Recent Blog Posts

How Divorce can affect your credit

Jerry Wallentine — Tue, 15 May 2012 20:51:00 GMT

The following article was recently published by Jimmy Atkinson on his blog Ask the Advisor. This article addresses a very important issue in a dissolution of marriage proceeding, the division of debt. If not done properly or completely, outstanding debts can cause disasterous consequences to a sometimes innocent party. The fact is, a Court can order a party to a divorce to pay a certain debt, but the court cannot alter the relationship of the parties with their creditors. This means that, for example, if Husband and Wife are jointly on a credit card account, and the court orders Wife to pay the debt, if Wife does not pay, the creditor can and likely will still come after husband for payment. It is then up to Husband to pay the debt and try to recover the money from Wife in an enforcement or contempt proceeding. This is a costly and time consuming process that can be avoided with proper planning, and this is why It is important to remove names or transfer debts into the name of the person who is obligated to pay prior to the divorce.

The article contains additional infomation and is reproduced in its entirety below

How Will My Divorce Affect My Credit? In the unfortunate event that you get a divorce, worrying about your credit score may be the last thing on your mind. However, even during the most trying times of our lives, the world keeps spinning and the fact is, divorce can greatly impact your finances and credit history. If you are seeking or have finalized a divorce, it is time to assess what needs to be done to preserve or restore your financial reputation. Below, we will explain how divorce can affect your credit, as well as what you should do before and after your separation.

Divorce and Your Credit

You should know the ugly truth first: even the most amicable divorce can leave you in financial ruin. In the course of your marriage, you most likely merged all of your finances, from your bank accounts to ownership of property. A majority of marriages also have one partner who takes most of the responsibility when it comes to paying bills, which inadvertently leaves the other person in the dark about a lot of things. All of these arrangements, once just a common aspect of a committed relationship, contribute to credit problems upon separation.

When you get a divorce, it is your marriage that is ending and not your shared financial responsibilities. Even if your spouse accumulated some debt without your knowledge during the marriage, you may be held responsible for it after the divorce. That is, of course, if you don't take the proper actions and sever all financial ties with your ex (excluding any child or spousal support, of course). This doesn't have to be as nasty as it sounds, either. In fact, most divorcees are pretty eager to get on with their lives, rather than dragging out the affair with bitter opposition. Not all divorces are as heated as the ones you see on television. However, even if your partner is being reasonable about things, it doesn't mean that creditors will show the same cooperation. That is why the ties must be severed sooner rather than later.

Protecting Your Finances Before the Divorce

While you may not want to think about money when you are experiencing a traumatic life change such as divorce, being practical may save you from even more heartache down the road. The best way to keep your credit safe from divorce is to start making changes as soon as the two of you decide to separate. The following steps should be taken:

Assess Your Responsibilities — You need to be aware of all the accounts you are responsible for, including bank accounts, mortgage loans, credit cards and utilities. Even if you and your spouse have decided who gets what property, you need to make sure that the right person is solely responsible for their respective belongings.
Dissolve All Joint Accounts — Rather than trying to divvy up what is owed on your joint accounts and asking your ex to honor their half, you should remove the right person's name from the accounts or cancel them completely. Make sure the both of you do the canceling together, legally. The first place to start is the bank, as most couples share checking and/or savings accounts when they are married. Also, if you are taking possession of one car with both of your names on the note, have your spouse's name removed. Make sure that your spouse does the same thing with any property they take. (If you are still paying for any of this property, then you may have to refinance to get the loan down to one name.) Any bills you paid together, such as your utilities, should be put in one name. As for credit cards, you can try to work with the credit card company and have them transfer half of the balance to two different accounts in anticipation of the divorce.
Sell the House — A common mistake that people make is giving their house to their spouse after the divorce. This may be due to abandonment or perhaps a well-intentioned arrangement because there are children involved. However, the best thing to do is to sell the house together and divide the profit. After all, no one can predict the future. Countless divorcees have found their credit ruined because their ex let their house go into foreclosure. Explaining to creditors that you are now divorced won't make you any less responsible for a mortgage with your name on it.
Divide Any and All Shared Cash — In the process of allocating debt, canceling accounts and selling property, you and your spouse will probably be left with some liquid assets. You should, perhaps with the assistance of your divorce lawyers, fairly divide that cash before you walk out of each other's lives. This is the legal, sensible and ethical thing to do.
Document Everything — Once the courts become involved and your divorce is finally underway, make sure that all of your financial arrangements and agreements are documented. That way, if there are any discrepancies down the road (such as a creditor bugging you about your ex's car payments), you can refer anyone to your official court records. While this may not be a surefire way to get a collector off of your back in a timely manner, you will have the law on your side and the means to protect or restore your credit.

