By annulling a marriage, the court makes it so it is as if the marriage never existed from its very beginning. While many states have specific statutes on annulment, Missouri does not explicitly use the term annulments in statutes. Missouri does, however, reference a “declaration of invalidity of marriage” in § 452.300 of the Missouri Revised Statutes.
There are many situations where seeking an annulment (an invalidity of the marriage) is the best choice. One reason to seek an annulment is if the two parties are too closely related. While State v. Bartley widened the interpretation to “half-blood” relations after declaring that an uncle marrying his half-sister’s child was invalid for the closeness of the relationship, this term still does not have a specific definition.
Another reason for a declaration of invalidity of marriage is where one party, or even both parties, already being legally marriage at the time of the new marriage. Thus, in situations where there has not been a proper dissolution of a previous marriage, and the previous spouse is still living, then the new marriage may be declared invalid. However, in Missouri, there is a strong presumption in favor of the second marriage being valid. Accordingly, if party asks for an annulment on these grounds, the burden rests with the moving party to prove that the prior marriage was not properly dissolved.
Other reasons for a court to grant a declaration of invalidity of a marriage in Missouri include a party not having the ability to physically consent to the marriage, an incurable and permanent impotency of one of the parties, the duress of one of the parties at the time of marriage, the insanity of one of the parties, or fraud by one of the parties inducing the marriage.
A separation, unlike an annulment, does not dissolve the marriage. A couple can choose to separate, and live in different locations, without consulting the court. Here, the couple is still married. However, in order to have an order on things such as custody and division of property, a legal separation is necessary. A court will grant a legal separation if it “finds that there remains a reasonable likelihood that the marriage can be preserved and that therefore the marriage is not irretrievably broken.” When a court grants a legal separation, it has the power to rule on all of the issues found in divorce proceedings, like child support, child custody, maintenance, and division of marital property and debt, but will not order that a marriage be dissolved. Some parties will ask for a legal separation as a way to attempt all possible options before resorting to a divorce, but a party is allowed to limit the separation to ninety days. In requesting a legal separation, the petition must set forth:
• The residence of each party, including the residence in Missouri;
• The date of the marriage and where it is registered;
• The date on which the party separated;
• the names, dates of birth, and addresses of each child, and whom the children have primarily lived with for the 60 days preceding the petition;
• whether the wife is pregnant;
• social security numbers of each party and child;
• any current arrangements as to custody and support of children and maintenance of any party; and
Essentially, the goal of a legal separation is to allow the parties to gain perspective on their situation and problems before choosing to dissolve a marriage, encouraging a period of time to resolve differences. Some parties my choose to get legally separated because they are not entirely sure that their marriage is over. Others may not believe in divorce for religious or moral reasons. Missouri case law does not give clear direction in legal separations due to the infrequent and conflicting appellate decisions, so each separation case should be very carefully reviewed.
When a marriage is dissolved by divorce proceedings, the marriage is ended, unlike a legal separation, but the marriage is not void from its conception like with an annulment. While divorces tend to be extremely complex in determining who leaves the marriage with what, divorces can be much easier if the parties do not have children together. When the couple does have children together, custody and parenting plans tend to become very contentious between the two sides.
Courts categorize Missouri dissolution statutes as a “modified no fault” law. In re Marriage of Mitchell explains that in states that adopt the “no fault” law of dissolution, the only necessity for the dissolution of marriage is that the marriage is irretrievably broken. Missouri, however, adds five factors to determine whether the marriage is irretrievably broken when one spouse in the marriage denies that the marriage irretrievably broken and the other claims it is irretrievably broken. One of the following five factors must be met in order to establish that the marriage is irretrievably broken: (1) the petitioner finds it intolerable to live with the respondent, (2) the petitioner cannot reasonably be expected to live with the respondent – usually adultery–, (3) the respondent has abandoned the petitioner for a continuous six months prior to filing, (4) the parties to the marriage have lived separately by mutual assent for a continuous 12 months, and (5) the parties have lived separately, without mutual assent, for a continuous twenty-four months.
B. Advising Clients About ADR Options
Alternative dispute resolution is an option for parties who are considering an annulment, legal separation or a dissolution of marriage. Below are some relevant statutes and rules on Alternative Dispute Resolution in Missouri:
1. Applicable Statutes & Court Rules
RSMo § 452.325 – Separation agreements authorized, effect of – order of disposition of property, when – terms of agreement, how enforced.
1. To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them the disposition of any property owned by either of them, and the custody, support and visitation of their children.
