Divorce can be complex and is a highly emotional time in any person's life. So much is changing, and things may be rather confusing. As you enter into the divorce process you will have a great many questions.
Here, experienced Missouri divorce attorney Joshua Wilson answers frequently asked questions about the divorce process. During this stressful time, you do not have to go it alone.
The Divorce Process
How long does the divorce process usually take?
How long the divorce process takes typically depends on the type of divorce filed. An uncontested divorce means that you and your spouse are able to agree on everything, including child custody and property distribution. A decree is filed with the court, and the divorce is finalized. Uncontested divorces can happen in just a few short months or can be longer depending on the circumstances.
A contested divorce will take longer. Motions must be filed, discovery must be conducted, and a possible trial could occur. A contested divorce will take several months, or a year or more depending on how complex the case is and how many disagreements exist between the parties. If the case must go to trial, the process can take even longer.
Will I really have to go to trial to get my divorce?
You do not always have to go to trial to get a divorce. In fact, in uncontested divorces, a trial is usually unnecessary. When the parties can agree to all of the terms of the divorce, and put that agreement in writing, the court can accept the agreement of the parties without a trial.
If you and your spouse cannot agree on certain terms, those issues will have to go to trial. At the trial, you will both present evidence, make arguments, and call witnesses. Ultimately, the court will have to make a decision about the issues raised at trial.
What happens if I contest the divorce?
If you wish to contest the divorce because you want to remain married, you can refuse to agree that the marriage cannot be saved. In Missouri, a court is required to find that a marriage is "irretrievably broken, and there is no reasonable likelihood the marriage can be preserved."
If one spouse refuses to agree that the marriage is "irretrievably broken," the court must consider certain factors and make its own determination about whether the marriage can be saved. If the court finds that the marriage is irretrievably broken, it can grant the divorce over the spouse's objection. For more details, on what the court will consider, visit my blog here.
Where does mediation fit into this process?
Mediation is a separate process that allows the parties to attempt to work out their differences to agree on certain terms of the divorce. It is conducted by a neutral third party who promotes settlement and agreement when possible. This is especially popular when attempting to work out a parenting plan when children are involved. Mediation can occur as the result of a court order or the parties' request.
Can mediation still work if the parties do not get along?
Mediation can be effective even when you and your spouse do not get along or have trouble communicating. Mediation is run by a neutral third party whose job it is to conduct reasonable discussions that are not based on emotion.
Participants in mediation also learn resolution skills with the mediator's guidance. Mediators are trained to look for common ground and foster improved communication during mediation. Even when you think it will be impossible to agree on anything, mediation can help resolve differences and create settlement. Mediation often helps solve all of the disagreements between parties. If not all of the issues are settled, at least there is less to dispute before the court.
Can I consult with other professionals or an attorney during mediation?
You are allowed to consult with professionals and your attorney during a mediation. Having an attorney present will often make you feel more comfortable that you are making the correct decision on any agreement and that you are not being taken advantage of. An attorney can also explain the risk and benefits to any decision reached at mediation.
Other professionals can be involved as well. This may include tax professionals, accountants, mental health professionals, child-welfare professionals, or others.
The concept of a collaborative divorce has become increasingly popular, in which a diverse group of professionals meets to help resolve unsettled matters.
Is mediation confidential?
Anything said or discussed during mediation is confidential. This allows the parties to be open and honest without any fear of legal or emotional repercussions. Openness and honesty in mediation typically lead to results that could not before be expected.
Any information discussed between you and the mediator can be made confidential, or you can choose to allow a mediator to share information with your spouse. You control the flow of information in a way that will hopefully resolve differences.
Information is also confidential from the court. Details learned while in mediation cannot be used in court unless that information is independently discovered outside of mediation. This allows you to attempt to resolve issues, without fear that your settlement attempts will be used against you later if you go to trial.
Does mediation guarantee a settlement?
Just because you participate in mediation does not guarantee that a settlement will take place. Nothing that takes place at mediation is necessarily binding on the parties unless the full agreement is signed and approved by the court. Mediation is intended to foster agreement, but it cannot guarantee it.
Child Custody & Visitation
What do I do if we cannot agree on a parenting plan?
A parenting plan is an important part of figuring out child custody arrangements for during and after your divorce. When the parties cannot agree, there are a few roads that can be taken to determine child custody.
Ideally, the parents can agree to a parenting plan, which is then submitted to the court for approval. When this is not possible, the court is required to examine certain factors in determining what custody arrangements are in the child's best interests. The court will make these findings and impose a parenting plan that decides the issue of child custody.
How do I prove the other parent is unfit?
Proving another parent is unfit to have custody of the child requires evidence that it would not be in the child's best interest to be with that parent. Preventing contact of any kind is very difficult, but maintaining custody of your child is possible with certain proof. You may be able to show that
- the other parent is an alcoholic;
- the other parent is addicted to drugs;
- a history of child abuse (whether verbal, physical, or emotional);
- the other parent is mentally unfit to parent (i.e. mental illness or cognitive disability); or
- the other parent's home or living situation is unfit for children.
This can be very fact dependent, so if you have concerns about the other parent's fitness for custody discuss these issues with your divorce attorney.
What do I do if my former spouse refuses to pay child support or alimony?
If your former spouse refuses to pay you the child support that is ordered by the court, the payments can be enforced by the Missouri Department of Social Services. It can use multiple methods to enforce payment, including garnishing wages or intercepting income tax refunds. Your attorney can help you with this process.
If your former spouse denies you court-ordered spousal support (alimony), you can file a motion with the court to enforce the payment. Many of the same methods used to collect unpaid child support can be used to collect unpaid alimony.
What do I do if my spouse is keeping my children from me?
Parents are required to abide by the custody arrangements set by the court. If a parent interferes with another's right to custody, the aggrieved parent can file a motion for family access or a motion for contempt. Family access motions ask the court to enforce the terms of the custody arrangements, while contempt motions seek punishment of the offending parent.
What happens if I have to move?
If you have to move and want to take your child with you, this is considered a major change and specific legal steps have to be taken. You cannot just take your child and go. If both parents agree to the move, these new arrangements can be put down in writing and be approved by the court through a post-decree modification.
If you want to move, you must inform the other parent at least 60 days in advance by certified letter, and you must include very specific information in the letter. The other parent only has 30 days to object to the letter. There are strict legal requirements a court must consider before granting the motion, but with the help of experienced legal counsel, you can put your best foot forward in proving your case.
Consult a Missouri Divorce Attorney
Divorce can be complicated, but it does not have to be a difficult experience when you have an experienced Cass County divorce attorney like Joshua Wilson. Contact the Higher Level Legal Law Firm today at (816) 331-9968 for a consultation.