Saving Your Credit After the Divorce

Hindsight is always 20/20 and many people get a divorce without preparing their finances beforehand. This is understandable, as it may be hard to set aside emotions long enough to get everything in order. However, not doing so can result in serious issues with your credit score. If you have already finalized your divorce and are now being held responsible for your former spouse's debts, make sure you do the following.

Check Your Credit Score — This is something you should do at least once a year, but it is especially important after major life events. By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.
Separate/Cancel All Joint Accounts — Even if you ended your divorce on very bad terms, you simply must have a sit-down with your ex. Any and all accounts, debts and property that you still share should be separated, canceled or sold. In other words, you must separate your finances like you have separated your relationship. This can be most easily accomplished with your former spouse's help. If he/she won't help, it is time to call your lawyer. Either way, your financial ties must be severed.
Notify Creditors of Your Divorce — Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts. Call all of the creditors who have been bothering you and alert them to this fact. In a perfect world, they would apologize for the inconvenience and never call you again. However, it may take awhile before such calls cease entirely. In addition to notifying the proper collectors, you should right a letter to them as well. That will help them to expedite their file updates.

Divorce is an ugly thing, no matter how it is carried out. The end of a marriage is a traumatic event that is only compounded by high court costs and possible credit problems after everything has settled. If you are thinking about divorce, follow the proper steps in separating you and your spouse's finances. Otherwise, your credit score may plummet until everything is in order. The modern world revolves around credit, so a low credit score can have a devastating effect on your life. By taking the measures listed above, you can avoid any further distress than divorce has already caused you.

Quick to Charge Misdemeanors

Jerry Wallentine — Mon, 07 May 2012 21:05:00 GMT

Roughly one million felony convictions are filed every year compared to 10 million misdemeanors. As a result, many argue that due process is wholly ignored for defendants accused of a misdemeanors. Criminal defense lawyers take their duty, as a protector of the Constitution very seriously, and will fight to protect the rights of their clients accused of any crime, even a misdemeanor. But with so many misdemeanor filings, it could be extremely difficult to give the attention required to each case. If a public defender is assigned tons of cases, albeit misdemeanors, there simply isn't time to adequately investigate and research all the legal issues as well as factual circumstances of each case.

Unfortunately, the public defender have at times been referred to as public pretenders. I can say with confidence, that the 10th Judicial District Public in Johnson County, Kansas are far from pretenders. In fact, they are competent and very hard working. However, they focus on felony allegations. There is a system set up for the misdemeanors, where numerous private attorneys in the county take on appointed cases for the misdemeanor cases. This spreads the work out more evenly and allows the criminal defense attorneys to focus on their case.

But what about areas where the appointment lawyers are too inundated with cases? Even in Johnson County, KS, if you were to take too many cases, you could potentially have a difficult time keeping up with them all. There could be pressure by the system, including the judges, prosecutors, and defense lawyers into pleading guilty. To compound the problem, some people simply want to get out of jail and are quick to take a deal, if it means they get out right then. But the quick fix simply is not everything it's cracked up to be. You are left with a criminal record. A criminal record can seriously complicate a person's life. It can ruin job prospects, affect eligibility for professional licenses, interfere with child custody, food stamps, public housing, student loans, health care, and can even lead to deportation. Furthermore, you could be left with a stringent probation in Johnson County, where many people end up failing and going back into custody.

