Help me help a friend.

[CJane]

What is the name of your state? MO

Ok, for real, this is for a friend.

She's been separated for ... 3 years I think. Has custody of the twins who're 7-ish. No other children. Was given sole custody via a DVRO she filed against him when she left. He was to pay CS (again via the DVRO). No charges were ever filed against him, so no convictions, but police reports were made, the RO granted after a hearing, etc.

He has exercised visitation very sporadically... as in MAYBE once/month. They live approx 5 miles from each other. When he does have visitation, he almost always returns the kids early or at the very least, attempts to. Has had them overnight once. As of today, he hasn't seen them since the first of Feb.

My friend is planning to file for divorce. She's attending the pro se clinic and going that route as legal aid turned her down (even though she has no income beyond CS and there are DV issues).

I want to help her as much as possible. She's hoping for sole custody, as his violence towards her seems (to her) to preclude joint decision-making. She wants to have the order state that visitation is 'as agreed' rather than every other weekend, so that she can plan for specific times he'll actually have the kids rather than getting their hopes up repeatedly. She's already filed for CS through CSE since the RO is expired and therefore so is the custody/child support order.

We're working on a few assumptions, and this is where I need help.

1) That he will avoid service. He's just not the type of guy to answer the door for the sheriff.

Is it reasonable to have her father/sister/whoever serve him rather than hiring a process server/paying the sheriff?

2) That he won't answer the motion. What happens then? Does that make it 'uncontested'?

3) I know that in MO both parents are supposed to submit a parenting plan to the court. Statute doesn't actually address whether or not it has to be served on the other parent, or WHEN it has to be submitted to the court. She's hoping she can serve him w/the divorce paperwork and work on the parenting plan after that - depending on his reaction to getting served.

4) That even if he's served, he just won't show up for court. How to prepare her to request a default judgment?

 

[LdiJ]

What is the name of your state? MO

Ok, for real, this is for a friend.

She's been separated for ... 3 years I think. Has custody of the twins who're 7-ish. No other children. Was given sole custody via a DVRO she filed against him when she left. He was to pay CS (again via the DVRO). No charges were ever filed against him, so no convictions, but police reports were made, the RO granted after a hearing, etc.

He has exercised visitation very sporadically... as in MAYBE once/month. They live approx 5 miles from each other. When he does have visitation, he almost always returns the kids early or at the very least, attempts to. Has had them overnight once. As of today, he hasn't seen them since the first of Feb.

My friend is planning to file for divorce. She's attending the pro se clinic and going that route as legal aid turned her down (even though she has no income beyond CS and there are DV issues).

I want to help her as much as possible. She's hoping for sole custody, as his violence towards her seems (to her) to preclude joint decision-making. She wants to have the order state that visitation is 'as agreed' rather than every other weekend, so that she can plan for specific times he'll actually have the kids rather than getting their hopes up repeatedly. She's already filed for CS through CSE since the RO is expired and therefore so is the custody/child support order.

We're working on a few assumptions, and this is where I need help.

1) That he will avoid service. He's just not the type of guy to answer the door for the sheriff.

Is it reasonable to have her father/sister/whoever serve him rather than hiring a process server/paying the sheriff?

Can she have him served at work? Its a bit harder for him to dodge service there.

2) That he won't answer the motion. What happens then? Does that make it 'uncontested'?

To a degree, yes, that means he is not contesting the divorce or any of its provisions.

3) I know that in MO both parents are supposed to submit a parenting plan to the court. Statute doesn't actually address whether or not it has to be served on the other parent, or WHEN it has to be submitted to the court. She's hoping she can serve him w/the divorce paperwork and work on the parenting plan after that - depending on his reaction to getting served.

I lean towards submitting it with the petition for divorce. Its cleaner and may avoid multiple trips to court.

4) That even if he's served, he just won't show up for court. How to prepare her to request a default judgment?

She needs to have an order written up for the judge to sign when she goes to her first hearing...just in case.

I am also going to add, that once she files, she really needs to be watching her back a little extra carefully, particularly since the RO has expired.

 

[CJane]

Can she have him served at work? Its a bit harder for him to dodge service there.

Possibly. He's been 'unemployed' for months... she recently found out he's working again, and doesn't think he knows that she knows. So that's an option. If he's still employed when she files. And that's anyone's guess.

To a degree, yes, that means he is not contesting the divorce or any of its provisions.

Ok. That's what I thought.

I lean towards submitting it with the petition for divorce. Its cleaner and may avoid multiple trips to court.

That's what she's leaning towards too. I just wonder about him having ALL the information ... especially w/the RO being expired.

She needs to have an order written up for the judge to sign when she goes to her first hearing...just in case.

Ok. I'll make sure she has one prepared... she's gathering samples from other friends who have custody orders/divorce decrees so she can copy/paste and create one.

I am also going to add, that once she files, she really needs to be watching her back a little extra carefully, particularly since the RO has expired.

She will. We've talked about it extensively. She lives directly behind her landlord, you can't actually get to her house w/out going through their yard... her sister lives nearby, as does D'man and I'm not too far away. I'm going to make sure her cell phone is paid up and functioning, and then do a lot of hoping. She's prepared to go get another RO if she feels it's necessary, but then you have the problem of service w/that too. And the fact that he'll think nothing at all of violating.

 

[wileybunch]

CJane, this link describes the process of a default divorce judgment in Missouri:

http://www.williamquick.com/divorce_faq.html
What happens if the respondent doesn't file an answer to the petition within the 30 days after being served?

In that case, the court may grant a "default judgment" against the respondent. Because the respondent failed to file an answer, he/she is considered to be consenting to all the relief requested in the petition. The court will hold a "default and inquiry" hearing and will usually grant to the petitioner everything that was asked for in the petition, including a dissolution of marriage, a division of marital property in the manner requested by the petitioner, custody and child support orders where minor children are involved, and even a maintenance award and a judgment for attorney fees and court costs in the suit--so long as these things were requested in the petition. Thus, the consequences for the respondent who fails to file an answer can be quite severe. The law does permit a respondent to return to court after the default judgment has been entered and seek to have it "set aside" or undone, so long as the respondent does so within a "reasonable time" and can demonstrate very good reasons for having failed to file the answer. The court may or may not decide to set aside the earlier judgment, as it sees fit.

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It mentions that even after the "default and inquiry" hearing where the original petition can be granted, he can ask for it to be set aside. This happened to me in CA -- ex simply did not respond to the petition and a default judgment was entered -- after notice it was going to be entered -- and then months later ex appealed it. And, got the judge (pro tem) to throw the whole thing out, making us married again. Your friend needs to be prepared to have everything in her petition that she would want granted since if a default is taken, she can't add things at that time.