FAMILY LAW: SEPARATION, DIVORCE, AND CUSTODY
We are highly emotional when we divorce. Confusing “legalese” terms add stress in top of that. Let me help you understand some “legalese” about separation, divorce and custody.
Divorce=Dissolution of Marriage
“Dissolution” is the Missouri legal name for “divorce”. When you tell me you want a “Divorce” , and I file a “Dissolution of Marriage“, its the same. In a dissolution, the judge must divide all property and debts, as well as determine if one spouse must support the other financially. This brings me to the next legalese term:
“Maintenance” is also “Spousal Support”. In the old days, we called that “Alimony“. These phrases all mean the same thing. A judge orders one spouse to pay the other “Maintenance” when:
- one spouse does not have the financial ability to live without the financial help of the other and
- the second spouse has the ability to earn enough money to support the first spouse in the lifestyle they led during the marriage.
Maintenance can be ordered indefinitely, or for a finite number of months, or even a one time lump sum. Maintenance is separate from child support. Also, Maintenance is taxable income to the recipient. Child support is not.
“Separation” is not the same as “Legal Separation”
Often I am asked ,” How do I get a “Legal Separation”? Well, 99% of the time the caller wants a divorce, and believes that a “separation” is the first step. You may “separate” from your spouse without any court action. One spouse moves from the marital residence. That’s separation. You may sleep in different rooms, and be separated in the same house.
By contrast, an actual “Legal Separation” is as close to a divorce as possible. Legal Separation is a solution for those who, for example, are forbidden to divorce by their religion. The court still divides debts and property, and determines custody and support. At the conclusion of the case, the court issues a judgment of “Legal Separation” instead of a “Dissolution of Marriage”.
However, 90 days following a court Judgment of Legal Separation, either party may ask the court to convert the decree to a dissolution. There is no legal objection to that. If one spouse wants it, divorce happens.
“Legal” Custody is different from “Physical” Custody
Whether a divorce with children, or a paternity case, the Family Court Judge must determine “Custody” of the minor children. There are 2 layers to that term. Physical custody is what most people think of when asking about custody. The “Primary Physical Custodian’s” residence determines the minor child’s school district. A judge awards “Temporary Custody” to the other parent. (Sometimes both parents are joint physical custodians and this example does not apply.) Custody schedules state which parent will have the children on which date and time. For example, “My weekend with the kids begins when I pick them up from school at 3:30 p.m on Friday. I keep them until I return them to the other parent’s residence for dinner at 6:00 p.m on Sunday.”
This physical custody schedule will also specify holidays and vacations. The parent who is with the kids is the “custodial parent“. The other parent is the “non-custodial parent“. These terms switch when the custody periods switch. Yet, “Legal” custody rights don’t ever switch. If parents share “joint legal custody“, as Missouri law prefers, each parent has equal access to the kids’ medical and school records. Each parent has input into religious education and culture. Other discretionary choices are optional, such as wearing braces, extracurricular activities. Joint legal custody rights are held by both parents at all times.