’s crazy. I don’t know how you can stand to live with her. Every child is made up of both mom and dad parts. When you criticize mom you criticize one-half of your child. Even if mom is crazy this only tends to make your child feel insecure about herself.
7. Telling Dad he can’t see the kids until he gives you the monthly child support check or pays a certain bill or telling your child he can’t go to Dad’s because he hasn’t finished cleaning his room. Seeing a parent is not related to paying bills or doing chores. Get over yourself on this one because the judge will hate you if he finds out you did this.
8. Give this bill to your father and tell him he better send a check back when he drops you off or asking your child to give certain bills to the other parent when you know the other parent’s reaction to this isn’t going to be good. Again, way to put your kid in the middle of your divorce and cause them additional, unnecessary stress.
9. Grilling, interrogating or encouraging your child to spy on the other parent solely so that you can get information that you think might help your divorce case. Kids just want to have fun. Don’t turn your kid into a spy because the next thing you know your kid will be spying on you and you’ll regret you ever thought about suggesting this.
10. Telling your child that someday you might get back together with your ex. Keep your delusional thoughts to yourself. Your child doesn’t want nor deserve to be put in the middle.

Should alimony/maintenance laws be changed?

Amy — Thu, 19 Jan 2012 13:30:47 +0000

There is a national trend going through the states right now to change current alimony laws. In Missouri we call it maintenance. These proposals, some of which have already been adopted significantly scale back a judge’s ability to award maintenance. These proposals also limit what a judge can do in each individual case. While many a lawyer has complained about the lack of direction in the current Missouri law these changes if adopted will have a significant impact, primarily on women. There are horror stories such as the case of Michael Morgan in Lehigh Acres, Florida. What we don’t know are the individual facts of that case not being reported in the media that the judge took into consideration. We also don’t know the judge or his/her philosophy in hearing that particular case. It is easy for the media or a group opposed to alimony at all to sensationalize such individual cases but much harder for them to look at the thousands of people every year that are not on welfare or living on the street because they were awarded maintenance in Missouri courts. These changes if adopted fail to recognize that every family is unique and often has different needs in the event of a divorce.
Judges and lawyers should have discretion to both craft settlement agreements and make orders that meet the needs of each individual family. The needs of every client cannot be legislated in a way that will protect and serve each person going through a divorce. There is already a presumption in the law that the person who is awarded maintenance has a duty to become self-supporting. Cohabitation language is routinely included in well drafted settlements when one spouse agrees to pay the other maintenance. Judges rarely, if ever award maintenance in situations where it is unwarranted. They already understand the consequences of ordering one party to support the other post-divorce. Perhaps more guidelines yes. Reform, no.

Joint Custody with a Jerk

Tana — Wed, 02 Nov 2011 18:15:35 +0000

Unfortunately, there is no magic formula that works for all divorced parents, but Julie Ross and Judy Corcoran believe taking a business-style approaching to your communication can help in their book, Joint Custody with a Jerk. The book suggests, “Consider your children your most valuable assets and your ex a client with whom you must work in order to keep those assets intact.”

Although some of the specific tactics may not be appropriate for your situation, we always encourage our clients to make sure your love for your children comes before your hatred for your former spouse or partner. If your custody situation in Columbia, Missouri has become unworkable, be sure to contact a divorce attorney at Knight and Salladay to discuss your options for creating the best possible custody arrangement for your children.

Nasty Divorce Tactics

Tana — Wed, 26 Oct 2011 21:24:48 +0000

A DUI is never a good time. But when it comes in the middle of a custody battle, it can be devastating to your divorce case. So devastating, that a private investigator in California is now the subject of a state and federal investigation regarding a string of “dirty DUIs” that he set up to assist women with their custody cases. The L.A. Times ran a story about these “dirty DUIs” masterminded by a private investigator working for divorce attorneys. The private investigator paid former showgirls to convince their unfortunate subjects to go out drinking and then invite them to follow them to another location in separate vehicles. Once the man left, a drunk driver was reported matching his description.

These tactics led to at least five men being arrested for DUIs during the course of their custody cases. Due to the conviction, one man had his visitation restricted to only supervised visits. At least two of the men are now seeking to overturn their court orders, based upon the discovery that the DUIs were set up. It is unclear whether this will sway the court to reconsider its prior orders. However, it is clear that parties in a custody case should be wary of using such tactics to gain an advantage. The real losers in these cases are the children who have to reconcile a father with a criminal conviction and a mother with questionable divorce tactics.

For questions about child custody, contact an attorney at Knight & Salladay.

Tax Consequences related to Divorce

Amy — Wed, 23 Feb 2011 20:52:42 +0000

It’s that time of year again and many clients often fail to consider how their marital status affects their taxes. Here are some bullet points to consider with respect to how your divorce affects your tax status:
1. Filing status for tax purposes is determined on the last day of the year–December 31. During your divorce proceeding even if you are living in separate households but not legally divorced as of December 31 you are still considered married for that tax year. Hint: either get divorced by the end of the year or plan on filing jointly for the prior tax year even if you are no longer residing together on December 31 because married filing jointly generally produces the lowest tax burden. Don’t file together if you think your spouse has underreported their income for the year because the IRS can assess underpayment penalties and interest in addition to the tax owed for underreporting.
2. When children are part of a divorce there are the following tax issues related to them that need to be considered: dependency exemptions, child care credits, child tax credits, medical deductions for children, and education tax credits-hope and lifetime learning credits. Talk to your tax preparer so you know what to negotiate for in your divorce settlement.
3. Generally cash payments received as part of a divorce are not taxable under IRS Code 1041. However, the tax basis of the asset being received is important. If you receive an asset with a low cost basis (ex. stock) but intend to sell it at a much higher market value post divorce there will be tax consequences. Again, talk to your tax preparer so you know what to negotiate for as part of your divorce settlement.
4. Consider the taxes associated with selling the marital home if you receive it. You may be paying a capital gain. Again, before you talk to your divorce lawyer give your tax preparer a call and find out exactly what the tax consequences could be of any potential divorce settlement. Then, you’ll know what to tell your divorce lawyer about what you want to negotiate for.
5. Maintenance. The spouse who receives maintenance has taxable income to report at the end of the year for any maintenance received. The spouse who paid receives a deduction for what was paid. Child support is not a taxable event. It makes a very big difference how any support paid is worded with respect to whether you paid your spouse child support or maintenance after you were kicked out of the house. Make sure you discuss this with your divorce lawyer.
6. Carryover losses on prior year’s tax returns are an asset to be divided by the court and should be considered in divorce settlements. Look at your prior year’s tax returns and see what carryover losses or gains are available that you can negotiate to claim as part of your divorce settlement.
7. Your divorce settlement should consider who will claim mortgage interest, real estate and property tax, capital gains and losses, and charitable contributions in the year the divorce is finalized so each party knows what they can claim on their taxes for that year.
These are just some tax consequences to consider as part of your divorce. In order to obtain more information make sure you speak with a qualified tax professional and a good divorce lawyer (www.columbiamolawfirm.com) who is aware of these factors to be considered in any divorce settlement.