Section 14.4 In Cases of Divorce

• Library: Estate Planning 2013 Supp

1. (§14.4) In Cases of Divorce

Current Missouri law provides that the parties to a marriage, attendant upon a separation or dissolution, may enter into a written separation agreement determining the rights of each party in regard to property and maintenance. See § 452.325.1, RSMo 2000. In the absence of such an agreement, the trial judge in a dissolution proceeding or legal separation possesses broad discretion in dividing the property of the parties and granting maintenance.

Upon a divorce, property owned by the parties to the marriage is characterized as “marital” property or as “nonmarital” or “separate” property. Before 1984, Missouri courts determined how particular property was characterized by looking at the ownership of the property as title was taken; property was classified as separate or marital at the moment title was taken. Moritz v. Moritz, 844 S.W.2d 109, 112 (Mo. App. W.D. 1992). In 1984, the Supreme Court of Missouri adopted the “source of funds rule,” Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc 1984), under which the “property is considered to be acquired not when title passes, but as it is paid for, and ‘[i]ncremental property values are allocated proportionately to either marital or separate estates according to the source of funds used to purchase the property,’” Moritz, 844 S.W.2d at 112 (citation omitted). The Missouri legislature codified this rule in § 452.330.2, RSMo 2000. Section 452.330.2 defines “marital property” as including “all property acquired by either spouse subsequent to the...