Divorce is the common term for ‘dissolution of marriage’ and it presents a complexity of legal issues unlike any other proceeding.  Missouri’s marriage statutes 452.025-452.999 RSMo 2009, treat marriage as a shared economic enterprise, as a result, divorce naturally involves lots of complex stuff.

That said, what exactly is a divorce?

A divorce is a judicial decree by which a valid marriage is dissolved. From a legal standpoint, the divorce process will divide the couple’s assets and debts; determine the future care and custody of their children; and give each person the legal right to marry someone else.

MO is a ‘no-fault’ jurisdiction.

In years past, in order for a divorce decree to be granted, one of the parties had to be at fault; they cheated, they were physically/mentally abusive, addiction, or some other wrongful act….Lawmakers purposely made it difficult to get a divorce because they wanted to limit the number of divorces.  Why?  Public policy: lawmakers believed that marriage was good for society and a two parent household was good for the children and that marriage lent a certain security to society.  Fault was really important because it could limit the amount of award and custody/child support of the partner found at fault.  Of course there were defenses to fault, but this only resulted in protracted, expensive litigation.  Now, however, the idea of fault is no longer applicable.  Rather the parties must state that the marriage is irretrievably broken or the couple has irreconcilable differences.

Residency and Jurisdiction

Each state has residency and jurisdiction requirements to file a Petition for Dissolution and those requirements vary state to state.  Addtionally, Missouri requires a ‘cooling off’ period, pursuant to section 452.305(1) RSMo 2009, whereby the parties must wait 30 days between the filing of the petition and the granting of a dissolution decree.  The 30 day waiting period is a requisite for subject matter jurisdiction of the court and is, therefore, not able to be waived by the parties.

There is no express statutory authority in MO giving approval to these contracts, conversely, there are no statutes against them.  That said, in MO prenups are examined very closely to make sure the signers made an informed decision.  In Hosmer v. Hosmer, the MO Supreme Court observed that “the relation of a man to a woman  he is about ot marry is a confidential one in an exacting and stringent sense…he carries the burden of showing that any antenuptial contract entered into under the glow and trust of that tender relationship was entered into fairly.”  In other words, the Court wants to make sure love did not cloud your judgment.

So at the end of the day, a prenup is a valid, binding contract, and both parties can spell out almost anything they want in the contract.   Although the great majority of prenups in MO follow a standard form and generally adhere to normal principles, the contract is not limited and in some cases couples have negotiated penalties for infidelity, the number of days between the time they are served with divorce papers and the time they must vacate the marital home and who gets the pets.

To overturn a prenup, the spouse seeking to overturn will have to show that they did not understand what they were signing when they entered in to the contract, but it’s not enough to just allege that, the petitioning party must then prove that they were unclear on what they were doing.  For example, if there was little or no time to consider the contract or take it to another attorney for review or coercive behavior was used to make you sign, then those are good reasons why you the contract should be overturned.

If you are successful in getting the prenup voided, then the statutory rules on Dissolution apply.