Why are so many cases filed? Politics. Money. The system. The police are quick to make and arrest and just "let the court sort it out." The problem is, once you are in the system, there is pressure to "sort it out" by simply pleading guilty. And that can be devastating. That's why I especially disdain Overland Park's arrest policy during domestic violence investigations. In essence, if they are called out, somebody is going to get arrested. It will most likely lead to actual charges in court with first being carefully scrutinized by the prosecutor who is supposed to be acting for justice, not politics.

Is the Jury Selection Process Too Invasive?

Jerry Wallentine — Wed, 25 Apr 2012 19:22:00 GMT

Other than hearing a verdict in favor of my client, my favorite part of trial is voir dire. This is the jury selection process. As a lawyer, it's my chance to have a conversation with the potential jurors and try to determine where their priorities, beliefs, and values rest. I try not to purposefully harass or invade their privacy, as it's unwise to isolate the jury. On the same hand, it's important to really know your jury. Jurors are funny as you never know what they are going to do or exactly what they are thinking. Voir Dire is the lawyer's opportunity to consider any possible bents the jurors have which may hurt the client of the attorney. Voir Dire is a necessary part of the legal process at trial.

Under the Sixth Amendment of our Constitution, we the people are afforded a jury by our peers. In order to do that fairly, satisfy due process, voir dire is essential. However, there is understandable concern that the rights of potential juries are invaded.

A law professor and associate dean, for my alma matter, University of Kansas School of Law, recently wrote an article about this very subject. Professor Melanie Wilson's articel contends that potential jurors are so regularly exposed to privacy-invading, personal questions during voir dire, that many lie and withhold important information. She states, "It's ironic that most people have fewer rights when they're in the courtroom than they had before they went inside." Professor Wilson even offers alternatives to the current jury selection process.

Imagine, if you are a criminal defendant and the jury has the power to determine your guilt or innocence. Your future is in their hands! Wouldn't you want to know about the jurors? Or, what if somebody seriously injured you for the rest of your life. The jurors have the power to either award you a judgment or not. If they have a bent toward not awarding damages, that would be something you might want to know.

I doubt that Voir Dire will be taken away any time soon, as the Supreme Court has expressed the importance of this. However, if changes are to come, I hope us lawyers are still able to have valuable and meaningful conversations with the potential juries.

Madoff investment does not reopen divorce settlement

Jerry Wallentine — Tue, 24 Apr 2012 23:06:00 GMT

From the Wall Street Journal:

ALBANY, N.Y. — New York's top court says a divorced Manhattan lawyer is stuck with his losses from an investment with disgraced financier Bernard Madoff that tanked two years after his divorce settlement.

The Court of Appeals has rejected Steven Simkin's argument that he and ex-wife Laura Blank made a mutual mistake in valuing the $5.4 million fund that was actually "nonexistent."

Separate Property not Transmuted into Marital Property

Jerry Wallentine — Mon, 23 Apr 2012 23:40:00 GMT

To show transmutation of separate property to marital property requires evidence of owner’s clear intent to contribute the property. Commingling is not enough. Wife’s contributions to Husband’s separate property did not transmute into marital property, but did support an equalization payment to Wife in proportion to her contribution. Court of Appeals awards Wife slightly less than Circuit Court.

Sheilafaye Goodwin, Respondent, v. Charles Lewis Goodwin, Appellant

Missouri Law pertaining to Marital and Separate Property

Section 452.330 governs a trial court’s distribution and classification of marital and non-marital assets. That section requires that the trial court set aside to each party their non-marital property and divide the marital property equitably. Generally, property owned by one spouse prior to the marriage will remain non-marital property and will be awarded to the owner of that property. Moreover, "property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property." Property acquired before the marriage and which remains titled in the name of the original owner is separate property unless the record shows that the owner intended to change the status of the property from separate to marital.’ By contrast, if the owner intended to change the status of the property from separate to marital, it becomes marital." To transform the nature of the property from separate to marital, "[a] ‘clear intention’ to contribute to the community or to the other spouse must be demonstrated." "[C]ourts must set aside a spouse’s separate property in dissolution cases, and property is deemed separate or marital based on the source of funds that financed the purchase."

