Part of Real World Divorce: web edition | Kindle edition
Our questions regarding Missouri law and customs were answered by Lori J. Levine, who graduated from University of Missouri-Kansas City in 1977. She has been a practicing family lawyer since then and has conducted about six trials each year, representing men and women in roughly equal proportions noting that "At this point in my career I am dealing with all high-income earners." She has been recognized as a Super Lawyer by Thomson Reuters and has been influential in the development of statutes in Missouri, notably a 1983 law establishing a "preference" for joint legal and physical custody. See www.carsoncoil.com for additional biographical information.
Levine has been Chair of a commission on Pro Se Litigation and notes that pro se divorce litigation has been uncommon in Missouri, perhaps between 13 and 25 percent of the total. "That's up from nothing and came from our commission adding forms online. There was tremendous resistance from the bar." Does having an attorney affect the outcome? "On custody if you have fit parents, doesn't make much difference to have a lawyer except that when you are represented your parenting plan will be better because it will have considered the family and the family dynamics. When you're going pro se it will be a check-the-box plan. People get better value [from having an attorney] in property cases."
Our interview with Levine confirmed once again that there can be a vast gulf between the plain language of statutes (laws) and the real-world outcomes from litigation. "The joint custody law has been in place since 1983 and there was a lot of resistance at first. Missouri is very conservative and it takes about 10 years for courts to even come around to a new idea. It was not until the 2000s that the courts began implementing the law. Until then they would just make it trivial for mothers to rebut the "preference" for joint custody." In other words, it took 20 years for the courts to grant outcomes that were in accordance with the expressed wishes of citizens and legislators.
Missouri law allows a parent to collect child support until a child turns 21, assuming the child is still in high school or "in good standing" at a college. The child support guidelines are found in Supreme Court rule 88.01 and the Form 14 that goes along with it. The amounts from the guidelines are a rebuttable presumption. Generally they top out at an income of $30,000 per month, resulting in a maximum payment to the custodial parent of about $2,164 per month [$25,968 per year]. "Not enough to live on," says Levine. "If you have a child who has been given unusual opportunities, such as travel abroad every summer or polo then court will probably not award more support but order the extras to be paid. Also the Court will not typically order college expenses to be paid at higher than the University of Missouri Columbia rates. College can be factored into Form 14 or be an extraordinary expense."
A court can order, in addition to guidelines child support, a non-custodial parent to pay for work-related day care expenses.
Shared physical custody results in a reduction in child support payments by the formula, anywhere from a 6-50 percent reduction. There is no statutory age at which a child's preferences regarding custody are considered. "Case law gives us guidance and always depends on maturity of child. Courts tend to start thinking that we're not going to make child live where they don't want to starting at age 14."
The most common parenting time arrangements are every-other-week and 5-2-2-5. "That's what I start with in mediation as being likely to be in the best interests of the child, but if a kid doesn't like it then we come up with something that works better for everyone."
Levine charges her clients between $350 and $400 per hour. She estimates that the fees for one side in a custody lawsuit would at a minimum be $100,000 plus the parties would pay an additional $50-60,000 to a Guardian ad Litem (attorney) and a custody evaluator (psychologist), bringing the minimum cost to a family up to $250,000 and very likely higher. For a mediated divorce, on the other hand, she estimates that her fees could be as little as $10,000.
Levine offered that women with borderline personality disorders were "the worst clients you could ever have. I run from them. Everyone becomes the enemy." This is consistent with the book Splitting by Bill Eddy and Randi Kreger, in which women with borderline personality disorders are highlighted as very challenging divorce litigants.
Prenuptial agreements in Missouri must at least anticipate a division of marital assets, but that can be a simple 50/50 split. It is possible to have a valid "walk-away" prenuptial agreement in Missouri where neither party can substantially profit from the marriage. Such a prenuptial agreement can waive alimony, for example. In the absence of a prenuptial agreement, however, alimony or "maintenance" is potentially very valuable in Missouri. It is completely at the discretion of the court, but lifetime alimony typically cannot be obtained unless the parties were married for at least 10 years.
As in other states, a prenuptial agreement cannot limit a court's ability to award custody or child support.
The average hourly wage in Missouri is $19.79 per hour. A person who goes to college at the University of Missouri will spend approximately $76,524 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $40,000 per year ($30,825 after taxes). The corresponding man earns $50,000 per year ($37,529 after taxes). Missouri burdens residents with a close-to-average state and local tax rates amounting to roughly 9.3 percent of income (Tax Foundation).
