Cline, Braddock & Basinger

Missouri Small Estate Affidavits

Wed, 15 Nov 2023 16:14:00 GMT

Information provided on this page is for educational use only. Accessing this page does not give rise to an attorney-client relationship, and the information provided should not be regarded as legal advice. Laws of the State of Missouri are subject to change, and there is no warranty, express or implied, that the information included on this page is still accurate at the time of access. Please consult a licensed Attorney to discuss the specifics of any legal matter. Attorneys at Cline, Braddock & Basinger can be reached at (573) 443-6244

Introduction

Because formal probate estates tend to be an expensive, time-consuming, and complicated process, many people often seek alternative ways of distributing a decedent’s estate. Luckily, if a decedent has a small estate, a full probate estate is not required and can instead be distributed with a Small Estate Affidavit. In Missouri, an estate is considered a “small estate” when value of a decedent’s real and/or personal property totals less than $40,000.00 after debts are paid.

Process of a Small Estate

Typically, the Small Estate Affidavit process takes two to three months from start to finish. (Whereas, a formal probate estate takes a minimum of 6 months to close!) An affiant, the person filing the Small Estate Affidavit, must be either (a) the Personal Representative named in the decedent’s Last Will and Testament or (b) an heir to the decedent’s estate. Additionally, an affiant must wait at least 30 days from the decedent’s date of death before filing a Small Estate Affidavit in the county where the decedent last resided.

Once 30 days has passed and Small Estate case can be opened, the affiant must file the follow documents with the Court:

Additionally, if the value of the decedent’s assets is between $15,000.00 and $40,000.00, a Notice to Creditors must be published in a local newspaper once a week for two consecutive weeks. While many courts take care of this step of the process themselves, this does require an additional fee when filing. If the small estate assets total under $15,000.00 no publication is needed.

In the Small Estate Affidavit, the affiant must list the real and/or personal property of the decedent to be distributed. These assets can include: bank accounts, stocks, bonds, Certificates of Deposit, paychecks, refund checks, vehicles, trailers, mobile homes, and the decedent’s home. Only assets titled in the decedent’s name alone should be included in the Small Estate Affidavit.

After the above-listed Small Estate documents are filed, the court must verify the title and value of the real and/or personal property listed in the affidavit. Some assets, such as vehicles and trailers, can be verified by title. Other personal property, such as bank accounts, will be verified by a Verification of Balance form sent by the court to the financial institutions listed. If real property is included in the affidavit, an appraisal, a county tax appraisal, or a letter from a realtor is required to verify the value.

Once all the property values are verified and publication is complete (if required), the court will issue a Certificate of Clerk. This document then allows the affiant to collect, sell, and distribute the decedent’s property to the decedent’s heirs or as designated in the Will.

Conclusion

Attorneys at Cline, Braddock & Basinger are ready to assist you in all types of probate matters, including the small estate affidavit process. It is our hope that you find these materials useful. When you are ready, contact out office to schedule a free consultation!

Missouri Guardianship and Conservatorship

Thu, 04 Aug 2022 21:26:00 GMT

Introduction

There are many reasons why it may be necessary to seek guardianship or conservatorship for a relative. Perhaps, an elderly parent has suffered from mental decline and is no longer able to make decisions for his or her care. Alternatively, a minor child’s parents may be deceased or unable to care for him or her. Decisions about seeking guardianship/conservatorship can be difficult, but our attorneys are standing by to assist you.

Difference Between Guardian and Conservator

We are often asked about the difference between a Guardian and a Conservator. These are two different roles, but a single person can serve as both Guardian and Conservator.

Guardian is a person appointed by a court on behalf of a minor or incapacitated adult to make decisions concerning the minor or incapacitated adult’s care, treatment, habilitation, education, support, and maintenance. The responsibilities include:

Conservator is a person appointed by a court on behalf of a minor or disabled adult to manage the assets and finances of a the minor or disabled adult. A Conservator must take possession of the minor or disabled adult’s property (to the extent authorized by the court) and make reasonable efforts to:

Persons Requiring Guardians or Conservators

Guardian for Minor: A person is considered a minor is he or she is under eighteen (18) years of age. A minor requires a court appointed guardian is his or her parents are both deceased, or adjudged unwilling, unable, or unfit to perform the roles of a natural parent.

Conservator for Minor: A person is considered a minor if he or she is under eighteen (18) years of age. Minors generally require a Conservator if the minor is to receive a sum greater than $10,000.00 (perhaps by inheritance or court settlement). In such circumstances the Conservator would hold the money (subject to court supervision) for the minor until he or she turned eighteen (18). If the minor’s parents are living and willing and able to serve, they are often the person appointed as Conservator in such circumstances.

