The Law Office of Kurt H King

January 26, 2012

7 Things to Remember in Missouri Divorce Cases

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 9:11 pm
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7 legal tibits that make a difference–

1.  Social Security benefits, including disability, shall not be divided in a Missouri Dissolution of Marriage case.  (section 169.572 of Revised Statutes of the State of Missouri)

2.  Likewise, Missouri Public Teachers Retirement benefits, which largely take the place of Social Security benefits for such teachers, shall not be divided in a Missouri divorce case.  (section 169.572 also)

3.  For much the same reason, Tier I of railroad retirement basically pays railroad workers what they would have received in Social Security benefits and therefore is not to be divided by the court in a divorce case.  Federal law, 45 U.S.C. section 231m, exempts Tier I benefits from the property a divorce court may divide.   The Railroad Retirement Board will not honor a court dissolution of marriage judgment/order that divides Tier I.  Only Tier II may be divided.

4.  Military disability benefits  are non-marital property of the soldier that the court shall not divide in a divorce case.  But ordinary military retirement benefits are marital property which may be divided.  Important:  the military spouse may elect to receive military disability benefits and if so the ordinary military retirement benefits are reduced dollar for dollar.  A legitimate reason for taking disability instead of ordinary retirement is that the disability benefits are not taxed as income to the receiving spouse.  Settlement agreements should prohibit the military spouse from electing to take disability benefits instead of ordinary retirement, or to indemnify the other spouse if the military spouse so elects and consequently reduces the amount of ordinary military retirement available to the other spouse.  (Morgan v. Morgan, 249 S.W.3d 226, 230 (Mo. Ct. App. W.D. 2008)

5.  In a Missouri divorce case, court cannot validly order a spouse to maintain a life insurance policy(s) to support the chilren in the event of the death of the spouse charged with paying child support, UNLESS the parties so agree [most likely in a settlement agreement in the divorce proceeding].  (Weiss v. Weiss, 954 S.W.2d 456, 459 (Mo. Ct. App. S.D. 19970); Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 287-88 (Mo. Ct. App. E.D. 1999))  But court may order a spouse to maintain life insurance for other reasons such as to secure the payment of maintenance (formerly called alimony).

6.  Social Security paid for a child due to the non-custodial parent’s  disability may be credited against his/her child support obligation.  (Wallace v. Wallace, 269 S.W. 3d 479 (Mo. Ct. App. E.D. 2008); Weaks v. Weaks, 821 S.W.2d 503, 506 (Mo. 1991))

7.  Social Security paid for a child due to the custodial parent’s disability shall  not be a direct dollar for dollar credit against the non-custodial parent’s child support obligation.  (Gerlach v. Adair, 211 S.W.3d 663, 667 (Mo. Ct. App. W.D. 2007).  But the court may still consider–not necessarily as a full dollar for dollar credit but simply as one of many possible factors–that the child has income of his/her own in the form of Social Security benefits.  (See Missouri Child Support Guidelines at Section G, Comment (1).)

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Divorce & Modification, Child Custody & Modification, Paternity

Bankruptcy, Personal Injury, Workers’ Compensation

www.kurthking.com

December 19, 2011

No Credit For Child’s Social Security Disability $ If Due To Disability of Custodial Parent

Filed under: Custody,Divorce,Family Law,Support — kurthking @ 10:24 pm
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Possible scenario:  Mom has  residential physical custody of a child who receives Social Security Disability each month due to the disability of the mother who cannot work.  Father wants a credit for the amount of the child’s disability checks in order to reduce his child support obligation under Missouri law. 

Answer: No reduction for father becasue the disability money comes to the child because of the disability of the parent with custody–mom. 

But the answer may be yes if the father was the disabled person and the child received disability payments due to the non-custodial father’s disability.

The Missouri case on point is Gerlach v. Adair, 211 S.W.3d 663, 667 hn.8 (Mo. Ct. App. W. D. 2007).

However, there is another angle in through the back door for the non-custodial father to try.   That is that the Missouri Child Support Guidelines are just guidelines from which the court may deviate for good reason.  And one factor which could cause a deviation is that the court is supposed to consider the child’s income in deciding how much child support to order. 