In other words, commingling of separate property and marital property alone is not sufficient to re-classify separate property as marital property. There must be other evidence of an INTENT to tranfer ownership from separate property to jointly held, or marital property.

Awarding Tax Dependencey Credit to non-custodial spouse: No income shown

Jerry Wallentine — Tue, 17 Apr 2012 21:45:00 GMT

New Case Law: CB v. DB Missouri Court of Appeals, Southern District - SD31614

Notwithstanding the fact that the Missouri case law generally states that tax benefits must go to the custodial spouse unless the trial court expressly finds it unjust or inappropriate to do so, our western district has held that noncompliance with Form 14 directions is not reversible error unless the appellant is prejudiced thereby. Sarwar v. Sarwar, 117 S.W.3d at 171. Appellate review is for prejudice, not mere error Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. 2009).

“Here, Wife does not argue or suggest any prejudice, nor could [the Court] glean any from the scant record that she has provided. In fact, the indication is otherwise. In her post-trial motion, Wife represented to the trial court that her only income during the two-year history of litigation was unemployment benefits, which had expired; that she had been unable to obtain employment; and that her gross income was “zero.” By contrast, Husband was earning an income, and apparently could benefit from the tax exemption, while Wife seemingly could not. A judgment will not be reversed unless an appellant is prejudiced by an error that materially affected the merits of an action. Rule 84.13(b).”

Wife did not meet her obligation to show that she was entitled to appellate relief and the judgment was affirmed.

Prosecutors Fired For Brady Violations

Jerry Wallentine — Mon, 16 Apr 2012 16:09:00 GMT

Two Assistant District Attorneys in Oklahoma were recently fired for allegedly withholding favorable evidence from the defense. The prosecutors' misconduct is known as a Brady Violation.

David Prater, the Oklahoma County District Attorney, said that these prosecutor did not turn over an inconsistent statement by a witness. Therefore, on April 5, he fired them. He also forwarded the information for possible disciplinary action as well as the State Attorney General's office for criminal investigation.

Prater did the tough but right thing in this case. One reform that could get around some of these problems would be for states to adopt an "open file" policy. That would remove from prosecutors the discretion to determine what evidence is and isn't exculpatory as they'd have to turn everything over. However, this kind of policy requires sanctions if it isn't followed. In Johnson County, Kansas, where I do the majority of my criminal defense law practice, the district attorney's office has an open file policy. This helps ensure fair play and limits Brady violations and their office should be commended for generally providing all information. However, I have not been made aware of set sanctions for failing to provide all information. Furthermore, there are times when not everything is provided until after the preliminary hearing. For example, recordings which involve a confidential informant (CI) are not revealed unless you push the issue. Also, there are times when you have to actively pursue some discovery. For example, sometimes the prosecutor simply doesn't have some videos or important information in their file. Having an open file policy doesn't necessarily alleviate all concerns about Brady violations. Alas, the prosecutor has a duty to provide information they reasonably should know and have available to them. In other words, they can't just close their eyes because they haven't seen the video which was easily available to them if they simply asked for it. For example, if there is a video at a department store of an alleged theft, it is arguable that they have a duty to get it, especially if it arguably has beneficial or exculpatory evidence on it for the defense. As a criminal defense lawyer, it's important to actively participate in the discovery process

Missouri relocation statute requires strict compliance with notice

Jerry Wallentine — Mon, 09 Apr 2012 22:48:00 GMT

Under § 452.377, RSMo, relocation of child’s residence requires strict compliance to statutorily required notice before strict compliance with time to file objection to relocation is required. Abraham v. Abraham,No. 31099 (Mo. App. S.D., October 26, 2011), Rahmeyer, J.

