What you need to know about legal separation in Missouri
In the state of Missouri, legal separation is an option that couples may consider before filing for divorce. It can serve several functions, each of which may be present to varying degrees in any given situation. To put it simply, legal separation is the process by which a married couple can separate their lives but not their legal identity as a married couple. It is important to note that Missouri does not have a designated legal separation proceeding. Instead, the couple must file for divorce and then request a decree of separate maintenance. Most often, couples will seek legal separation first because they intend to get divorced soon after. Additionally, couples may pursue legal separation to make the divorce process easier, as well as to take the first step toward safer and healthier lifestyles, free from the damages of a toxic relationship, both physically and mentally . Some people may seek legal separation only and not pursue divorce. This may be the case for couples who have reservations about ending their marital union instead of working out their problems. In some cases, couples may seek legal separation because one or both parties does not wish to obtain a divorce for religious reasons. Finally, some couples may opt for legal separation in lieu of divorce simply because they are not eligible to file for divorce. In Missouri, a couple may only file for divorce if they meet certain residency requirements. If they do not meet these requirements, they may seek legal separation until a time when they are eligible to file for divorce.
Requirements for Separation in Missouri
In Missouri, there are no residency requirements to file for a legal separation. However, the requirements of jurisdiction must be satisfied. You can file for legal separation in Missouri if your spouse and you were married in Missouri, unless either spouse has been a resident or the person filing for a year and meets the service of process requirements of Missouri law. If they were married in another state, the filing spouse must be a resident of Missouri for a minimum of 90 days before filing for legal separation. All couples that meet this criteria can file for legal separation in Missouri.
There may be some other prerequisites before filing. Any spouse who wishes to file for legal separation must complete the Petition for Legal Separation form found on the Municiple Courts Website. They must also pay the applicable filing fee. A case number will be assigned to the case and a summons will be filed with the County Clerk. A copy of the petition along with a notice of hearing must be served to the other spouse in the case, according to Mo. R. Civ. P. Rule 54.01.
Preparing Paperwork for Separation
In order to initiate a legal separation proceeding in Missouri, you must assemble a specific set of documents. The first of these documents is known as the Petition for Legal Separation, form CAFCV-100. This document contains all the standard information regarding you, your spouse, the marriage, the children you have, if any, and what you are asking the court to do.
The legal separation forms also include Instructions for Filing for Divorce or Separation, form CAFCV-101. As you prepare your case, there are also forms you can use to request Early Neutral Evaluation, form CAFCV-102; costs and fees to be paid by the Plaintiff, form CAFCV-103; and Motion to waive the Service of Process, form CAFCV-104.
The remaining legal separation forms and their descriptions are as follows:
-Certificate of Divorce/Annulment, form CAFCV-105
-Entry of Appearance, Waiver of Service and Consent Form, form CAFCV-106
-Joint Motion for Temporary Relief, form CAFCV-107
-Family Court Information Sheet, form CAFCV-108
-Motion for Appointment of Counsel, form CAFCV-109
-Certificate of Compliance with Mandatory Court-Annexed Mediation and/or Alternative Dispute Resolution Requirements, form CAFCV-110
-Summons for Divorce or Dissolution of Marriage and/or Waiver of Service of Process, form CAFCV-111
-Notice of Hearing, form CAFCV-112
-Notice to Non-Custodial Parent of Temporary Hearing, form CAFCV-113
-Balance Sheet, form CAFCV-114
-Income and Expenses Statement, form CAFCV-115
-Personal Property Schedule, form CAFCV-116
-Trial Witness List, form CAFCV-117
-Discovery Interrogatories, form CAFCV-118
-Motion for Trial Setting and Order, form CAFCV-119.
Your legal separation packet in Missouri should also include a Temporary Order, form CAFCV-120, for spousal or child support, health insurance, custody, guardianship and visitation, and any other stipulations you wish the court to consider until your actual separation hearing is held. Finally, you will need the Certificate of Dissolution of Marriage/Divorce, form CAFCV-121.
Filing fees for a legal separation in Missouri range from about $200 to $250, and are due with the filing of these documents.