2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support and visitation of the children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation is unconscionable.
3. If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and maintenance in accordance with the provisions of sections 452.330, 452.335 and 452.340.
4. If the court finds that the separation agreement is not unconscionable as to support, maintenance and property:
(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
(2) If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
5. Terms of the agreement set forth in the decree are enforceable by all remedies available decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
6. Except for terms concerning the support, custody or visitation of the children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
RSMo § 487.100 – Mediation, counseling, home study may be recommended.
In any family court case the judge or commissioner may, on the judge’s or commissioner’s own motion or, at the request of a party, order or recommend mediation, counseling or a home study. The costs of such mediation, counseling or home study may be assessed against any party at any time and may be taxed as court costs paid by the party against whom costs are taxed or may be paid from the family services and justice fund established pursuant to § 487.170. The amount assessed for such mediation, counseling, or home study shall be such amount as the court determines to be reasonable under the circumstances. The party’s ability to pay shall be a consideration when such costs are assessed.
** Note: check to see whether your local judicial circuit requires training, notices to litigants about the availability of mediation or any programs established under Rule 88.
Missouri Supreme Court Rule 17.01: Alternative Dispute Resolution – Establishment – Purpose – Definition
(a) Any judge by order or any judicial circuit by local court rule may establish an alternative dispute resolution program as provided in this Rule 17. It is the purpose of the Court through adoption and implementation of this Rule 17 to provide an alternative mechanism for the resolution of civil disputes, except those subject to Supreme Court Rules 88.02-88.08, by means of alternative dispute resolution procedures for disposition before trial of certain civil cases with resultant savings in time and expenses to the litigants and to the court without sacrificing the quality of justice to be rendered or the right of the litigants to jury trial in the event that a settlement satisfactory to the parties is not achieved through alternative dispute resolution.
(b) As used in this Rule 17, alternative dispute resolution programs include, but are not
(1) “Arbitration,” a procedure in which neutral persons, typically one person or a panel of three persons, hears both sides and decides the matter. The arbitrator’s decision is not binding and simply servers to guide the parties in trying to settle their lawsuit. An arbitration is typically less formal than a trial, is usually shorter, and may be conducted in a private setting at a time mutually agreeable to the parties. The parties, by agreement, select the arbitrator or arbitrators and determine the rules under which the arbitration will be conducted;
(2) “Early neutral evaluation,” a process designed to bring together parties to litigation and their counsel in the early pretrial period to present case summaries and receive a non-binding assessment from an experienced neutral evaluation. The objective is to promote early and meaningful communication concerning disputes, enabling parties to plan their cases effectively and assess realistically the relative strengths and weaknesses of their positions. While this confidential environment provides an opportunity to negotiate a resolution, immediate settlement is not the primary purpose of this process;
(3) “Mediation,” a process in which a neutral third party facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties;
(4) “Mini-Trial,” a process in which each party and counsel present the case before a selected representative for each party and a neutral third party, to define the issues to develop a basis for realistic settlement negotiations. The neutral third party may issue an advisory opinion regarding the merits of the case.
(5) “Summary jury trial,” is an informal settlement process in which jurors hear abbreviated case presentations. A judge presides over the hearing, but there are no witnesses, and the rules of evidence are relaxed. After the “trial,” the jurors retire to deliberate and then deliver an advisory verdict. The verdict becomes the starting point for settlement negotiations among the parties.
(c) Each circuit is encouraged to develop other alternative dispute resolution programs that will meet the needs of the parties, the circuit and the community.
(d) All alternative dispute resolution processes shall be non-binding unless the parties enter into a written agreement as provided in Rule 17.06(c). A written agreement shall be binding to the extent not prohibited by law.
Missouri Supreme Court Rule 88.03: Mediation of Child Custody and Visitation Mediation Defined.
Mediation under this Rule 88 is the process by which a neutral mediator appointed by the court, assists the parties in reaching a mutually acceptable agreement as to the issues of child custody and visitation. The role of the mediator is to assist the parties in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator. The agreement reached can resolve all or only some of the disputed issues.
Missouri Supreme Court Rule 88.04: Mediation When Ordered Appointment of Mediator.
(a) The court may order mediation of any contested issue of child custody or visitation, at any time, upon the motion of a party or the court’s own motion.
(b) No investigation and report will be ordered by the court during the pendency of the mediation.
(c) If the court orders mediation under Rule 88.04(a), then the mediator shall meet the minimum qualifications required under Rule 88.05.
