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Family Law & Divorce Lawyer | Sedalia, MO

Divorce, Child Custody, Child Support and Enforcement Issues

I was just served with papers for divorce or paternity. What is going on?
What is involved in a divorce or a paternity suit?
Can my ex take my kids away from me?
How much will child support be?
How will we divide our property and debts?
Can I get maintenance or alimony?
My ex is not following the parenting plan. What can I do?
How can I change my parenting plan?

I was just served with papers for divorce or paternity. What is going on?

You were served with papers because someone has filed a lawsuit against you. These papers put you on notice of the lawsuit and what the petitioner is seeking in the lawsuit. You have thirty days to respond. It is very important that you speak with a lawyer right away to discuss how to properly respond. If you ignore this lawsuit, the petitioner will very likely ask the court to render a default judgment against you. The court would then issue a judgment without your input.

Baker Legal Services can help you understand the documents you have been served with and can draft up responsive pleadings to ensure that your voice is heard.

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What is involved in a divorce or a paternity suit?

A divorce is more than just the termination of a marriage. If you have children, the court will need to establish appropriate provisions for the custody, visitation and support of these children. If you and your spouse have acquired property or debts during your marriage, the court will have to decide how to fairly divide this property and debt. The court may also need to consider if one spouse should pay the other maintenance or alimony and if one spouse should cover the other’s attorney fees.

If you were not married to the petitioner, but you have a child with the petitioner, then you were probably sued in a paternity action. In a paternity action, the court must first determine whether one of the parties in the suit is the father of the child.

A divorce or paternity suit begins when one person (the petitioner) files a petition with the court. A petition states the facts which the petitioner intends to prove and requests the court to take some specified action. In order for the court to be able act, the person being sued (the respondent) must be given notice of the suit and have an opportunity to be heard. This happens when the respondent is served. If the respondent takes no action within thirty days of service, the petitioner can ask the court for a default judgment after hearing from the petitioner alone. If, however, the respondent files an answer (a document which addresses the petition by letting the court know which facts are admitted and which are contested), then the court will give the parties sufficient time to conduct discovery, go through mediation and if necessary prepare for a trial.

Discovery is a process whereby the parties can send each other interrogatories (written questions to be answered) and request documents from each other. The discovery process reveals to both sides the evidence supporting each party’s position. It is possible that the parties may want to take each other’s deposition. A deposition is a hearing, typically held in a lawyer’s conference room, where a lawyer can ask questions of a witness under oath in front of a court reporter.

Oftentimes, after discovery has revealed the facts of the case, the parties have a much better picture of each other’s position and motivations. Assumptions and guesses are replaced by facts and evidence. The attorneys will start to get a picture of what may happen at trial. This can lead to the parties coming together and settling the case on their own terms. If the parties cannot reach a settlement on their own, the court will likely order mediation.

At a typical mediation, the parties and the attorneys will meet with a mediator (usually a judge) who will put the parties in different rooms. The mediator will try and work out a deal between the parties. An impartial mediator can speak to the parties in ways that the attorneys who are paid to represent a party cannot.

If after discovery and mediation, the parties cannot reach an agreement, the court will hear each party’s evidence at a trial and will make a decision.

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Can my ex take my kids away from me?

The short answer is no—but a court can.

Your ex can ask the court to award him or her custodial time with the kids on a certain schedule and can present evidence as to why your ex’s parenting plan should be adopted. But you also have that right. If you are served with papers asking the court to accept a parenting plan, you should speak with an attorney right away. If you ignore this paperwork, then the court will hear evidence from your ex alone and will then enter a judgment.

If you and your ex can come to an agreement on an appropriate custody schedule, the court will likely agree to it and enter a judgment to put it in force. If you cannot agree, then the court will hear both sides and make its own decision as to what is in your childrens’ best interest.

At Baker Legal Services we can make your voice heard and help you develop the facts and the evidence to support your position.

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How much will child support be?

Missouri courts calculate a presumed child support obligation based on a court form known as a Form 14 (Form 14 directions here). A Form 14 looks at the income and certain expenses of both parents as well as the amount of time each parent spends with the children and calculates a presumed support amount. The court will presume that the figure calculated by the Form 14 is a fair and appropriate child support amount, but this presumption can be rebutted under certain circumstances.