Filing the Separation Petition
The next step following the preparation of the legal separation petition is filing it with the appropriate court. This must be done in the family court of the county where at least one of the spouses resides or where the couple last lived together as husband and wife. The petition must be filed in person, for there are no electronic filing provisions at this time. The filing is a simple matter. One simply goes to the circuit clerk’s office at the courthouse, pays the filing fee, and the clerk stamps and returns the filed copy to the filing spouse. Missouri has a form that must be used for petitions for legal separation, but the petition is not otherwise court specific (i.e., it does not have to be on particular paper or printed and filed with a raised seal, etc.). When filing, the family court clerk will ask for the names and contact information for all parties and for each child of the marriage. The clerk will then assign a trial date and establish a case number for the action. The family court will send the petition to the calendar administrator’s office, and they will establish the case file for the court to keep up with its progress. Once the petition has been filed, the filing spouse is then responsible for serving the other spouse and any other parties named in the legal separation petition. The legal separation petition may be served at the same time as the summons in a similar manner as any other civil case, except that under current law the plaintiff may only obtain a default judgment if at the time the defendant is being served the defendant is either a non-resident of the state (i.e., does not reside in Missouri) or is an incompetent person (i.e., has a medical or psychological condition which renders the defendant incapable of making decisions with respect to his/her personal affairs).
Serving the Petition to your spouse
Once you have filed for legal separation, you will have to serve the separation petition to your spouse. Proper service is an essential part of the legal separation process and must be completed within 30 days of filing the petition. There are several ways you can "serve" your spouse in Missouri including television and radio announcements, providing a copy to a friend who lives with your spouse, copy of the pleadings to your spouse’s attorney, and by publication.
First, there must be a movement to serve your spouse, and you should have all the information you need at home to do this yourself. Remember: Productivity is key. Once that paper is printed, it can’t legally be changed. You don’t want to take risks here, so make a plan with your attorney.
If you do not wish to go the "self-service" route, the county sheriff will "serve" them for you. (What a helpful neighbour!) Or you could get a private process server to do it. If it’s a jurisdictional issue, the Process Server must be licensed.
It is possible to file an emergency motion with the court to waive the requirements of service if you do not know what has happened to your spouse, nor can you find out. If you can get the process server to locate them, then you’ll be fine.
Normal service requires the spouse to be handed the petition (possibly at work, or at a busy coffee shop) by a third party. But it must be properly returned to the courts with a document called an "affidavit of service." This document confirms the petition was in fact served. It must be signed by the process server or person doing the serving, and filed with the clerk of the court to prove service has taken place.
Answering a legal separation petition
Upon service of the petition, a Respondent spouse (the other party in the legal separation action) has thirty (30) days from being personally served to respond to a legal separation petition. The responding spouse can do so in several different ways:
Filing an answer with the Court: The answer is just that – an answer to the complaint. In this instance, the responding spouse accepts the facts but denies the allegations made in the petition. There is no room for negotiation. However, if there is much that you don’t accept regarding the allegations in the petition, there is the option of filing a counter-petition.
Filing a counter-petition with the Court: A counter-petition is a response to the petition filed in court by the individual served with the petition. A counter-petition, however, is the filing of a new petition by the spouse responding to the original filing. In effect , a counter-petition is simply a response that starts the same process that the initial filing began.
Filing an answer and counter-petition with the Court: This is often the best approach to take because it will technically cover everything. If the responding spouse is unsure whether they will eventually file for a separation or divorce, going ahead and filing an answer and counter-petition is the best way to move forward. Furthermore, it can be done immediately after the petition is served to keep the ball rolling.
Filing nothing: Finally, a responding party may do nothing at all. Although this course of action enables the responding party to retain their rights until they are ready to ask for the divorce for themselves, it also means that the responding party does not have any control over the legal process during this time. This means that you will not be able to request that any property be included in a temporary restraining order, such as a vehicle or bank account, during the period leading up to your ultimate filing for divorce.