Incapacitated Adult (requiring Guardian): An incapacitated adult is a person who who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person’s essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

Disabled Adult (requiring Conservator): A disabled adult is a person who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage the person’s financial resources.

Who May Serve as Guardian or Conservator

Generally, any person may Petition a Court to be named as Guardian or Conservator. However, if there are multiple persons desiring to be named as Guardian and/or Conservator over a person then there is an order of priority.

For a Minor the priority order for applicants is as follows:

For an incapacitated or disabled adult the priority order for applicants is as follows:

Process to Establish Guardian or Conservator

In order to be appointed as a Guardian and/or Conservator the process is started by filing a Petition with the Probate Court for the County in which minor or incapacitated/disabled adult is domiciled, or in the case of an emergency, filing a Petition with the Probate Court for the County in which the minor or incapacitated/disabled adult is presently found.

For a Guardianship of a Minor the Petition should state:

For Guardianship and/or Conservatorship of an Incapacitated/Disabled Adult the Petition should state:

Generally, for a Petition alleging that an adult is Incapacitated or Disabled the Court will also require a medical opinion establishing such incapacity and/or disability. Usually this is established by an affidavit signed by a doctor or physician providing treatment to the incapacitated or disabled adult.

Once the Petition is filed the Court will schedule a future hearing date. A copy of the Petition together with the Court Notice must then be served, depending on the circumstance, either upon the minor’s natural parents or upon the incapacitated/disabled adult. The Court will also appoint an attorney for the minor or for the incapacitated/disabled adult. This attorney will act independently to meet with the minor or incapacitated/disabled adult and will make a report to the Court concerning what the attorney believes would serve the minor or incapacitated/disabled adult’s best interest.

At the hearing the Court will determine whether the appointment of a Guardian or Conservator is necessary and appropriate. If so, the Court will issue Letters of Guardianship and/or Letters of Conservatorship. This is the document which authorizes the applicant to act thereafter as Guardian or Conservator.

Emergency Guardian or Emergency Conservator

The process described above can, at times, be slow. If there is an exists an emergency that presents a substantial risk that serious physical harm will occur to the minor or incapacitated/disabled adult or irreparable damage will occur to the minor or incapacitated/disabled adult’s property because of their failure or inability to provide for their essential human needs or to protect their property, the court may order an emergency hearing to occur within five (5) days. At such emergency hearing, the court may appoint an emergency guardian and/or emergency conservatory to serve for up to 90 days. The request for emergency guardianship and/or emergency conservatorship should be made at the time the initial Petition is filed.

Conclusion

Guardianship or Conservatorship can seem daunting, but our attorneys are standing by to guide you through this process. Please do not hesitate to contact Cline, Braddock & Basinger (573.443.6244) for a free consultation to discuss your specific situation.

Missouri Sentencing Ranges, Minimum Terms, and Enhancement

Mon, 10 Jan 2022 13:00:00 GMT

Sentencing Authority

The court’s authority for sentencing is found in 557.011 RSMo. Most commonly this includes a fine, a term of imprisonment, or some combination thereof. No Missouri court may impose sentence other than those authorized by statute. The court’s authority includes any of the following sentences:

Classification of Felonies and Misdemeanors

Under Missouri law offense are categorized as felonies, misdemeanors, or infractions. The range of punishment for each offense is as follows:

Felonies:

Misdemeanors:

Infractions: fines up to $400.00

Some offenses are not denominated by a letter classification. If a Felony is not classified as A, B, C, D, or E then its sentencing range is specified in the relevant statute. If a misdemeanor is not classified as A, B, C, or D then it carries the same range of punishment as a Class “A” misdemeanor, unless a different range is specified in the relevant statute.

Sentence Enhancement and Persistent Offenders

Missouri law provides for additional enhanced punishments for defendants who have committed prior felonies, or certain violent/dangerous offenses. Defendant’s meeting the following classifications generally are subject to enhanced (lengthened) sentences:

The effect of a finding that a defendant is a persistent felony offender is that such defendant will be subject to the range of punishment one (1) classification higher for any newly charged offense. For example if a prior and persistent offender is charged with a new class “C” felony, such defendant will be subject to the enhanced class “B” range of punishment of 5 to 15 years instead of the standard class “C” range of 3 to 10 years.

A “dangerous felony” is any of the following:

The effect of a finding that a defendant is a dangerous felony offender is that such defendant will be subject to the range of punishment one (1) classification higher for any newly charged offense. For example if a offender is charged with a new class “C” felony, such defendant will be subject to the enhanced class “B” range of punishment of 5 to 15 years instead of the standard class “C” range of 3 to 10 years. For Dangerous Felony Offenders, the Defendant must also serve 85% of his or her sentence prior to being eligible for parole.