The average annual cost of child care is $8580 for an infant in Missouri, $5928 for a four-year-old, and $4784 for a school-age child. Thus the total cost of child care from age 0 through 12 is $44,990.
For a man who goes to college and then works for 17 years, his total after-tax spending power would be approximately $558,579 (income minus college tuition). After factoring in USDA-estimated costs of child-rearing, he will have greater personal spending power if he can collect at least $2,967 per month in tax-free child support for one child. That's above the top of the child support guidelines. If he can obtain custody of two children with two different mothers, however, he needs to collect only $1,700 from each mother in order to outperform peers who choose college and work. This can be obtained by suing women earning at least $235,200 per year.
A corresponding woman will have an after-tax spending power of $447,501 from college plus 17 years of work. She will be financially better off if she can collect $2,526 per month in child support, which is once again over the top of the guidelines. If she can get custody of two children from two different fathers, however, she can outperform the college and work scenario by collecting $1,638 from each father. This works when each defendant earns at least $218,400 per year.
Among Missourians surveyed by the Census Bureau in 2014, 95 percent of those collecting child support were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"Most likely there will be an award of 50/50 custody. If both parents are fit, there is that a preference for joint legal and joint physical. There is nothing that indicates he is unfit--just a lazy bum. Judges do not give deference to the child care pattern during the marriage because dynamics change after a divorce. A parent who was absent during the marriage may become a superparent after divorce."
Who is involved in determining custody? "In all likelihood there will be a Guardian ad litem [GAL] appointed and you're going to get custody evaluations. The GAL is a lawyer and looks out for best interest of the child. The GAL does a lot of fact finding. The custody evaluator also talks to teachers, physicians, neighbors, nanny, and others. The GAL tends to bill $20-30,000 and the custody evaluator $30,000." Why are there two people draining this child's future college fund? "They have different roles," Levine notes. "In one case the GAL said 'I am not an expert in alienation nor a psychologist so it is time for me to pick a team to look at this family.' He had the court order separate therapists for mom, for dad, and for the children. Then an evaluation that brought it all together." Do a divorcing couple have to support every psychologist in the region? "If the GAL feels comfortable making recommendations then there won't be an evaluator."
If Levine's prediction about 50/50 custody comes true, the $325,000 per year doctor will have to pay child support to her slacker ex-husband. In addition to the guideline formula for child support, which will be run with at least some imputed income to the father, the mother "may be ordered to pay all of the day care and extraordinary expenses, maintain health insurance, etc. This is because his income is nowhere near hers."
The basic guideline amount for the doctor is $24,420 per year, a potential payment stream, times 21 years, of $512,820. If, on the other hand, the doctor can obtain primary custody and impute $40,000 per year in income to the slacker photographer, she will obtain $7,908 per year in child support from him ($166,068). For the plaintiff-doctor, then, the financial stakes in the custody fight are $678,888 or roughly three years of her after-tax income.
Given the disparity in income, what is the likelihood that the mother will be ordered to pay the father's legal fees of defending this lawsuit? "It is the exception to get fees."
Can the father ask for alimony? "No," says Levine, "due to the two-year length of the marriage. Alimony is totally discretionary with the court. Usually we see alimony after a 10+ year marriage."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
"These two parents may hate each other but they will have to suck it up and split the kids 50/50," says Levine. "That they hate each other will not justify a sole custody award to either side. There are no indications that these parents' values are so different that they can't make decisions regarding children. If down the road the children are locked up because Dad says they should play in a baseball league and Mom refuses, he can get a modification to terminate joint legal custody."
As in Washington, D.C., when parents truly cannot communicate a court may split up joint custody by topic, e.g., if the father is a physician then the father will have sole legal custody for health care. "This won't affect physical custody, though," Levine reminded us. "The kids' time will still be split 50/50."
Due to the equal incomes and 50/50 parenting time split there would be no child support ordered. Nor would there be alimony in this case.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"Preschool children makes a difference," notes Levine. "If Mother says 'I want to stay at home four more years until both of kids in school' she may well be able to do that. The kids will stay with the mom. The father would have 'visitation' or 'parenting time' alternating extended weekends (Friday to Monday) and at least one night during the week."
How about child support? "It will be calculated using the guidelines but with no income imputed to the mother until the child enters full-day kindergarten. After the kids are all in school there will be a modification." [Guideline support is $31,368 per year, tax-free, for two children of a parent with a $275,000 annual income.]