At Baker Legal Services we can walk you through the Form 14 calculation and provide you an estimate of what the child support may be in your case. We can explain to you how the Form 14 is calculated in light of your personal circumstances.

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How will we divide our property and debts?

In a divorce, property is considered either marital or non-marital property. As a general rule, property which is obtained outside of the marriage is considered non-marital property and property obtained during the marriage is marital. For instance if one spouse stays at home with the kids while the other spouse earns a paycheck, the court will treat the paycheck to be marital property which is owned by both spouses.

The court will allow each spouse to have their own non-marital property and will fairly divide the marital property.

The court will divide debts the same way as it does property—with one important difference. A debt involves a contract between a creditor and a debtor. This may be one or both of the parties. The creditor is not a party to the divorce and is not bound by the court's judgment. For example, if both spouses purchase a house during the marriage and finance the purchase through a bank, both spouses are liable to pay the loan. If the spouses divorce, the court may award the house to the wife as well as the debt on the house. Between the husband and wife, the wife is obliged to pay the mortgage. But if she fails to pay the loan, the bank will go after both spouses because they both signed the loan.

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Can I get maintenance or alimony?

In Missouri alimony is known as maintenance and reflects the duties of spouses to support one another. In certain circumstances, the court may order one spouse to make payments to the other in such an amount as the court deems fair under the circumstances of the case.

For instance, if one spouse stays at home with the kids while the other builds a career, then the court will likely order the spouse with the career to make some payments to the other so that the spouse who stayed at home can have the opportunity to get employment and start his or her own career.

You should keep in mind, however, that the court does not often award maintenance and when it does it often limits the award. If both spouses are healthy and capable of obtaining employment, the court will not likely enter an award of maintenance, but instead will expect that both spouses can meet their own needs.

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My ex is not following the parenting plan. What can I do?

You have a number of options available to you depending on the circumstances of your case. The first option is to speak with the other parent directly and address the issue between the two of you. Perhaps in your case this is not an option, but if it is possible then you could resolve the issue without involving anyone else in your private life. This is typically the best option if it is possible.

If you find that you cannot communicate with the other parent without the conversation turning into an argument, try using e-mail. Verbal communications and text messages permit people to speak what they are feeling as they are feeling it—this is not always the best method of communication. E-mail typically encourages the sender to slow down a bit. Moreover, e-mails can be saved and leave a record of what was said, should it ever become an issue.

Many parenting plans expressly permit law enforcement to enforce the terms of the plan. If your parenting plan includes this language, then you can contact the sheriff’s department or the police department and ask for help enforcing the terms of the parenting plan. An officer would then come out and supervise the ordered custody exchange.

If the parenting plan has already been violated and it is too late to call for law enforcement, then you can file a family access motion. A family access motion tells the court that you have been denied custody or visitation under the terms of your parenting plan without good cause. The court will hear both sides and then enter an appropriate order.

In addition, you may be able to file a motion for contempt. The judgment will most likely order the parties to abide by the terms of the parenting plan. A violation of the parenting plan is a violation of the judgment. If the court finds that a party wilfully disobeyed the judgment without a good reason, then the court has a number of tools at its disposal to remedy the situation and to coerce the disobedient party to follow the judgment.

Finally, you may be able to modify the terms of the judgment if you can show that there is a substantial change of circumstances which would necessitate a change. The other parent’s failure to comply with the parenting plan may constitute a substantial change in circumstances.

If you are having problems with the other parent following the parenting plan, you should meet with a lawyer to discuss your options. At Baker Legal Services, we can discuss your options with you and figure out what would be best in your case.

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How can I change my parenting plan?

In order to change your parenting plan you must first show that a substantial change in circumstances which would require a change to your plan. In other words, what makes you want to change your parenting plan?

If you can show that there is a substantial change in circumstance, you will need to file a lawsuit and have the other parent served. If you and the other parent can agree on a proposed change, then the lawsuit will be nominal. If there is some disagreement, then parties will litigate the case as if it were a divorce or paternity (described here), except the only issues would be whether the parenting plan should be changed and how should it be changed.

If you have an issue with your parenting plan, you should discuss it with an attorney. At Baker Legal Services, we can help you decide whether your parenting plan should be modified or explore other potential options to address your situation.

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