A dissolution of marriage was granted to the parties in April 2006. In September 2010, the Mother sent a certified letter of her intention to relocate their child’s residence to Orlando, Florida. The Father did not file an objection to the move until 37 days after receipt of the letter. The Mother asserted that the tardy objection was ineffective to preclude her absolute right to the relocation in accordance with an opinion issued in Baxley v. Jarred, 91 S.W. 3d 192, 199 (Mo. App. W.D. 2002). In Baxley, it was held that an objection to relocation that was not timely filed gave the relocating party an absolute right to relocate and that the only issue left for the court was the appropriate adjustment in parenting time between the parties. The trial court rejected that theory and denied the Mother her request to relocate. She appealed.

Held: Affirmed.“Mother claims that ‘strict compliance’ with the elements of a relocations letter is not required….” The Father asserted that the Mother’s failure to provide known details of the address to which relocation is intended renders her notice effective.

“We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.”

“[T]he notice requirement of § 452.377 must be strictly complied with.” Here, the Mother did not give notice of the actual specific address and mailing address of her new intended residence although she knew it. If one party must be held to compliance with the 30 day rule to object, the relocating party must be held to strict compliance with the notice provisions that trigger that obligation to act.

Concurring Opinion: “Waiver is the intentional relinquishment of a known right.’” In Baxley, neither party complied with the requirements of the statute as to notice and time to object. Yet, they weren’t treated the same in that the failures of the notice to relocate were forgiven while the failure to file a timely objection was not. However, in the instant case they were each given their day in court regarding the relocation. Thus, neither party was prejudiced by such non-compliance.

Rather than require strict compliance with the statute in all aspects here, the opinion asserts that the proper analysis is whether a party was prejudiced by such non-compliance. Thus, in the instant case, neither party complied with the statutory requirements and a full hearing of the relocation issue ensued. That was the proper result, not for failure of strict compliance, but rather because the trial court gave each party full and fair hearing on the relocation issues.

Concurring Opinion #2: There should be no “absolute right” to a default on the issue of relocation when an objection is not timely filed. There should be consideration given to the facts of the case because the welfare of the child is the paramount concern.

Source for Post: Missouri Bar Courts Bulletin.

Mere harrassment insufficient for restraining orders

Jerry Wallentine — Wed, 04 Apr 2012 21:09:00 GMT

Under section 455.010(13), "stalking" occurs when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Alarm" means to cause fear of danger of physical harm;

(b) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted

contact; and

"Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection." Towell v. Steger, 154 S.W.3d 471, 476 (Mo. App. S.D. 2005). Because harm can result from an abuse of the Adult Abuse Act, "trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection." Overstreetv. Kixmiller, 120 S.W.3d 257, 259 (Mo. App. E.D. 2003).

Petitioner did not claim Appellant was following her. Petitioner did not offer any evidence showing that Appellant had ever engaged in any violent acts or that Petitioner had any other reason to believe Appellant was a violent person. Petitioner presented no evidence that Appellant said anything, made any gestures, or otherwise communicated any specific thing to Petitioner that would cause a reasonable person to believe he or she was in danger of physical harm from Appellant. As a result, no substantial evidence supported the existence of this necessary element of stalking. Appellant's point is granted.

The judgment was reversed, and the cause was remanded to the trial court which is directed to vacate the full order.

Supreme Court Allows Strip Searches

Jerry Wallentine — Tue, 03 Apr 2012 13:47:00 GMT

Should police be able to strip search a person? The Supreme Court thinks so. The United States Supreme Court has now paved the way for the utilization of strip searches by law enforcement when any arrest occurs. Well, surely that would be limited to more serious offenses, right? Wrong! It's allowed for any arrest, including a misdemeanor! In fact, the briefs cited examples such as unpaid parking tickets.

The five justices who made up the majority decision, cited terrorism, public safety and other reasons for their justification. They didn't believe that police would abuse this ability. The news and numerous stories of abuse would tend to make one believe otherwise. It should be noted that none of the justices currently on the Supreme Court were criminal defense attorneys. As lawyers, only two of them even have experience in criminal law.