In addition to the standard enhancements stated above, many offenses contain their own enhancement provisions for repeated violations of the same offense. Some common (though not exhaustive) examples include:

Missouri’s enhancement statutes are ever changing, and it is crucial to consult with an attorney to determine whether sentence enhancement applies to the facts of a specific case.

Minimum Terms of Imprisonment

In addition to sentence length enhancement in the case of certain prior offenders, Missouri law provides for minimum terms for certain defendants. If a minimum term applies the defendant may not be paroled until serving the minimum term in custody. Such determination is made by the Department of Corrections and/or Probation an Parole and is not determined by the sentencing court.

Unlike sentence enhancement, minimum terms of imprisonment are not based on the prior number of pleas and/or convictions. Instead, minimum terms of imprisonment are applicable when a defendant has had a prior “commitment” to the Missouri Department of Corrections. A prior commitment is a prior sentence which was actually served in the Department of Corrections. Prior commitments do not include convictions which resulted in confinement in the county jail, probation or suspended execution of a prison sentence, first time 120 shock programs, or long term drug treatment programs.

In 2019, the prior commitments law was changed. It now only applies to new convictions for the following offenses:

If your offenses is not included in the above list, then the following minimum time served provisions do not apply. If your present offense is included in this list, then the minimum terms of imprisonment before parole are as follows:

Sentencing Alternatives

It is important to consult with an attorney to determine whether you may be eligible for an alternative to imprisonment or fines. Courts often have wide discretion to grant probation in lieu of prison time. Additionally, many courts in Missouri now include rehabilitative programs such as DWI court, drug court, and mental health court. Certain offenders may be eligible for such rehabilitative programs in lieu of a prison sentence. It is crucial to speak early and often with your attorney to determine whether such program is a possibility under the specific facts of your case.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.

Missouri Expungements

Mon, 10 Jan 2022 12:03:00 GMT

Introduction

In 2018 Missouri passed a new comprehensive expungement law, which is now codified at 610.140 RSMo. Under the new law approximately 1,900 offenses can now be expunged. A petition to expunge a misdemeanor may be filed one (1) years after completion of any sentence or probation period. A petition to expunge a felony may be filed three (3) years after completion of any sentence or probation period.

The petition for expungement must include the applicant’s full name, sex, race, driver’s license number, if applicable, current address, each offense, violation, or infraction for which the petitioner is requesting expungement, the approximate date the petitioner was charged for each offense, violation, or infraction, the name of the county where the petitioner was charged for each offense, violation, or infraction and if any of the offenses, violations, or infractions occurred in a municipality, the name of the municipality for each offense, violation, or infraction, and the case number and name of the court for each offense. The applicant must also complete a fingerprint background check through the Missouri State Highway Patrol. There are numerous locations throughout the country where this can be completed, and our attorneys can assist you in scheduling a date and time for fingerprinting.

Once a petition is filed, the state has thirty (30) days to file an objection. A hearing can then be set a few weeks later if there is no objection, or a trial if the state does object. Generally, the state does not file an objection if all requirements are met at the time of filing. Upon the granting of an expungement order the effect of such order shall be to restore such person to the status he or she occupied prior to such arrests, pleas, trials, or convictions as if such events had never taken place. Any rights lost due to a felony conviction are restored upon the entry of an expungement order.

Offenses That May Be Expunged

Many offenses can now be expunged under the statute. The following list includes many of the offenses that can be expunged, but due to the large number of expungeable offenses, they cannot all be listed here. If you do not see your specific charge, please contact our office so that we may discuss the specifics of your situation.

OFFENSES AGAINST PERSONS THAT CAN BE EXPUNGED

565 Offenses

Harassment in the 1 ^st degree – 565.090

Harassment in the 2 ^nd degree – 565.091

Interference with custody – 565.150

Parental kidnapping – 565.153

Failure to report elder abuse – 565.188

Filing a false elder abuse or neglect report – 565.189

Abuse of an elderly person or person with a disability – 565.184

Stalking in the 1 ^st degree – 565.225

Stalking in the 2 ^nd degree – 565.227

Unlawful posting certain information on the internet – 565.240

Invasion of privacy – 565.252

Failure to pay child support/criminal nonsupport – 568.040

All gambling and lottery offenses are expungeable as long as they are not Class A felonies.