Negotiating Separation Terms
After you and your spouse complete the interviews, the next step will be to review all of the information and negotiate the terms of the separation. Many times, the answer or solution will be easy to find. You will have likely filled out the information that you both could agree-to, and each separated your own personal property, so these areas will be fairly simple to navigate. From time to time, you may not agree with something that your spouse wants, and your spouse may not agree with something that you want. For example, if one spouse keeps the home, the other will likely want it off of the list of marital property in exchange for something of a comparable value. Some house values are easy to determine, such as when they are sold to a third-party person. Other values are not that easy to determine, including homes that were purchased a long time ago. The home may have appreciated slowly, it may have appreciated very quickly, it might have depreciated, or it may have just not significantly changed in value at all. In these situations, it may be necessary to obtain an appraisal or two to determine the value so that the division of property is fair (or at least, close to equal). Sometimes the separation will involve a child or children. If you have children, and the parties agree, the separation can include the legal custody arrangements and child support amounts. The legal custody arrangements will include whether either parent can take the child or children out of the state without advance permission from both parents, who should have joint decision making power for the health, education, and welfare of the child or children. Like property, the support amounts will need to be calculated under the Child Support Guidelines to ensure that the parties are following the state guidelines, which are considered to be fair for child support. Other issues that might come up in negotiation include who pays what bills while the separation is pending, and how the parties will handle paying any joint debts that remain after the separation. Will each spouse pay half of the bills directly out of their own account, or will one spouse take responsibility for paying specific bills while the other spouse is responsible for the rest? What happens if one person misses a payment because they do not have enough money that day? In the meantime, the remaining spouse is at risk because he or she agreed to make those payments. Oftentimes, the courts will require that the spouses put these agreements in writing so that they can be enforced against the parties later. The more complicated your circumstances are, the better off you will be to hire a mediator or attorney to help you with these processes. Even if you do not agree with the entire result, at least you will have an advocate to do the work for you or work on your behalf to help you navigate the issues. One very common reason for wanting the help of a mediator or attorney is because the other spouse handles all of the finances and the financial spouse has some sort of leverage over the non-financial spouse in order to control the situation. Having the support of a mediator or attorney under these circumstances is invaluable.
Completing a Legal Separation Agreement
Once you and your spouse have fully negotiated and agreed upon the terms of your legal separation agreement, there remain a few additional steps that must be taken to finalize your agreement.
While an independent legal separation agreement is legally enforceable, the court has the responsibility of deciding whether or not to approve both the agreement and the terms contained within it. A divorce settlement approved by the court holds the same power and force of law as a formal judgment. The law sees the spouses’ written separation agreement as a type of contract between the parties.
The legal separation process in Missouri requires a court to review the agreement and determine whether it is ready for approval. The court may suggest modifications to the separation agreement at that time. The best-case scenario is for the court to agree with the terms you and your spouse have worked hard to negotiate on your own. If the court feels that well-reasoned adjustments should be made to your legal separation agreement, they will contact you to discuss it in more detail.
The court’s primary motive in reviewing a legal separation agreement is to ensure that the rights of each party are treated fairly and that no one party is unduly benefitting from the separation action. Once the court approves the legal separation agreement, it will issue an order that transforms the agreement into a court order binding each party to the agreement it stipulates. At this point, you will need to draft an entry of appearance and waiver of notice indicating to the court that you and your spouse now agree to submit to the terms of the separation agreement. You will then file this document with the court.
If you or your spouse do not feel that you stand to benefit from the legal separation, version of the process, you may also choose to simply apply for a divorce. The process for petitioning for a divorce is nearly identical to that of obtaining a legal separation. The primary difference between the terms of each process lies simply in how you label it.
Help and Resources
It can be a stressful time when someone is thinking about filing for legal separation. Learning about what to expect, and how to navigate the process, can help make the process go smoother.
Your first stop for Missouri legal separation resources is the web site for the Missouri Bar association. It contains an information guide that walks you through all of the steps of the legal separation process, as well as providing answers to frequently asked questions that individuals have on this topic. If there are any areas that are unclear after you review that resource, or if you would prefer speaking with an attorney who specializes in these issues, the Missouri Bar also provides a find a lawyer service . That will direct you to a legal professional within the state who can help. Finally, if you qualify for free legal assistance from a local legal aid program there are many assets listed on the statewide website to help get the help you need. For many people, the hard part of legal separation comes after the paperwork is filed. Community support groups can provide vital emotional assistance and practical advice during this difficult transition, for both partners in a separating marriage, as well as their children. Churches and community centers often host help programs for families going through the legal separation process, and there are many services located in the greater St. Louis area.