(d) The court may appoint a mediator agreed upon. If the parties cannot agree or if the court does not approve the agreed-upon mediator, the court may select the mediator.
2. Case Law:
Bauer v. Bauer, 28 S.W.3d 877 (Mo. App. E.D. 2000): Trial court’s ordering parties to go to mediation prior to filing any subsequent pleadings in proceeding to modify dissolution of marriage decree did not violate the parties’ constitutional right to access the courts, given the rule allowing trial court to order mediation of any contested issue of child custody or visitation provided for termination of mediation at any time after two hours.
Brown v. Brown, 19 S.W.3d 717 (Mo. App. W.D. 2000): Termination of mediation provision in prior child custody decree was proper, given that mediation had not been an effective method for resolving parties’ disputes and given that the statute which stated the joint custody plan may include provisions for mediation of disputes in all cases did not require any provision for mediation of disputes.
3. Weighing Your Options – When is alternative dispute resolution appropriate?
Advantages: Parties can participate in alternative dispute resolution prior to filing. This allows both sides to ascertain the strengths and weaknesses of their positions. Especially in the context of dissolution where child custody and support are at issue, alternative dispute resolutions may help the parties to avoid increased animosity that sometimes results in court proceedings. Participating in mediation or arbitration may result in the parties forgoing proceedings in a formal court setting altogether. A skilled mediator may be able to suggest alternatives and achieve a settlement when it was otherwise thought impossible. The financial costs to the parties may also be reduced if they are able to reach a settlement. Overall, the parties involved in the alternative dispute resolution have more control over the pace and nature of their issues than they might be afforded in the court system.
Disadvantages: As outlined in Rule 17, the agreements reached by the parties may not always be binding. Therefore, the parties may expend a great deal of time and resources and still walk away without their issues settled. Because the parties are allowed to dictate the pace at which these resolutions go on, it could be a lengthy amount of time before a final decision is reached. Additionally, if the parties are so far apart in their settlement goals, alternative dispute resolution may not be fruitful. There are also concerns as to whether parties who are on lesser ground as far as finances, education or sophistication will be more easily manipulated into unfair settlements than if the parties participated in formal court proceedings.
Prepare you client: Before your client enters into mediation or arbitration let them know what to expect. While a good mediator will explain his or her own ground rules, it is a good idea to educate your client prior to arrival. Make sure in the case of mediation that they understand they do not have to agree to everything or anything.
4. Collaborative Family Law:
Collaborative Family Law is a growing way to provide alternative dispute resolution to parties. Collaborative Family Law provides a diverse group of independent professionals, including attorneys, financial advisors, and mental health professionals, who can help work together to try and resolve a case. Co-parenting professionals can also be on hand to deal with the emotional and practical aspects of custody and shared parenting. In St. Louis, there is an organization called the St. Louis Collaborative Family Law Association that can provide you more information about services. The advantages and disadvantages to collaborative family law are roughly the same as mediation.
C. Jurisdictional Considerations, Case Filing and Service of Process
Below is the relevant on procedure and venue in divorce:
RSMo § 452.300.5 – Procedure and Venue:
An Original proceeding pursuant to sections 452.300 and 452.415 shall be commenced in the county in which the petitioner resides or in the county in which the respondent resides. If an original proceeding is commenced in the county in which the petitioner resides, upon motion by the respondent filed prior to the filing of a responsive pleading, the court in which the proceeding is commenced may transfer the proceeding to the county in which the respondent resides if:
(1) the county in which the respondent resides has been the county in which the children resided during the ninety days immediately preceding the commencement of the proceeding; or
(2) The best interest of the children will be served if the proceeding is transferred to the county in which the respondent resides because:
(a) The children and at least one parent have a significant connection with the county; and
(b) there is substantial evidence concerning the present or future care, protection and personal relationships of the children in the county.
As § 425.300.5 states, divorce proceedings will generally occur in the county in which the petitioner resides. If, however, the children have resided with the children for the ninety days before the proceeding, then the respondent can have the venue moved to that county. In addition, when a change of venue would be best for the child, a court is likely to grant a change of venue. The term “resides” in this statute has been interpreted to be the same as a person’s domicile, which includes the location where a person has their true and permanent home and the place that person always intends to return when absent. When filing in Missouri, one of the parties must be a resident of the state, or have been a member of the Armed Services and stationed in that state for the 90 days preceding the filing or, otherwise, the state will not have jurisdiction over the proceeding. In situations where both parties reside in the same state, and both file petitions in different counties, Missouri courts have established that the jurisdiction invoked by the first filing, not first service, will usually have the authority to proceed. However, a motion for change of venue still may work when appropriate (as set forth above).