Missouri child support proceedings

Jerry Wallentine — Wed, 28 Mar 2012 22:07:00 GMT

In Missouri, there are two primary ways that a non-married parent can seek to establish child support, judicial and administrative. A judicial action is through the circuit court, and an administrative action is through the Family Support Division. The Division is an administrative agency which has the power to issue binding orders for child support, which may or may not later be filed as a judicial action in the appropriate circuit court. The agency has their own administrative process, where a case worker calculates child support on information provided by the custodial parent, and the non-custodial parent is then served, usually by mail, with the notice of an order. The non-custodial parent is given the opportunity to dispute the amount calculated by the case worker, and request a hearing within a certain number of days. If the non-custodial parent does not act, then the order becomes final, and the non-custodial parent is bound without further legal process. However, if a hearing is requested, then a telephone "trial" before a hearing officer is conducted, and the child support is determined based on the evidence presented. Also, a parent can petition the circuit court for judicial review of the administrative order within 30 days of the entry of an administrative order, even after an administrative hearing.

However, the non-custodial parent must know that the hearing docket is backlogged for many months, sometimes even a year, and even after the hearing is conducted it may be many more months before the order is issued. Once the order finally is issued, it is set to take effect all the way back to the date that the case was started, so the non-custodial parent may have a year or more of back child support simply because of the slow administrative process, even though there was no order in effect for those months. This can negatively affect the obligor's credit, and the arrearage is usually assessed at an additional amount per month, basically raising the child support by as much as a few hundred dollars. Also, once all of this is over, there is an order for child support, but the agency does not have the power to issue orders for custody or visitation, and if the non-custodial parent is the father, essentially there are no legal rights established, other than the "right" to pay child support

The best course of action to take when served with an administrative action for child support is to immediately consult with an attorney. At a minimum, the attorney can represent the non-custodial parent at the administrative hearing to ensure the proper evidence is before the agency and that the support amount is calculated properly. But more importantly a good child support attorney may be able to, in effect, "move" the case to a circuit court before a judge through a judicial action, establish legal custody or visitation rights, ensure paternity is determined conclusively, terminate the administrative action, and remove the family support division from the case. In a judicial action, unless state debt or interest is in issue, the Family Support Division or other state agency will not participate in the case. Timing is everything however in dealing with these cases, so consulting with an attorney immediately is critical to avoid a potential financial mess.

No contempt found without intentional and contumacious conduct

Jerry Wallentine — Wed, 21 Mar 2012 01:32:00 GMT

The Circuit court ordered re-financing of the house after divorce. At the hearing on a subsequent contempt action, the circuit court found that failure to comply was not contemptuous because party did not have the financial ability to comply with the order. Record supports such finding. The court stated that "A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation “The alleged contemnor then has the burden of proving that person's failure to act was not due to her own intentional and contumacious conduct."

The second point on appeal was the child custody modification. The court stated:

"'Under § 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to [that] decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child."A motion to change from joint custody to sole custody requires a showing that the change in circumstances is substantial.""[T]he parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification."Thus, in ruling on a motion to modify from joint legal to sole legal custody, the trial court must first determine whether the evidence establishes that a substantial change has occurred in circumstances of the child or the child's custodian; and, if so, it must then consider whether the best interests of the child would be served by modifying custody.

A Substantial change in circumstances includes parents’ failure to communicate for eight months.

The entire opinion can be read here.

Temporary breaks in schooling permissible under Missouri child support rule

Jerry Wallentine — Tue, 13 Mar 2012 18:41:00 GMT

Child support in Missouri can continue after the child turns 18, and until 21, if the child is attending a post high school education program, provided that several requirements are met. (See RSMo section 452.340.5 below in the extended post). One such requirement is that the child be continuously enrolled in the education program. The Court of Appeals has held that temporary breaks during the education, in this case a vocational program, do not violate the continuous enrollment requirement. The Court stated that the statute clearly contemplates a reasonable semester-long break, which is the summer break in a traditional college schedule, from post-secondary schooling. The statue does not require a post-secondary student to attend school for over a year without a break, or until 21 with no break whatsoever.

