Common Law Marriage

The basic requirements of marriage are fairly straightforward: the parties must agree to marry, must be eligible to marry, and must go through whatever forms are required for marriage in that state where they intend to marry. Marriage is not, however, treated uniformly throughout the states. The formal requirements vary from state to state. In general, parties must secure a marriage license and participate in some form of a ceremony.

There are many people who have not participated in a valid ceremonial marriage but still live and share life together as though they had. Their relationship might instead be defined by an alternative doctrine. Common-law marriage is an example of one such alternative doctrine. It differs from ceremonial marriage in terms of the way in which it is entered into. While it lacks the same formalities (such as obtaining the marriage license), the other substantive limitations still apply. A formal divorce action is necessary to end a common-law marriage, just the same as a ceremonial marriage.

What are the basic elements of common law marriage?

To have a common-law marriage, the parties must first intend to be married. In addition, they must continuously cohabitate and hold themselves out as husband and wife. The “holding out” element entails the public’s perception of the couple, as well as establishing uniformity and consistency. There is essentially no such thing as a secret common-law marriage. “Holding out” might be evidenced by, among many other things: the intent and belief of the couple with respect to the relationship, opinions from members of the community as to how the community regards the couple, use of the same last name, designations on life insurance policies, wedding bands, how the parties refer to each other, and even how their bills are paid and mail is addressed.

It is important to remember, however, that not every state recognizes the doctrine of common-law marriage. According to the National Conference of State Legislatures, only nine states, including Kansas, recognize common-law marriage (along with another five that have “grandfathered” common-law marriage).

Does Missouri recognize common law marriage?

Missouri is not among the states that recognize the common-law marriage doctrine. Under Missouri Revised Statute § 451.040, “common-law marriages shall be null and void.” There is an exception for common-law marriages contracted before 1921.

In order to give full faith and credit to the laws of other states, Missouri will also recognize marriages that have been validly contracted in a different state, as long as the marriage comports with the other state’s requirements. Even if the other state recognizes the validity of a common-law marriage, however, Missouri may not recognize the marriage it if it is found to violate public policy.

What Happens to Property at Divorce?

The disposition of property can often be a contentious issue for parties seeking a legal separation or the dissolution of a marriage. As part of the dissolution process, each party will submit documents to the court that illustrate their respective incomes and expenses, as well as a statement of non-martial and marital assets and debts. During the proceeding, the court will then, pursuant to Mo. Rev. Stat. § 452.330, set aside each spouse’s own separate property and further divide the marital property and marital debts as it deems proper.

In general, any property owned by a spouse prior to the marriage remains that spouse’s sole and separate property. It is non-marital property. Marital property, on the other hand, is considered to be all of the property acquired by either spouse during the course of the marriage. But there are several exceptions. If a spouse receives property as a gift, or by means of inheritance, that property is not martial. Any property that is acquired in exchange for any property a spouse owned prior to the marriage is also not considered to be martial property. Property obtained after a decree of legal separation is excluded as well. Parties can further agree to exclude property by way of a valid written agreement.

Aside from the exceptions noted above, any property acquired during the marriage will be presumed to be martial property. Title alone is not enough to sway the presumption. Even if property is titled individually in one spouse’s name, it will be presumed to be martial. It is possible to overcome the presumption by showing that the property falls under one of the exceptions. In a similar vein, separate property that has been mixed, or commingled, with martial property does not necessarily become marital property.

When the court divides the marital property between parties in a dissolution or legal separation, it will take a number of relevant factors into consideration. The value of the non-marital property set aside to each spouse and the custodial arrangements made for any minor children are among such factors. The court will also weigh the desirability of awarding the family home to the party with custody of the children. In addition, the court will consider the economic circumstances of each spouse, the conduct of the parties during the marriage, and the contribution of each party in acquiring the marital property. The role of a spouse as a homemaker shall be taken into consideration when determining that spouse’s contribution.

Contributions by Kelly Thompson, Law Clerk

Managing Stress During the Holiday Season

While the holidays bring plenty of cheer and laughter, they also tend to bring a great deal of stress. Planning face-time with family, coordinating activities, and managing the financial aspect of the holiday season can often become overwhelming. The following suggestions from the Mayo Clinic aim to reduce holiday-related pressure and anxiety:

Stick to a budget. It might be helpful to decide in advance how much you are going to spend. The trick is to then stick to it. Remember that gifts and presents do not equate to happiness. Do not extend beyond your means. If you have a large family or are traveling, consider other gift-giving arrangements. Some alternatives include donating to a charity in someone’s name or exchanging homemade gifts.

Plan ahead to avoid becoming overwhelmed. Trying to visit all of the family in a single day can be exhausting. Spreading family visits over the course of several days will allow you to make the most of the time you do spend with relatives. If certain relatives drive you crazy, consider activities that minimize the amount of time you spend together, like a cup of coffee or a quick lunch. Establishing some organizational tools can also help minimize unnecessary stress. For example, generating lists can help keep you focused while shopping or planning meals and activities.

Be flexible and realistic. Striving for utter perfection can often lead to disappointment when things do not pan out as hoped. The ability to make adjustments along the way is essential. Do not be afraid to adopt new traditions that better suit your family’s needs. Remember that traditions can grow and change as your family does and not every year has to be exactly like the one before.

Maintain healthy habits. The holidays are full of temptation. Remember to keep everything in moderation. Overindulgence can often lead to feelings of guilt. Try to strike a balance between some indulgence and maintaining your regular habits and routines. Exercise regularly and make sure you get enough sleep. Engaging the family in physical activities together can help make those healthy routines seem a little more fun.