In addition to whether a specific county or venue has jurisdiction, there are also situations where a judge may or may not have jurisdiction over the case. In State ex rel. Moore v. Sharp, one party attempted to prohibit a judge from taking further action in a dissolution of marriage proceeding because the circuit court case involving the dissolution of marriage was dismissed. The previous case was dismissed under a Commissioner in conjunction with a disagreement over an administrative agency’s orders. In the end, the court determined that a drug court commissioner did not have the authority to rule in family law matters and, therefore, did not have jurisdiction to dismiss the case.
For paternity cases involving unmarried parents, venue in Missouri is determined solely by statute. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991). Section 210.829.4 RSMo 1994 is the venue provision of Missouri’s Uniform Parentage Act. It provides, in pertinent part: “An action brought under sections 210.817 to 210.852 may be brought in the county in which the child resides, the mother resides, or the alleged father resides. . . .” In construing this statutory provision Missouri courts have held that it assigns no venue preference or priority, as among the three potential venue sites in which such an action may be filed. State ex rel. Mary Renee Palmer v. Goeke, 8 S.W.3d 193 (Mo. App. E.D. 1999).
In Missouri, both parties need to be aware that dissolution of marriage proceedings, or a paternity case, is occurring through proper service. When serving a petition within Missouri, any person over the age of 18 years who is not a party to the action is allowed to serve a party. A sheriff is also allowed to act as a process server if necessary. Personal service in the state for an individual should be made upon the individual by delivering a copy of the summons and petition personally to the individual. Leaving a copy of the summons and petition at the individual’s dwelling house or place of abode with a person in the family over the age of 15 is allowed. In addition, a person can serve an individual by delivering a copy of the summons and petition to an agent authorized by appointment, or required by law, to receive service of process. All process issued for service within Missouri can be personally served anywhere within the state.
In situations where service must be processed outside of the state, it shall be made by a person authorized by law to serve process in civil actions within the state that such service is made. In most states, any person over 18 years old and not a party to the action is authorized by law to make service. A person may also be appointed by the court in which the action is pending to serve the out of state party. The party being served may acknowledge service by mail. Proper service is imperative in all cases, including annulment, separation and dissolution of marriage cases because improper service can invalidate a ruling, like in Reisinger v. Reisinger, where a husband did not properly serve his wife, and therefore the case had to be reversed and remanded because no personal jurisdiction could be had without proper service.
D. Case Information Statements
All Courts require a filing sheet for every civil, domestic relations and probate cases filed. For family law matters, they are called a Confidential Case Filing Information Sheet – Domestic Relations Cases (see sample in the Appendix and hereinafter referred to as “Confidential Case Filing Information Sheet”). A Confidential Case Filing Information Sheet should be filed with every divorce or paternity proceeding. This sheet will reflect the case type as well as contain the following information for each party, including party name; date of birth; social security number; employment information and information about the children. The responsibility lies with the parties to complete these sheets, and each party much make a reasonable effort to provide full and proper information. These sheets are confidential records, and in domestic relations cases the filing information will be sealed and filed separately from all other civil and probate cases.
E. Emergency & Preliminary/Temporary Orders
Temporary Custody and Child Support
The general statute in Missouri regarding temporary custody states, “a party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit. The court may award temporary custody after a hearing or, if there is no objection, solely on the basis of the affidavits.” Additionally, if a proceeding for a dissolution of marriage or legal separation is dismissed, all temporary custody orders are vacated unless the court, after a hearing, believes that circumstances and the best interest of the child align with keeping a custody decree. Thus, if one parent asks for temporary custody of the child during the divorce process, they must do so with an affidavit in support, and the court can only rule based on affidavits if the other party does not wish to present evidence inconsistent with the affidavit. However, the granting of temporary custody by affidavit is extremely rare. Generally, a hearing is required unless the parties can enter an agreement by consent.
In Cole County, as an example, a court may choose to enter a temporary custody order or support order pendente lite without the necessity of a formal hearing per local rules. The order is entered upon the filing of the application and effective after service. However, the order cannot be executed until thirty days after service. Suggestions and affidavits can be filed in opposition to the motion for the court order. An oral hearing may be requested on issues that arise by the motion pendente lite, but the request will not suspend or delay of the obligations and rights under the order pendente lite. Please be sure to see the local rules in your locality.