One practical approach to this scenario was experienced in a Platte County, Missouri, court where the judge added the amount of money the child received each month due to the custodial mother’s disability, back into the total income of the mother which resulted in a small but fair discount in the amount of child support that the court ordered the non-custodial, non-disabled father to pay.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law, Personal Injury, Missouri Workers’ Compensation

Public School Teacher’s Retirement in Missouri Divorce Cases

Filed under: Divorce,Family Law — kurthking @ 9:56 pm
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Many Missouri divorce cases rule that the retirement of public school teachers in this state is not marital property to be divided in a divorce case.   Rather, such retirement constitutes non-marital property of the teaching spouse and can only be set aside in full to that spouse.

The Missouri law which supports these court rulings is section 169.572, the second subsection of which provides–“a court of competent jurisdiction may divide the [retirement]  . . . between the parties to any action for dissolution of marriage, to the same extent and in the same manner the court may divide any federal old-age, survivors or disability insurance benefit of the parties pursuant to the federal Social Security Act.”   Here you need to know that subsection 1 of section 169.572 bars all Missouri courts from dividing any such Social Security benefits.   Bottomline:  Missouri public teacher retirement is not to be divided by any divorce court.

There is one small caveat:  A Missouri divorce court is supposed to consider the amount of non-marital property [including public teacher retirement] in deciding how to divide the marital property.  For example,  if one spouse was rich before the marriage,  the court may consider that non-marital property and maybe give the “poorer” spouse more of the marital proeprty.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law, Personal Injury, Missouri Workers’ Compensation

Is Social Security Disability a Marital Asset in Missouri Divorces

Filed under: Divorce,Family Law — kurthking @ 9:34 pm
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A husband in a Missouri divorce case has a claim for Social Security disability.   Is the wife entitled to half of it as marital property? 

Answer:  No.  Missouri statute 169.572 prohibits state courts from dividing social security benefits in divorce cases.   That law plainly says–“No court shall divide or set aside any federal old-age, survivors or disability insurance benefit provided to any party pursuant to the federal Social Security Act . . ., in any proceeding for dissolution of marriage.”

See also the decision of the Missouri Court of Appeals in the case of Litz v. Litz, 288 S.W.3d 753 (2009), which followed section 169.573 in holding that Social Security disability benefits are NOT marital property.

Kurt H. King

The Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law, Personal Injury,Missouri Workers’ Compensation

November 10, 2011

Divorce and Ford Motor Company QDRO’s in Missouri

Filed under: Divorce,Family Law — kurthking @ 5:04 pm
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Ford’s National Employee Services Center mailing address is now:

PO Box 199721, Dallas, TX 75219-9721

Phone:  800.248.4444

Pension, TESPHE, QDRO, and other information may be obtained from the Center.

 

Kurt H. King

Law Office of Kurt H. King, 816.781.6000, 20 E. Franklin, Liberty, Clay County, Missouri 64068;

www.kurthking.com

Bankruptcy, Child Custody & Support, Divorce & Modification, Family Law

Personal Injury, Missouri Workers’ Compensation

Divorce and Orders regarding Life Insurance for the benefit of the Children of the Marriage in Missouri

Filed under: Divorce,Family Law,Support — kurthking @ 4:47 pm
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The question comes up about whether the court the non-custodial parent who is ordered to pay child support in a divorce case in Missouri can legally be ordered to maintain life insurance coverage on his/her life to pay out to or for the minor children of the marriage should the non-custodial parent die. 

Right now, and the law may change on this in the future, the answer is that the court can make that order in a judgment dissolving the marriage IF the parties so agree in a settlement agreement which is part of the judgment and the parties ordered to comply with the terms of the settlement agreement.  See Wheeler v. McDonnell Douglas Corporation, 999 S.W.2d 279, 287-88, hns. 9-11 (Mo. Ct. App. E.D. 1999); and, Weiss v. Weiss, 954 S.W.2d 456, 459, hn. 6 (Mo. Ct. App. S.D. 1997).

However, if there is no settlement agreement, then the court generally CANNOT validly order the non-custodial parent to maintain life insurance for the benefit of the children of the marriage.  The rationale is that such an order makes the non-custodial parent pay child support past the date of his/her death which is contrary to Missouri law.

But, note that a court may order a spouse to maintain life insurance with the other spouse as beneficiary to secure that spouse’s obligation to pay a particular sum of maintenance over time or perhaps to satisfy some other marital obligation as ordered by the court.  This type of life insurance order may be used because it is not one which has do with child support.

In sum, the rule now in Missouri (other states may handle this differently) is that the court cannot validly order the non-custodial parent to maintain life insurance for the benefit of the children unless the parties so agree in a written settlement included or perhaps incorporated in the court’s divorce judgment.