Be aware of your feelings. Holidays may not necessarily be happy and joyous, particularly for those who have lost a loved one. Take the time to acknowledge and work through your emotions. If you are feeling isolated, reach out by volunteering or get involved in community events. When dealing with pushy family members, do not be afraid to say no. At the same time, do not be afraid to ask for help when you are feeling swamped. Openness and honesty can prevent harboring frustration, anger, and resentment. Take some time for yourself and relax as well.

For divorced families, the holidays can often be particularly challenging. The American Psychological Association offers several key pieces of advice for the holiday season, beginning with the importance of setting aside differences and laying down the sword. Put the needs of your children first. Encourage your children to spend time with your former spouse and reassure them that you will be fine when they do. Do not put unnecessary pressure on your children. When visits are not possible, technology like Skype can help facilitate contact between family members during the holiday season.

Sources:

“Stress, depression and the holidays: Tips for coping,” Mayo Clinic, available at http://www.mayoclinic.com/health/stress/MH00030

Dr. Elaine Ducharme, “10 Tips for Managing Family Stress at Holidays,” American Psychological Association, available at http://www.yourmindyourbody.org/family-stress-during-the-holidays/

Contributed by: Kelly Thompson, Law Clerk

Appearing in Court: Appropriate Dress and Decorum

Whether you are a party to a case or a witness, appearing in court is a formal and serious matter. Accordingly, the importance of the affair should be reflected in both your attire and behavior while inside the courtroom. The following recommendations establish some general guidelines for how to present and conduct yourself in court.

Appropriate Courtroom Attire

Above all else, make sure you appear in court looking clean and well-groomed. You should be freshly bathed and have clean hair, clean nails, and clean clothing. Remove excessive or gaudy jewelry. Facial piercings and other accessories such as large ear plugs are distracting and should be removed. If you have a tongue piercing, remove it prior to entering the courtroom so that you will be easier to understand while speaking.

When dressing for court, think conservatively. Women should avoid low-cut tops or outfits that fit too snuggly. Appropriate apparel for women includes slacks and a blouse or blazer, a skirt, or a dress. For footwear, choose reasonable heels. Low-heeled, closed-toe shoes are more suitable for court than flashy platform pumps. Do not wear flip flops.

For men, slacks and a collared shirt are appropriate selections for the courtroom. Avoid wearing T-shirts, especially those with graphics, phrases, or statements printed on the front or back. Even in the summer, avoid wearing shorts. Do not wear a hat to your court appearance.

Appropriate Courtroom Conduct 

Be on time. This often means making sure you leave yourself enough time to find parking and navigate the courthouse. Do not bring your cell phone into the courtroom with you. If you do, turn it completely off.

While in court, speak and respond only when asked. When answering a judge’s question, try to limit your reply to ten words or less and avoid lengthy monologues. Be careful not to act too casually, such as leaning on the judge’s bench. Do not try to kid around with the judge or crack jokes, especially those which might be found distasteful. Keep your movements to a minimum and avoid distracting gestures.

Most importantly, be polite and respectful at all times. While tensions often run high, do not raise your voice or use coarse language. When someone else is speaking, listen politely. Do not react by sighing, laughing, snorting, rolling your eyes, or shaking your head. These types of responses are disrespectful to both the person speaking and to the court. Finally, remember to be courteous to everyone you encounter while in the courthouse and courtroom, including judges, attorneys, other parties, clerks, and bailiffs.

Contributions by Jeanne Foster, Attorney and Kelly Thompson, Law Clerk

Child Support and Children in College

In Missouri, a parent’s obligation to pay child support generally ends when the child turns eighteen years old. If the child is enrolled in college, however, the child support obligation may continue if certain conditions are met.

Under Mo. Rev. Stat. § 452.340(5), the child support obligation will continue if the child enrolls in an institution of vocational or higher education prior to the October that follows the child’s graduation from high school. An “institution of vocational education” encompasses any postsecondary schooling or training where the child attends classes on a regular basis for a fee or tuition. An “institution of higher education” includes colleges, community colleges, or universities.

For the support obligation to continue, the child must be enrolled in and complete twelve credit hours each semester. Summer semesters are excluded. If the child withdraws from a course, the credit hours for that course will not count as part of the twelve required hours.

By statute, the child must provide a transcript to each parent at the start of each semester. The transcript, or other official document issued by the institution, must indicate the courses the child has enrolled in and completed for each term. The document must also show the grades and the number of credits the child received for each course. In addition, it must reflect the courses and corresponding credit hours the child has enrolled in for the upcoming semester.

In addition to enrolling in the required number of credit hours, the child must also receive grades that allow the child to remain enrolled at the institution. Failing grades in half or more than half of the child’s courses for any given semester may terminate the payment of child support.

The child is also responsible for providing the noncustodial parent, upon request, with a copy of his or her grades. Such documentation must be provided within thirty days of receipt of grades from the institution. Child support payments may terminate if the child fails to produce the documents in the allotted time.

If circumstances prevent the child from enrolling in twelve credit hours a semester, the requirement may be lessened. A minimum of nine credit hours each semester is required if the child remains employed for fifteen or more hours a week during the course of the semester. A child with a diagnosed developmental disability or health problem that impacts the number of credit hours the child can carry will remain eligible for child support as long as he or she meets all of the other requirements.

Provided the above requirements are met, a parent’s child support obligation shall continue until the child completes his or her education or turns twenty-one years old, whichever happens first. During this time, either the obligated parent or the child can petition the court to amend the order and instruct the obligated parent to make the child support payments directly to the child.


Contributions by Kelly Thompson, Law Clerk