The same process applies to asking for temporary child support where a request must be accompanied by an affidavit, and the respondent may choose to demand a hearing to present evidence inconsistent with the affidavit. In addition to the stipulations set forth in asking for temporary custody, a temporary support motion must also have the amount requested backed by factual basis for that amount. When determining custody of the child, even temporary custody, the court must look factors, including:
• The wishes of the child’s parents, as well as the proposed parenting plan submitted by both parents;
• The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
• The interaction and interrelationship of the child with parents, siblings and other persons that may significantly affect the child’s best interests;
• Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
• The child’s adjustment to the child’s home, school and community;
• The mental and physical health of all individuals involved, including any history of abuse.
• The intention of either parent to relocate the principal residence of the child; and
• The wishes of a child as to the child’s custodian.
Missouri statutes also indicate that temporary child support can be ordered in paternity cases: “The
court shall enter a temporary order requiring the provision of child support pending the final judicial determination if there is clear and convincing evidence establishing a presumption of paternity pursuant to section 210.822. In determining the amount of child support, the court shall consider the factors set forth in section 452.340.”
Temporary Spousal Maintenance
In a dissolution of marriage that is not asking to invalidate the entire marriage, and in a legal separation, either party may ask for temporary maintenance while the proceedings are still pending. The purpose of temporary maintenance is to maintain the status quo pending a final judgment. Temporary spousal maintenance can be awarded pendente lite, even retroactively, but do not hold the same weight as the final judgment will. In determining if a spouse needs maintenance, the courts looks to see if the spouse seeking maintenance either lacks sufficient property, including marital property apportioned to him, to provide for reasonable needs; or is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. If this is applicable to the spouse, then the maintenance order shall be in such amounts and time periods as the court determines, considering factors such as:
• The financial resources of the party seeking maintenance, including his ability to meet his needs independently, including the extent to which a provision for support of child with the party includes a sum for the party as custodian;
• The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
• The comparative earning capacity of each spouse;
• The standard of living established during the marriage;
• The obligations and assets apportioned to each party;
• The duration of the marriage;
• The age, and physical and emotional condition of the spouse seeking maintenance;
• The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
• The conduct of the parties during the marriage; and
Temporary Exclusive Occupancy of the Marital Home
During divorce proceedings, one party may ask a court to grant temporary exclusive occupancy of the marital home. One reason a party may be granted exclusive rights to the marital home is to give that party a place safe from physical or emotional abuse. In general, if there are no special circumstances, a court will treat the marital home as any other asset to be split among the parties. One of the most common special circumstances is if there is a minor child that will be harmed by losing his family home, especially at the same time as the rest of his family is breaking down. Another situation where a court may see fit to grant temporary exclusive control of the marital assets is when one spouse is disabled. A disabled spouse will have a difficult time finding, affording and adapting to a new residence, especially since it is likely that the marital home has already been modified to the specific disability. Further, a special situation that may occur is that one spouse has abused the other during the marriage. The courts will want to keep the parties apart in order to keep the abused party safe. In these instances, the burden will fall to the abuser to find a new residence and leave the marital home as a refuge of sorts to the abused. Other situations that may occur that will lead to the granting of temporary exclusive rights to the marital home during divorce proceedings include one party needing the home to maintain their business set up in the house, and an already established third party, like an elderly parent or disabled relative, that cannot be easily moved from the house. These temporary orders allowing exclusivity of the marital home will become void when the marriage is officially dissolved in favor of a permanent ruling by the court.
Orders of Protection / Restraining Order
A party may be enjoined from “transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life …” If such an order is obtained, a party may also obtain an order that will require the restrained party to account for all extraordinary expenditures made after the order is entered. The affidavit that accompanies this motion should clearly specify the factual basis for the motion. Statements that are mere suspicions or fears are not sufficient. Sufficient facts should be alleged and proved “that a transfer is actually threatened and that it would prejudice a valid claim to the property by the moving party.” Local court rules also explicitly prohibit this in many counties. For example, the St. Louis County Circuit Court specifically does so in Local Rule 68.3.
A party may be excluded from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result. Where there have been past acts, or it may appear there will be future acts of violence or harassment, a party may be enjoined from harassing, abusing, molesting, or disturbing the peace of the other party or of any child. An ex parte restraining order may be issued if irreparable injury would result to the moving party if an order were not issued until the time for answering had elapsed. This order should state the date on which a hearing will be held, and when a party may file an answer to this ex parte motion.