In the recent case, the student was attending a vocational program that had a course schedule in 60 week blocks (a year and a few months), and the non-custodial parent attempted to terminate the child support and emancipate the child when the child took a 10 week break, not enrolling in the next session immediately after the previous one. The trial court agreed and ordered the child emancipated, but the Court of Appeals reversed, stating that a child should not have additional burdens placed on him or her simply because they attend a vocational program rather than a traditional college. See below for the complete text of the relevant statute.

RSMo section 452.340.5, pertaining to post secondary education requirements for child support, reads as follows:

If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course. When enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement. Upon request for notification of the child's grades by the noncustodial parent, the child shall produce the required documents to the noncustodial parent within thirty days of receipt of grades from the education institution. If the child fails to produce the required documents, payment of child support may terminate without the accrual of any child support arrearage and shall not be eligible for reinstatement. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subsection. If the child is enrolled in such an institution, the child or parent obligated to pay support may petition the court to amend the order to direct the obligated parent to make the payments directly to the child. As used in this section, an "institution of vocational education" means any post-secondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any community college, college, or university at which the child attends classes regularly. A child who has been diagnosed with a developmental disability, as defined in section 630.005, RSMo, or whose physical disability or diagnosed health problem limits the child's ability to carry the number of credit hours prescribed in this subsection, shall remain eligible for child support so long as such child is enrolled in and attending an institution of vocational or higher education, and the child continues to meet the other requirements of this subsection. A child who is employed at least fifteen hours per week during the semester may take as few as nine credit hours per semester and remain eligible for child support so long as all other requirements of this subsection are complied with.

No Child Abandonment without Knowledge of Birth

Jerry Wallentine — Tue, 06 Mar 2012 23:11:00 GMT

Recent Ruling: Termination of parental rights requires proof of statutory grounds by clear, convincing and cogent evidence, and proof of child’s best interest by a preponderance of the evidence. In an action to terminate parental rights, the statutory ground of abandonment means six pre-petition months of “a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.” Neglect means continuous failure to provide. The juvenile officer alleged and proved that father had no contact with child for six months before amended petition. But evidence showed that father learned of child’s existence only two weeks before filing of amended petition and, on doing so, attempted to develop relationship. Such evidence is not substantial evidence of abandonment or neglect.

Missouri Court of Appeals, Southern District - SD31470

The opinion can be read here.

Source for Post: The Missouri Bar

Lawmaker Proposes Simple Possession To be a Misdemeanor Instead of a Felony

Jerry Wallentine — Wed, 29 Feb 2012 22:11:00 GMT

California Senator Mark Leno, a democrat from San Francisco proposed earlier this week that simple drug possession be charges be misdemeanors instead of their current felony status. He argued that such a change would reduce overcrowding in the state's prisons. The senator also argued, "In fact, time behind bars and felony records often have horrible unintended consequences for people trying to overcome addiction because they are unlikely to receive drug treatment in prison and have few job prospects and educational opportunities when they leave."

It should be noted that the proposed law is for "simple" possession, and does not apply to drug possession with an intent to sell. Drug Possession with the intent to sell is a much more serious allegation with tougher obstacle for a criminal defense attorney to deal with.

His bill, Senate Bill 1506 is co-sponsored by the ACLU and the NAACP. Thirteen other states already have this law. The new law would apply to possession of cocaine, heroin, hashish, methamphetamine and amphetamines, and others. It could save tax payers millions of dollars.

If Kansas lawmakers were to enact such a law, it would change a drug possession charge from a Level 4 drug felony, to a class a misdemeanor. The misdemeanor still carries a potential 1 year jail sentence. However, as a Kansas criminal defense lawyer, I don't anticipate Kansas legislators doing this anytime soon.