Articles Posted in Property Division

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1courtscovid-300x202Effective May 16, 2020, the Missouri Supreme Court’s Order established a four (4) phased plan to reopen courthouses across our State.  This operational directive applies to all State Courts in Missouri and explains the criteria for  how all 46 judicial circuits in Missouri will reopen access to staff, attorneys and the general public.

The four (4) phases transition from the most restrictive (phase “0”) to the least restrictive (phase “3”).  The highlights of the Court’s order are as follows:

In phase “0”, which courthouses across Missouri have largely been operating under since the original Order from the Missouri Supreme Court on March 16, 2020 , all in-person hearings are restricted or prohibited, with few exceptions, such as emergency matters dealing directly with the safety of individuals and proceedings necessary to protect certain constitutional rights of criminal defendants.

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pension planIn today’s blog we discuss the consideration of future pension benefits in the division of marital property in Missouri Family Courts.

In previous blogs, we have addressed the entitlement of divorcing spouses to retirement benefits accumulated during the marriage.  In circumstances when the parties have accumulated, during the marriage, savings in a retirement savings plan such as a 401(k) Plan, 403(b) Plan, 457 Plan, Thrift Savings Plan, or IRA, the division of these assets is relatively simple.  The present day value of the retirement asset can be verified through the most recent statement or by simply logging on to the account to check the balance.  In determining the marital interest, the Court will consider the amount of that value that has accumulated during the marriage.  That amount is generally marital property and will be considered in the division of assets in the overall marital estate.

However, in cases where a spouse has accumulated interest in a defined benefit pension plan the Court’s consideration of the value of that marital asset is not as simple.  When a spouse accumulates an interest in a pension plan, the following three stages are to be considered in the accumulation of that asset: an interest in the pension plan that has not vested; an interest in the pension plan that has vested but has not matured to the point where the spouse is entitled to receive payment from the Plan; and the final stage, when a Plan is vested and has matured to the point where the spouse is entitled to receive the specific benefits defined in the Plan.  In the final stage, the benefit is most often paid out in a specific monthly installments beginning when the employee/spouse reaches a certain age and/or has accumulated a specific amount of years of service time.

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military-pensionsMany Missouri family law attorneys who have been in practice since September 11, 2001 have experienced an increase in their cases involving families with Military retirement plans.   In today’s blog we discuss a potential pit fall when dividing a marital interest in these plans.

In the years following September 11, 2001 the United State’s Military experienced a measurable increase in the numbers of people enlisting in its various branches.   Along with the increase in enlistment came an increase in the payment of military benefits, including retirement benefits and disability benefits.

From the year 2000 to 2013 the number of military veterans receiving disability compensation from the Department of Veteran Affairs (VA)  increased by nearly 55 percent and spending for those benefits almost tripled during that same period of time.   With the increase in the number of veterans receiving some level of disability payment, it is incumbent on your Missouri family law attorney to be aware of the potential impact of a VA disability award on the receipt and division of military retirement benefits.

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money-magnifyMissouri family law attorneys and judges often wrestle over how property is to be divided when that property was acquired during the marriage from one party’s separate or pre-marital assets.   In today’s blog we examine the Source of Funds Rule  and its potential application in divorce proceedings in Missouri. Continue reading →

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worried spouse.jpgOften clients get confused with the concept of misconduct and what impact it may have in the outcome of their Missouri divorce. Some of this confusion may be due to the accepted legal principle of Missouri as a no-fault divorce state. However, this is a separate and distinct concept from marital misconduct. Misconduct during the marriage can impact the financial outcome of your divorce.
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pension.jpgThe short answer to this question is that the “marital portion” of your spouse’s retirement plan in Missouri is most likely divisible by your family court judge. Therefore, you will be entitled to a portion of those benefits. However, there are some exceptions to this general rule of thumb.
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moneyquestions.jpgIn our previous blog entry we addressed the risks involved with failing to be informed about your financial circumstances, not being prepared to provide for your financial necessities in the early stages of the divorce process and the financial damage that can be done by using the divorce process as a means to seek revenge against your spouse. In Part 2 we address failing to budget, lacking an understanding of your retirement plans, failing to consider future needs against your existing desires and not adequately considering which assets have a present financial value and those assets with a monetary value only accessible in the future.
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Property which was clearly non-marital at the time of the marriage can be converted into marital property primarily by the following methods: 1) re-titling of non-marital property or 2) 701013_writing_a_check_2.jpgcommingling non-marital property with marital property. This principal is often referred to as transmutation or the act of making a gift to the marital estate.
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1387294_rural_yellow_villa.jpgThe answer to this question is not always as straight forward as it appears. In the State of Missouri the Court should first determine a property’s “character” prior to making a division. In accordance with Missouri Statute 452.330, property shall be characterized as either “marital” or “non-marital”. How your property is divided will depend on this characterization.

Generally, property which is owned prior to the marriage and then brought into the marriage will be considered non-marital property. If the Court determines that 100% of the value of the property is non-marital, it likely will be awarded, in its entirety, to the spouse who brought the property into the marriage. However, there are many circumstances where the Court may find that property which was once non-marital has been converted into marital property during the marriage. Likewise, there are other circumstances where the Court may determine that there exists a marital interest in a portion of property which is otherwise non-marital. Under these circumstances your spouse can be awarded a portion of the value of the property you brought into the marriage.
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