ARSON, BURGLARY, TRESPASSING AND RELATED OFFENSES THAT CAN BE EXPUNGED

569 Offenses

Possession of a tool to break into a vending machine – 569.075

Tampering in the 1 ^st Degree – 569.080

Tampering in the 2 ^nd Degree – 569.090

Tampering with computer data – 569.095

Tampering with computer equipment – 569.097

Tampering with computer users – 569.099

Property damage in the 2 ^nd degree – 569.120

Unlawfully entering or defacing a cave or cavern – 569.135

Polluting cave or subsurface waters – 569.137

Property Damage 1st degree – 569.100

Trespass in the 1 ^st degree – 569.140

Trespass in the 2 ^nd degree – 569.150

Trespass of a school bus – 569.155

Burglary in the 2 ^nd degree – 569.170

Possession of burglary tools – 569.180

570 Offenses

Stealing (misdemeanor) – 570.030

Appropriation for Cable Services – 570.039

Feigned blindness – 570.053

Stealing leased or rental property – 570.057

Alteration or removal of item numbers with intent to deprive owner– 570.085

Possession of a forging instrumentality – 570.100

Issuing a false instrument or certificate – 570.110

Passing bad check – 570.120

Fraudulently stopping payment on an instrument – 570.125

Fraudulent use of a credit device – 570.130

Fraudulently procurement of a credit or debit card

Deceptive business practice – 570.140

Financial exploitation of an elderly person with a disability – 570.145

Commercial bribery – 570.150

Library theft, guilty of stealing – 570.210

Misapplication of funds for financial institution – 570.217

Check kiting – 570.220

Misappropriation of financial property – 570.225

Facilitating a theft of cable television services – 570.300

Operating an audio/visual recording device in a motion picture theater – 570.302

Misuse of Military medals – 570.350

Fraud or deception obtaining instruction permits, drivers license or non-drivers license – 570.375

Mass manufacture, possession of five or more fake I.D.s – 570.380

Unlawful receipt of public assistance benefits or EBT – 570.400

Conversion of public assistance benefits or EBT card – 570.402

Unlawful transfer of public assistance benefits – 570.404

Perjury for the purpose of obtaining public assistance – 570.408

WEAPON OFFENSES THAT ARE ELIGIBLE FOR EXPUNGEMENT

571 Offenses

Armed Criminal Action – 571.015

Unlawful use of a weapon – 571.030

Defacing a firearm – 571.045

Possession of a defaced firearm – 571.050

OFFENSES AGAINST PUBLIC ORDER THAT ARE ELIGIBLE FOR EXPUNGEMENT

574 Offenses

Private Peace Disturbance – 574.020

Disrupting a house of worship – 574.035

Unlawful assembly – 574.040

Rioting – 574.050

Refusal to disperse – 574.060

Drunkenness’ or drinking in certain places

Institutional vandalism

Unlawful funeral protest – 574.160

Interference with medical assistance

OFFENSES AGAINST THE ADMINISTRATION OF JUSTICE THAT CAN BE EXPUNGED

575 Offenses

Hindering a prosecution – 575.030

False affidavit – 575.050

False decorations – 575.060

Proof of false reports – 575.080

False bomb report – 575.090

Tampering with physical evidence – 575.100

Tampering with a public record – 575.110

False impersonation – 575.120

Simulating legal process – 575.130

Filing a nonconsensual common law lien – 575.133

Signal or directing of law enforcement or fire department to use

Resisting arrest – 575.150

Interference with legal process – 575.160

Refusing to make an employee available for service process – 575.170

Failure to execute an arrest warrant – 575.180

Refusal to identify a witness – 575.190

Tampering with electronic monitoring equipment – 575.205

Violating a condition of lifetime supervision – 575.206

Disrupting a judicial proceeding – 575.250

Tampering with the judicial proceeding – 575.260

Tampering with a witness or a victim – 575.270

Acquiescing to corruption – 575.280

Improper communication – 575.290

Misconduct by a jury – 575.300

Misconduct in administration of justice – 575.320

PUBLIC SAFETY OFFENSES THAT ARE ELIGIBLE FOR EXPUNGEMENT

577 offenses

Driving while intoxicated – 577.010

Boating while intoxicated – 577.013

Boating with an excessive blood alcohol content – 577.014

Consumption of alcohol beverages while driving – 577.017

Unlawful use of water skis and surf boards – 577.024

Negligent operation of vessel – 577.025

Leaving the Scene of an Accident – 577.060

Failure to report a shooting – 577.068

Damage to State property – 577.073

Unlawful disposition of a dead animal – 577.076

Abandonment of airtight or semi-airtight containers – 577.100

Construction or use of a waste disposal well – 577.155

Prohibiting the use of a life jacket – 577.161

Leaving a child unattended in a motor vehicle: 1 ^st and 2 ^nd degree – 577.300

Failure to comply with ignition interlock device requirements – 577.599

Renting, lending or leasing a vehicle to a person required to comply with ignition interlock requirements – 577.600

