Frequently Asked Questions About Divorce
We’re married and have a house in both of our Names, but one of us made most of the payments. How will the house be divided?
Because the house is in both names, it is marital property. Mortgage payments by only one spouse still increase the value (equity) in the house for both spouses.
The house was in my spouse’s name before we married. Am I entitled to any of it?
If the house was later transferred into both names, it is legally presumed to be marital property – owned by the couple as a whole. If the title was never changed, then courts examine the source for increases to the value of the house – mortgage payments that increased equity, or physical improvements. For example, if either spouse used money earned from wages during the marriage to pay down the mortgage, the accompanying increase in equity could qualify as a marital interest to be used in dividing property. This is the most common example of property being considered as quasi-marital, meaning a portion of it will be treated as marital property for division between the parties.
I worked for several years after we got married, and then quit to be a stay-at-home parent. My spouse made most of the money. How will the court treat our case?
The law treats marriages as unique partnerships. Your work in raising the children is no less important than your spouse’s work in providing financial support. The courts most often treat property acquired during the marriage as marital property. (The few exceptions include bona fide gifts to one spouse only; inheritances; and specialized increases in the value of formerly nonmarital property not due to the efforts of the other spouse, such as stock prices.) In addition to dealing with property, court will allocate marital debt pursuant to several factors. Courts will establish support orders for any minor children (or children in college or specialized trade schools). In this particular case, since you left the work force to raise your children, you probably qualify for maintenance. Depending on your age and other circumstances (e.g., the amount of income-producing property awarded to you), you probably qualify for either permanent or rehabilitative maintenance.
My spouse racked up a lot of debt. Am I responsible for any of it?
There are two aspects of this. First, regarding third-party creditors: You are only responsible for debt you sign on for. Second, regarding a divorce: The court will only allocate debt between the parties. It will not involve third-party creditors. For many cases, courts will allocate debt to the spouse that incurred it. If the spouses incurred it together, courts will often direct that each party pay a portion, often (but not always) half. If debt is tied to a certain asset such as a car, it is common for the party that gets the asset to also get the debt. In certain circumstances, the court will order one spouse to pay a debt that was incurred solely by the other spouse. This happens, for instance, if the debt was incurred for an important marital purpose; or if the parties both benefitted from something related to the debt and one party is in a financially superior position.
I just found out that my spouse didn’t pay taxes and now the IRS is coming after me. What can I do?
As with other debts, there are two aspects of this as well. First, the court has no authority to order the IRS to do anything. The court can order the parties, as between themselves, to pay designated portions of a tax debt. The court will consider a number of factors as to whether this portion should be equal, disproportionate or even 100% on just one spouse. The IRS may elect to collect from each spouse in relation to what the court ordered, but it is not required to. But, if the IRS elects not to follow the court’s allocation and collects more from one spouse, that spouse may then proceed against the other for reimbursement. These can be complex matters that require capable counsel.
Second, regarding the IRS: A spouse who faces a tax liability not of his or her own making (such as when a self-employed spouse had control of a business and didn’t file taxes properly), may apply for what is known as “innocent spouse relief.” Dan Pingelton has worked with accountants and other tax experts to secure innocent spouse relief discharges for hundreds of thousands of dollars for clients who had no idea taxes were not being paid.
I have a valuable retirement plan from before I was married. Will my ex get any of it?
Generally, the vested portion of the plan before marriage is yours alone. Contributions to the plan subsequent to being married (generally from wage deductions) are considered marital property. There are some exceptions, such as retirement accounts for teachers. The valuation of the marital portion of the plan (if any) depends on several technical factors.
What is joint custody? Is it the same as 50/50?
