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Reasons to Include Fault in Your Missouri Divorce Case

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In order to obtain a divorce in Missouri, it is not necessary to prove that either spouse is at fault for the breakup of the marriage. “Fault” can refer to misconduct by a spouse, such as adultery or abandonment, separation for an extended period of time, or other evidence showing that the marriage cannot continue. A court only has to determine that the marriage is “broken,” and that there is no reasonable chance that the spouses will reconcile. This is known as a “no fault” divorce. Every state now allows no-fault divorce, although the requirements vary greatly from state to state.

Missouri is a modified no-fault divorce state. Evidence of fault is not required merely to get a divorce, but it could be relevant to specific parts of a divorce case, such as property division and spousal maintenance. A divorce attorney with knowledge of Missouri law and the family court system can help you understand whether fault should be part of your divorce case.

What Is No-Fault Divorce in Missouri?

Under Missouri law, a court can only grant a divorce if it finds that the parties’ marriage is “irretrievably broken,” meaning that “there remains no reasonable likelihood that the marriage can be preserved.” If a court does not reach this conclusion based on the evidence, it could refuse to grant a divorce, or it could enter a judgment of legal separation.

The standard of evidence to prove that a divorce is “irretrievably broken” is not too difficult to meet. It is often enough that one spouse has filed for divorce, and the other spouse does not deny that the marriage is broken. Few people involved in Missouri divorce cases argue over whether the marriage can be preserved. They usually move on to issues like marital property or custody of the children.

Fault vs. No-Fault Divorce

Some states still allow a person filing for divorce to allege fault-based grounds for divorce. Missouri is not among those states. There could be reasons to seek a “fault divorce” instead of a no-fault divorce under other states’ divorce laws. Fault-based grounds for divorce might include:

  • Adultery;
  • Abuse or other cruel treatment;
  • Abandonment by one spouse, usually for a period of at least one year;
  • Drug or alcohol abuse;
  • Conviction of certain criminal offenses, especially if the conviction results in a lengthy prison sentence; and
  • Impotence or lack of consummation of the marriage.

The spouse who alleges fault in the marriage has the burden of proof. Someone alleging adultery, for example, must produce evidence of this in court. Needless to say, anyone who hopes for an uncontested divorce probably does not want to go through the process of alleging and proving fault. Now that no-fault divorce is available in all fifty states and the District of Columbia, it is possible that fault divorces will become relatively rare.

In Missouri, no-fault divorce is the only option. That does not mean that evidence of fault has no place in a Missouri divorce.

When Fault Can Be a Factor in a Missouri Divorce

While Missouri law does not use the word “fault” anymore, the concept still appears in some divorce cases. Evidence of conduct or situations once known as “fault” may be relevant, or even necessary, in certain situations.

One Spouse Denies that the Marriage Is “Irretrievably Broken”

The spouse who did not file for divorce (the “respondent”) has several options when they receive the divorce paperwork. They can:

  • File a counter-petition for divorce;
  • State under oath that the marriage is “irretrievably broken”;
  • Take no position on whether the marriage is “irretrievably broken” or not; or
  • Deny under oath that the marriage is “irretrievably broken.”

If a respondent chooses to deny that the marriage cannot be preserved, the other spouse (the “petitioner”) must produce evidence of one of the following:

  • The respondent committed adultery;
  • “The petitioner cannot reasonably be expected to live with the respondent” because of the respondent’s conduct;
  • The respondent abandoned the petitioner for at least six months; or
  • The parties have lived apart from one another by mutual agreement for at least twelve months, or without mutual agreement for at least twenty-four months.

Property Division

State law directs courts to divide marital property and debt equitably between the parties. “Equitable” is not the same as “equal.” Among the factors courts may consider when deciding how to divide property and debts is “the conduct of the parties during the marriage.” Misconduct by one spouse could lead a court to award a greater share of marital property to the other spouse.

Spousal Maintenance

Missouri uses the same language — “the conduct of the parties during the marriage” — in its list of factors for a court to consider when deciding on the amount and duration of spousal maintenance. A court might order a spouse to pay more in spousal maintenance because of some form of misconduct, or it might reduce the amount that might otherwise be paid to a spouse.

When Fault Is Not a Factor in a Missouri Divorce

Evidence of actions or situations that were once considered fault under Missouri law is of limited relevance, or no relevance, in the aspects of a divorce involving minor children.

Child Support

Missouri law makes it clear that fault is not relevant to child support determinations. The purpose of child support is to provide for children’s care, not to punish a parent. The law therefore states that courts should determine child support “without regard to marital misconduct.”

Child Custody and Visitation

The most important factor in decisions about child custody and visitation is “the best interest of the child.” Evidence of fault can be relevant to custody and visitation decisions, but only to the extent that it affects the child. As with child support, a court cannot use custody or visitation as a form of punishment for a parent.

A court can restrict custody rights based on a “history of abuse” or “pattern of domestic violence,” if it concludes that doing so is in the child’s best interest. It can restrict visitation rights for similar reasons. State law directs courts not to allow visitation with a parent who has certain criminal convictions. Beyond these considerations, fault should not be a factor in custody and visitation decisions.

Mark A. Wortman is a family law attorney who practices in the Kansas City, Missouri area. He focuses his practice exclusively on divorce and related matters, such as child custody and child support. Please contact us today online or at (816) 523-6100 to schedule a confidential consultation with an experienced and skilled legal advocate.

Categories: Divorce
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