The adoption of the Adult Abuse Act created a very powerful tool for those adults who have been abused or have been threatened with abuse by a spouse or other adult household member. An ex parte order of protection is available upon a showing that any immediate and present danger of future abuse exists. Temporary relief available under the Act includes:
• Restraining the respondent from abusing, threatening to abuse, molesting, or disturbing the peace of the petitioner;
• Restraining the respondent from entering the premises of the dwelling unit of petitioner when the dwelling unit is:
o Jointly owned, leased, or rented and jointly occupied by both parties;
o Owned, leased, or rented by petitioner individually;
o Jointly owned, leased, or rented by petitioner and a person other than respondent; or
o Generally occupied by the petitioner and a person other than the respondent, provided, however, that the respondent has no property interest in the dwelling unit; or
If a temporary order of protection is granted by the court, it will terminate upon the dissolution of marriage or the legal situations, except for provisions that require a respondent to attend court-approved counseling program or that enjoin the respondent from committing acts of domestic violence against the petitioner while petitioner rightfully remains in a dwelling.
Temporary Restraining Orders and Habeas Corpus
A temporary restraining order (TRO) prevents irreparable injury. In some cases, there could be a concern as to custody or assets that could necessitate a TRO. TROs consist of a three-step proceeding consisting outlined in Rule 92 and Chapter 526, RSMo:
1. A temporary restraining order may be issued by the court at the request of the plaintiff without notice to the other party only if the plaintiff can show that immediate and irreparable injury or loss will result before the opposing party can be heard and only if it is shown that efforts have been made to notify the other party. A temporary restraining order issued without notice is good for only ten days, unless extended by the court.
2. A preliminary injunction then may be issued after appropriate notice to the defendant and after a hearing. Both the temporary restraining order and the preliminary injunction are intended to preserve the status quo until a full hearing can be had on the merits of the case.
a. Neither a temporary restraining order nor a preliminary injunction can be issued until the plaintiff posts a bond approved by the court for the payment of damages and costs if the temporary restraining order or preliminary injunction is later dissolved.
3. After a final hearing, a permanent injunction may be issued. An injunction must be specific in its terms, and is binding only on the parties, their officers, agents and employees and persons in active concert or participation with the parties who have actual notice of the injunction.
A petition of habeas corpus can be used in some cases to stop a parent from fleeing with a child after divorce or custody proceedings have begun. The petition of habeas corpus is a way for a party to get the child ordered back to the state.
There are samples of both a TRO and petition of habeas corpus in the materials at the end of this packet.
Interim Awards: Counsel Fees, Appraiser/Expert Fees
A court may choose to grant attorney fees prior to the end of the marriage to provide support for the spouse that needs it, and to do so at the expense of the spouse that can afford to provide it. The court can order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceedings and for attorney’s fees, including sums for legal services rendered and costs incurred prior to commencement of proceeding and after entry of a final judgment. In a pendente lite action, the court can award attorney fees on account, and these fees are within the trial court’s discretion. In Costley v. Costley, the husband was awarded only twenty-three percent of the marital assets, a large portion of the marital debts, and had to pay child support. In addition to all of this, he also had to pay for the wife’s attorney fees, and the court ruled that this, even in concurrence with all of the other rulings, was still soundly in the discretion of the trial court. If asking for attorney fees or other legal related fees, counsel should be prepared to describe to the court in detail the attorney fees and costs occurred to date, and should provide a reasonable schedule as to what the anticipated attorney fees and costs will be, including things such as expert witnesses and appraisals.
F. Potential Procedural Pitfalls
Pre-trial motions can be filed in between the time when a divorce petition is filed and when the final hearing on the divorce occurs. Request for temporary orders are often filed simultaneously with the divorce petition. Sometimes, however, they are filed after as the case progresses. There are both advantages and disadvantages to filing pre-trial motions. The filing of pre-trial motions can increase the cost of divorce, which can lead to a financial burden for the party with fewer resources. On the other hand, the advantage to pre-trial motions is having some things decided temporarily on important issues that otherwise need to be resolved. In other cases, important discovery may need to be obtained that can only be obtained through filing motions to compel and/or motions for sanctions. A motion in limine can also be warranted in many cases as it relates to the presentation of evidence at trial. There are also temporary motions that may need to be considered, like a motion for a guardian ad litem pursuant to Section 452.423 where abuse or neglect is alleged, a motion for a protective order and countless other motions allowed by rules of civil procedure. As referenced above as well, a pendente lite order for example can help resolve matters while a divorce is pending such as the custody and support of the children, spousal support, payment of property and debts, temporary attorney’s fees and other important issues. This can help ensure peace and order is maintained while the case is pending.