Please see the discussion for Child Custody & Visitation. Nonexperts are using the phrase “50/50” often these days. We believe the term “50/50,” while helpful if it refers to equal or nearly equal parenting time, can also lead to a diluted analysis of a beneficial parenting plan. Historically from about 2010, an increasing number of parents who are or shortly would be paying child support began to believe that if they got “50/50” custody, they would pay little or no child support. This urban myth probably originated from the Web. Unfortunately, it also found its way into the erroneous calculations of child support obligors – aided by online calculators or other untrained persons. The problem is that these calculations are almost always wrong. (See Child Support) At Pingelton Law Firm, we prefer to analyze custody arrangements by what is best for the child, and workable for the parents – because this is what most experienced family court judges do. If “50/50” means equal parenting time because that is what is best for your child, then by all means, we’ll talk “50/50” all day. But we have litigated cases against parents demanding “50/50” when they sadly have no history of that, or ability to do that in the future. Instead, they simply want to lower their child support without doing what’s best for their child. The phrase “50/50” thus sometimes carries a negative connotation, and we prefer other terms, such as “equal parenting time.”
Can I get maintenance, or what used to be called “alimony”?
Please see the discussion for Maintenance. This is a very fact-specific issue. Longer marriages and greater discrepancies in earning capacity usually increase the propriety of a maintenance award.
I cheated on my spouse. Will this hurt me in my divorce?
As mentioned above, courts treat marriages like unique partnerships. The law on this particular issue is that if an act of infidelity damages the partnership, the court may consider this damage and take it into account when fashioning a final judgment. Honestly, infidelity is usually a result and not a cause of marital problems. The manner in which courts treat marital infidelity varies greatly between the particular judge. Years ago, a kind and sensitive judge in a rural, northern Missouri county had what he called the “ten percent rule.” Meaning, if you cheated on your spouse, it will cost you ten percent of the total value of marital property. During this same time, another well-qualified judge in a rural, southern Missouri county would sometimes say: “I don’t care who’s f____ who.” Most courts understand the extremely personal nature of these matters and go to great lengths to fashion fair results for the parties so these matters are kept from the public record.
Dan Pingelton has represented all sides in these types of cases. He’s counseled serial philanderers to clean up their act when children are involved. He’s helped betrayed spouses understand the difference between poor conduct toward a wife or husband and the need to buffer some things from young children. He’s kept marital assets of hardworking spouses from being unfairly diminished under threat of revealing marital affairs. These are sensitive matters that need to be handled appropriately, and especially privately, away from prying eyes and public record.
My ex said he/she was going to file for bankruptcy. What will this do to me?
The biggest problem from one spouse filing for bankruptcy is often the practical concern that joint debts will be reported to credit agencies. Nonfiling spouses will need to spend time contacting various entities to ensure their names are not tied into a bankruptcy filing. They will also need to ensure the entire debt is paid. This can be a real problem for larger debts, when both incomes are necessary for timely payments. Dan Pingelton can suggest steps to take within the divorce action itself to ameliorate damage caused by a single bankruptcy filing.
We were never married. How will this affect our child if we break up?
Please see the discussion for Paternity. As noted, it is very important to speak to an attorney and get an appropriate parenting plan in place as soon as possible – ideally, even before a breakup, but certainly soon thereafter.
Is Missouri a “no-fault” state?
Yes, but you may think this means something else. The term “no-fault divorce” originated years ago when many states changed their laws to allow divorce without a showing of “fault,” such as adultery, abandonment, abuse or other things. Today, people can get divorced simply because they don’t want to be married anymore. They do not have to prove their spouse is “at fault.” (Missouri does require a modest residency period prior to divorce.)
“Fault,” meaning bad conduct, can be a relevant factor in the division of marital property, allocation of marital debt, maintenance and attorney fees. Poor conduct ranges from mild indiscretions that are usually ignored by courts, to major problems that figure prominently into the final result. For example, rudeness will be excused (and you’ll probably be happy to be rid of the person). Infidelity may or may not be an issue [see above]. Substance abuse will be a problem, depending upon the severity of the effects upon the family. Physical abuse will be a serious problem.