The Law Office of Kurt H King

July 18, 2017

Bonuses Paid During Marriage based on Pre-marital Work

If, for example, you or your client earned a 2015 profit-sharing bonus  that Ford paid in April 2016, after a marriage earlier in 2016–i.e., after the bonus year but before receipt of the bonus–take comfort in this Missouri case, Sanders v. Sanders,  933 S.W.2d 898 (Mo. Ct. App. E.D. 1996).

The Sanders case applies Missouri’s “source of the funds” rule, and holds that bonuses resulting from pre-marital labor or contributions are non-marital property of the spouse whose labor or contributions warranted the bonus.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, Litigation, General Matters

 

November 21, 2016

EMBRYO IN VITRO–Missouri’s McQeen v. Gadberry Case

November 15, 2016, the Eastern District issued its opinion in a Missouri first-impression pre-embryo in vitro divorce case–McQueen v. Garberry, ED 103138 (Mo. Ct. App.).

The Court’s decision runs long but warrants a full read; its core holding/ruling is:

Some key facts discussed by the Court include:
1.  Neither wife McQueen (attorney) or husband-Gadberry (soldier, MBA) are impotent and each can procreate children naturally–their reason for using in vitro was husband’s impending tour of combat duty–two of the four embryos were implanted and born alive and presumably well to the couple;
2.  Custody sharing of the couple’s two children was said to be difficult;
3.  Husband did not want more children with McQueen, who filed for the divorce;
4.  Wife may have pulled some shenanigans by handwriting in the margin of the embryo storage documentation that “use” of the embryos would go to her in case of divorce–husband testified that language was not there when he signed it; she used blue and black ink in the same area; signed but notarized later; etc., causing the trial court to find the documents to be insufficient to hold husband in agreement on such an important issue.
Ultimately, the court of appeals affirmed the trial court’s order casting the embryos as marital property of a “special character” and requiring they be stored unless and until both McQueen and Gadberry execute a sufficient written agreement otherwise.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin Street, Liberty, Clay County, Missouri 64068
816.781.6000
Missouri Family Law, Personal Injury, Workers’ Compensation, General Matters

November 18, 2013

HOW TO GET YOUR PROPERTY BACK AFTER DIVORCE AND IN OTHER CASES–Missouri’s 511.310

Filed under: Divorce,Family Law,Litigation,Uncategorized — kurthking @ 3:13 pm
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Missouri law 511.310, RSMo 2013, seems to be a rarely used, straight forward way to recover for property that the ex-spouse fails to return as ordered in a divorce judgment.  However, the law does not limit itself to divorce judgments and applies generally. That statute provides:

“511.310. Damages in lieu of performance of judgment

When complete justice cannot otherwise be done, the court may, on the petition of the party entitled to the benefit of a final judgment, cause an inquiry to be made by a jury of the amount of damages which ought to be paid in lieu of the performance of the judgment, and may render a judgment for the damages so assessed, and award execution thereon.”

Perhaps an advisory jury would suffice instead of a full-blown jury trial.

In any event, 511.310 may be a viable and effective alternative to actions for contempt of court and conversion of property.

Kurt H. King

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

816.781.6000

Family Law–Child Custody, Support, Visitation, Dissolution of Marriage, Modifications, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.

 

Kurt H. King

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

816.781.6000

Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

January 16, 2013

Discharge in Bankruptcy Of Debts Ordered Paid in a Divorce or Legal Separation Setting

Filed under: Divorce,Family Law,Litigation — kurthking @ 11:03 pm
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While no longer “breaking news,” cases continue to proceed to court over what happens to an ex-spouse who fails to pay debt he/she was ordered or agreed to pay in connection with a divorce or legal separation proceeding under Missouri law.