It would also be a good idea to provide (and get a receipt in person or by Certified Mail Return Receipt Requested) a copy of the judgment and settlement agreement to the insurance company to put them on notice in case the non-custodial parent tries to change the beneficiary or cancel/non-renew the policy.

Kurt H. King

Law Office of Kurt H. King, 816.781.6000, 20 E. Franklin, Liberty, Clay County, Missouri 64068

www.kurthking.com

Bankruptcy, Child Support & Custody, Divorce & Modification, Family Law

Personal Injury, Missouri Workers’ Compensation

January 17, 2011

Divorce and the Closely Held/Family Business in Missouri

Filed under: Divorce,Family Law — kurthking @ 6:11 pm
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When the owner of a business is involved in a Missouri divorce case, issues can be complicated and expensive to resolve.

Perhaps the biggest issue in a case where husband and/or wife own a business is valuing the business–at least the part that is marital property to be divided. In some cases, the business is one where it has little going concern value were the spouse running it to sell (the “business spouse”). Examples may include the solo practicioner lawyer, some small construction companies, and others where the value of the business is really wrapped up in the connections or skills of a key person spouse.

Take a construction company where home builders call the husband-spouse–a person that the builder knows–to have residential or commercial construction work done. If those builders are unlikely to continue to call on that business if the operating spouse stopped working in the business, then the going concern value of the business may well be basically its net value–assets minus debts/liabilities. In this situation, it may make more sense to hire an appraiser to value the business assets, rather than spend $5,000 and likely more to hire a business valuation expert.

In short, if the business is a key man company and the spouse is the key man, then the business may not be worth much more that its assets minus liabilities in a case where the business is sold/liquidated in a divorce case scenario.

On the other hand, many are fortunate to own a business which other people or companies would like to buy for considerable amounts of money. If so, then you can expect to need solid expert business valuation testimony at trial to support what you believe to be the correct value of the business. Don’t plan on just handing all the financial reports to the judge to figure it out. Business valuation takes many hours of time, research, accounting expertise, experience, and training. Most judges do not have that kind of time and training. Even if they do, it is an unfair and unwise imposition on the judge to simply drop it all in his/her lap to do the work for you. This is even more true when the other side of the divorce case brings their expert to give his/her valuation opinion with supporting explanation, but you don’t. Guess which value the court is likely to find as that of the business when one party/side to the case fails to carry his/her burden of proof?

Keep in mind that the business spouse may cause the business to retain extra earnings to lower his income from the business. Or, the business may take on new leases, loans, and debt to confuse as to its true net worth. Or, maybe the business spouse decides to buy business equipment/property to reduce its net cash flow. There are many other such moves that can be made.

Yet another consideration arises where the key person spouse is going to keep on running the business, and the business has a history of substantial income. Then the spouse not in the business may want to claim a serious amount of maintenance–formerly called alimony–to be paid by the busniess spouse. This claim may cause the business spouse to agree to pay a substantial amount–lump sum maintenance–to the other spouse to “buy out” of having to pay months and years of maintenance. (Maintenance set by the judge and not by agreement often runs indefinitely until termination by law–death, remarriage, for instance.) So, you may want to keep this in mind.

Let me close this small post on a large subject by cautioning against just taking your spouse’s word for what the business is worth. First, he/she may not know the correct value. Secondly, in a divorce the business spouse is probably trying to pay you as little as possible for your share of the business. Get your own people to check it out. Otherwise, you may find yourself agreeing to settle for far less than what your half of the business is worth.

There are many angles to this situation, and whole books could be written on the subject. Be careful and have it checked out by persons who are looking out for your best interests. Don’t be naive.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068

http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Missouri Workers’ Compensation

January 7, 2011

Bankruptcy and Divorce in Missouri

Filed under: Bankruptcy,Divorce,Family Law — kurthking @ 6:07 pm
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Many spouses in broken marriages face filing (1) Chapter 7 bankruptcy and (2) for divorce. When couples divorce, many lack enough income to pay his/her share of the bills/debts. Should they file bankruptcy first, or start with the divorce, or do both at once?

Here are some considerations:

1. A husband and wife can file bankruptcy together in a single case. After the divorce, the couple are no longer married and each has to file their own bankruptcy case which doubles the total cost in attorneys fees and court filing fees. With attorneys fees of up to $2000 per case (or more) and a filing fee now of $299, it saves money to file 1 case instead of 2.