Property division? "The marital property will be split 50/50 and the woman will receive a package between $7,000 and $10,000 per month that is a combination of maintenance and child support, says Levine. "One of the factors that encourages payors to settle is that unless there is a settlement with X years of child support at $Y per year, there will be lifetime maintenance subject to remarriage, death, or return to court."
Is it realistic to collect lifetime alimony? "I have a case right now where a woman gets alimony of $12,000 per month. She does nothing but whine because she is unhappy about the divorce. Her maintenance could get terminated if she does not try to work at all."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
Despite the young age of the child the custody decision might be 50/50 immediately. "There really is a strong preference for 50/50. If he can make his schedule work and really wants to parent, he could get 50/50 even with a child as young as 8 months. The breastfeeding question is judge to judge. I have seen judges who say "pump" (not in those exact words) or "you'll figure out a way". I have seen judges give 50/50 custody for newborns. The presumption that his bonding is as important as hers."
Guideline support is $22,176 per year, tax-free, for one child of a parent with a $275,000 annual income. If the doctor earns a 3% dividend yield on the $2 million in assets, child support would go up to $24,840 per year. A court would have the discretion to reduce these payments from the father to mother if the child were shared 50/50 but the reduction is not required.
"His $2 million pre-marital assets cannot be touched, though income from them can be. She will probably get some maintenance if court says that she can stay home with the child. If she can get the kid and stay home with the kid, she can get $3-5000 per month," says Levine.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
The custody decision-making is "the same as if they had been married. The courts will work toward 50/50," says Levine.
"She will have imputed income at $12/hour. This will be a guidelines arrangement and will be less than $2,000/month [$22,176 per year is our calculation]. She won't be able to live on it."
What if she remarries at 25 to a man earning $100,000 per year? "There will be no change in child support payments," says Levine.
After the trial is over and everything has been divided, how easy is it for a parent to move with the children? "Standards are the best interest of the children and a valid reason of the parent seeking the removal. They cannot go if it is not in best interest of the children. It is hard to leave Missouri both by statute and according to case law."
What about if a parent has lost custody and is an every-other-weekend visitor? "It does not strengthen case for removal unless the non-custodial parent is not fully exercising his rights. But if the visiting parent is as active as he or she is permitted to be, it will be hard to cut them out of the children's lives." What if a parent misses four weekends a year and asked to make them up but was denied by the custodial parent? "If it has been for vacation it will hurt them in a removal case; if for work then it won't affect removal."
"This is the reason people fight so hard for joint/joint because there is a presumption of fitness that is awarded to both parties such that burden of proof for removal is high."
Missouri provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, four children with one co-parent will yield $985,068 tax-free over 21 years. Four children with four different co-parents, however, are worth $2.18 million.
Missouri was home to a dispute regarding post-divorce disposition of frozen embryos. Jalesia McQueen married Justin Gadberry in 2005. Doctors created four embryos via IVF in 2007, of which two were implanted and born. McQueen sued Gadberry for divorce in 2010 and, though she won her divorce lawsuit, failed to obtain exclusive custody of the embryos. She wouldn't be able to turn them into babies without her defendant's consent. Had she won exclusive custody she would have been able to have two more children and collect additional child support from her former husband. She appealed, leading to a New York Times story on January 19, 2016: "Anti-Abortion Groups Join Battles Over Frozen Embryos." In a 2-1 decision, the appeals court, as with most appeals, agreed with the trial court judge (see "Divorced St. Louis County couple's frozen embryos are property, not humans, appellate court rules," St. Louis Post-Dispatch, November 16, 2016).
Asked about accusing the other parent of child molestation, a common tactic in states such as Massachusetts, Levine said that it was almost unheard of in Missouri: "If you suggest it and it is not proven, that's parental alienation and you risk losing custody."
What does Levine think of states such as Massachusetts, California, Illinois, and New York, where it is possible for a parent to collect $75,000 or more per year in child support? "That's terrible public policy. You don't want to give people incentives like that. I am personally opposed to trying to get a financial reward in a custody decision."
Because of its preference for a trend toward 50/50 parenting, Missouri rewards pre-lawsuit planning much less than other states. It won't be that helpful to spend a year volunteering for extra child care duties in hopes of winning sole custody because the sole custody won't last if the other parent wants shared custody.
Due to the relatively modest amounts of child support that are available, Missouri discourages every form of trying to profit from children, including short-term marriages, selling abortions, alleging sexual abuse or other misconduct, etc.