One such recent case is Henderson v. Henderson, No. ED98357 (Eastern District Slip Opinion Filed December 26, 2012).  There the former wife filed a motion to hold her ex-husband in contempt for failure to pay a line of credit debt that he agreed to pay in a dissolution settlement agreement and the resulting court judgment of dissolution of marriage.   Instead of paying off the debt as ordered, this man filed Chapter 7 bankruptcy and was granted a discharge of that debt–meaning that the creditor could no longer collect against the ex-husband.

But the creditor could proceed against the former wife to the extent that she was jointly obligated on the debt.  The opinion indicated that the line of credit creditor was attempting to collect from wife but apparently had not yet been successful in those attempts.  There is no mention of the creditor having sued or obtained a judgment against the former wife.  However, the former wife requested an award for attorney fees and costs in her case to hold her ex-husband in contempt of court.

At the trial, the judge  found that the ex-husband was not in contempt for non-payment of the line of credit indebtedness because, “the balance due US Bank is not owed by [Husband] to [Wife] or to US Bank.”  (See page 4.)  Nor did the trial court award attorneys fees and costs on the former wife’s claim for such in the contempt case.  On the other hand, the trial court did order the ex-husband to pay wife [not US Bank]  $9,600 which turned out to approximate roughly half of the balance of the line of credit discharged in the ex-husband’s Chapter 7 bankruptcy.

Both parties appealed the trial court’s decision, the ex-husband complaining that he should not have to pay former wife $9,600 when she never paid a dime of the balance to US Bank on the line of credit.  And, wife of course charged the trial court with error in not holding the ex-husband in contempt to force him to pay her all the line of credit debt and her attorneys fees and costs incurred in the contempt case.

On appeal, the Eastern District easily found in favor of  the former wife in holding the entire Line of Credit is nondischargeable pursuant to 11 USC section 523 (a)(15) which provides that a Chapter 7 bankruptcy discharge–

“[D]oes not discharge an individual debtor from any debt–

. . .

(5) for a domestic support obligation;

. . . [or]

(15) to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation

or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a

governmental unit.”

And this is apparently true even though the ex-spouse fails to file any objection to discharge of the marital debt in the bankruptcy case as the former wife failed to file any such objection to her ex-husband’s bankruptcy case.

The appellate court then summarily rejected the ex-husband’s argument that the former wife failed to make a sufficient case of contempt, and ordered the case sent back to the trial judge for reconsideration of whether husband was in fact in contempt of court and the former wife’s attorney’s fees.

So, this case makes clear that one spouse–the former wife in this case–need not file objection in the other spouse’s bankruptcy case in order to prevent discharge of such marital debt.  Rather, the “marital debt” is not dischargeable even when no objection to discharge is filed.

And while that reasoning seems clear, what about the holding that the debtor owes his or her former spouse the full amount of the discharged debt when that former spouse has not paid a penny of the debt in issue and has not even been sued to collect the debt, and there is no judgment against her to pay any of the debt?  For if the ex-husband now pays the full amount of the debt to the former wife  to avoid jail for contempt of court, there remains no assurance that former wife will use all or even part of those monies to pay the creditor.  Or, perhaps, the former wife negotiates with the marital debt creditor so that she pays only part of the debt in return for a full release of the debt, and by so doing pockets some of money for herself.  The trial court in this case may have been best situated to assess how “judgment proof” the former wife is and craft judgment accordingly so that a windfall to the former wife did not result at the unfair expense of the ex-husband.

As a practical matter, the ex-husband may find himself better off to negotiate quickly with US Bank to pay 50 cents on the dollar, for example, in order to get a full release of himself and his former wife on the marital line of credit debt.  Maybe that is the real lesson in this case–assuming he has the money to pay.

Kurt H. King

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

Domestic Relations Law and General Practice–Divorce, Modifications, Paternity, Child Support, Custody, & Visitation

http://www.kurthking.com

January 26, 2012

7 Things to Remember in Missouri Divorce Cases

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 dividedImportant:  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

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
Tags: , , ,

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

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