2. Can the couple agree/cooperate well enough to file the bankruptcy together? If not, then he/she will have to file bankruptcy separately. Preferably he/she/each files before the divorce so all the debts of the person filing are wiped out by the bankruptcy, making it easier to settle or for the judge to decide the divorce case because it is often more simple to divide property than it is to divide both property and the debts.

3. Also, it may be better to discharge the debts in Chapter 7 bankruptcy before filing for divorce, because divorce cases which address division of debts typically call for for each spouse to pay some of the joint debts, and to indemnify/reimburse the other spouse if the creditor collects from the other spouse who was NOT ordered to pay the debt. These indemnity provisions generally do NOT go away in Chapter 7 bankruptcy cases, which, means that one spouse could be forced to repay the other ex-spouse after the divorce. It is better to wipe out these debts with bankruptcy before divorce to reduce the exposure to having to indemnify an ex-spouse for joint debt the court ordered you to pay and hold harmless/indemnify.

4. Can the divorce and the bankruptcy cases run at the same time? Yes they can both be filed and pending in court at the same time, but when division of property is involved, the automatic stay in bankruptcy law (11 U.S.C. 362(b)(2)) will put a stay/stop on the divorce case as far as property until the bankruptcy court determines what property goes to creditors. A bankruptcy case with no assets for creditors takes 3 months or more, so considerable delay can result while the spouses wait to get divorced.

5. There are many other factors such as the incomes of the parties and whether their combined or separate incomes are too great to qualify under the means test of Chapter 7; who has filed bankruptcy before, what chapter of bankruptcy, and how long ago (8 years or more?); etc.

These are thorny questions for you and your attorney.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

January 6, 2011

Maintenance/Alimony and Divorce in Missouri

Filed under: Divorce,Family Law,Support — kurthking @ 5:39 pm
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Spouses headed for divorce often wonder about maintenance–what used to be called alimony.

Here in the Kansas City area, and presumably other Missouri courts, the judges lean away from maintenance. This is especially true where the marriage is short–less than 10 years for instance.

Maintenance in the typical situation arises when one spouse lacks income to pay his/her necessary bills while the other spouse has income to contribute. Many times a judge will take a sharp pencil, so to speak, to the expense amounts of the needy spouse; then do likewise to the expenses of the spouse who may have extra income. If that review shows a legitmate shortage of income for one spouse, and income remaining after expenses for the other spouse, then the extra income may be ordered paid to the needy spouse in an amount that the court finds is best after the court also considers the factors set out in Missouri statute 452.335 (marital misconduct, time to re-educate, etc.). Often times neither spouse is really happy about a maintenance order–one spouse thinks it too high, while the other thinks the amount awarded is too low.

A major consideration in maintenance cases is how long will the payor have to pay maintenance. Death or remarriage of the payee often terminates the obligation to pay maintenance unless the parties have agree otherwise. The key to keep in mind, however, is that unless there is sufficient proof of a definite date that maintenance is no longer needed, it may be required to be paid until such death or remarriage which may be years and years down the road.

Because the risk of an open-ended order to pay maintenance with no termination date is so great, many spouses faced with a real possibility of the court ordering he/she to pay maintenance often negotiate about a stop date on maintenance. To get that stop date, the paying spouse often has to give up assets or agree to pay a somewhat high amount per month as compared to what he/she thinks he would have to pay if he left it up to the judge to set the amount and duration.

Another motivation for settling to get a definite stop date on maintenance is that without the agreement, the party receiving maintenance can later file a motion to modify under Missouri statute section 452.370 to increase the amount or duration of maintenance being paid. To make that case for modification, the receiving party must prove a substantial and continuing change of circumstances based on the facts of the case. Negotiating a written agreement on maintenance with a provision that it is non-modifiable protects against a later modification case to increase maintenance.

A pretrial conference with the judge is a good way to get a read on what the judge may do and thus what it may take to reach an agreement on maintenance. Each legitimate maintenance case tends to turn on its own facts and there is no formula in which to simply plug numbers as with child support. The experience of counsel in similar cases may be best guide, aided by the pretrial conference.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

July 20, 2010

Calculating Child Support in Missouri (via Kurt’s Take on Law)

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 9:05 pm
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Trying to get a handle on how much child support should be in Missouri?  You may find this website with child support form and software helpful–www.teamlex.com/Areas/form14.htm And the 2009 Missouri Child Support Guidelines (which change upon periodic review by the Missouri Supreme Court) may be found at–www.mobar.org/data/esq08/oct10/order-form14.pdf Remember that Missouri uses gross income and not net income (exception:  self-employed may ded … Read More

via Kurt’s Take on Law

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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