Failure to notify another of ignition interlock requirements – 577.605

Tampering with or circumventing the operations of interlock device – 577.612

Transporting of illegal aliens – 577.675

Illegal re-entry – 577.685

Vulgar or profane language passenger under the influence of alcohol or drugs on a bus – 577.709

Removal of baggage or cargo without owner’s permission – 577.718

DRUG OFFENSES WHICH ARE ELIGIBLE FOR EXPUNGEMENT

579 Offenses

Possession of a controlled substance – 579.105

Delivery of a controlled substance – 579.020

Distribution of a controlled substance in a protected location – that’s a Class A felony

Unlawful distribution or delivery or sale of drug paraphernalia – 579.040

Fraudulently attempting to obtain a controlled substance – 579.045

Manufacture of an imitation of a controlled substance – 579.050

Manufacture of a controlled substance – 579.055

Unlawful sale, distribution or purchase of over-the-counter methamphetamine precursor – 579.060

Trafficking drugs in the 1 ^st Degree, as a Class B Felony – 579.065

Trafficking in the 2 ^nd degree

Creating a danger – 579.070

Furnishing the materials for the production of a controlled substance – 579.072

Unlawful possession of drug paraphernalia – 579.074

Unlawful manufacture of drug paraphernalia – 579.076

Possession of an imitation controlled substance – 579.078

Delivery of an imitation controlled substance – 579.080

Marketing of ephedrine or pseudoephedrine – 579.082

Distribution of controlled substance in violation of registration requirements – 579.084

Unlawful delivery of a controlled substance by a manufacture or distributor – 579.086

Tampering with a prescription or drug prescription order – 579.090

Possession of anhydrous ammonia – 579.095

Inhalation or inducing others to inhale solvate fumes for causing certain actions prohibited – 579.097

Inducing or possession with intent to induce symptoms by use of certain solvents and other substances – 579.099

Possession or purchase of solvents to aid others in violations – 579.101

Selling or transferring solvents to cause certain symptoms – 579.103

Keeping or maintaining a public nuisance – 579.105

Possession of methamphetamine precursors – 579.110

Copy of suspicious transaction report of certain drugs to be submitted to chief law enforcement officer – 579.115

Distribution of prescription medication on school property – 579.150

Possession of prescription medication on school property – 579.155

MISCELLANOUS OFFENSES ELIGIBLE FOR EXPUNGEMENT

Animal neglect – 578.009

Animal trespass – 578.011

Animal abuse – 578.012

Recording of farm animals alleged to be abused or neglected – 578.013

Knowingly releasing an animal – 578.029

Unlawful removal of an electronic dog collar or radio transmission device – 578.028

Causing a dog to pursue a live animal propelled by a device – 578.025

Spectating dog fighting – 578.026

Dog fighting – 578.025

Keeping a dangerous dog – 578.024

Keeping a dangerous wild animal – 578.023

Cock fighting – 578.050

Desecration of flags – 578.095

Interference with lawful hunting, fishing or trapping 1 ^st and 2 ^nd degree – 578.150 578.152

Baiting or fighting animals – 578.173

Bear wrestling – 578.176

Sports bribery – 578.398 578.399

Participating knowingly in a criminal street gang – 578.423

Unlawful fishing, hunting or trapping on private land – 578.520

Unlawful retrieval or large or small game – 578.525

Offenses That Cannot Be Expunged

Unfortunately, no all offenses can be expunged. The legislature has delineated specific offenses that cannot be expunged. The following offenses cannot be expunged under 610.140 RSMo, regardless of the underlying facts.

105.454 – Conflicts of interest prohibited105.478 – Conflicts of interest and lobbying offenses penalties115.631 – Election offenses and penalties130.028 – Prohibitions against discrimination and intimidation relating to elections, penalties188.030– Abortion of viable unborn child prohibited, penalty 188.080 – Abortion performed by other than a physician, a felony 191.667 – Intentionally infecting another person with AIDS, penalty

194.425 – Abandonment of a Corpse

217.385 – Assault on corrections officer or property of an offender, penalty

334.245 – Felony of non-physician performing an abortion, penalty

375.991 – Fraudulent insurance act

389.653 – Railroad trespass, misdemeanor and felony (discharges a firearm)

455.538 – Failure to surrender custody, violation of ex parte or full order of protection, penalty

557.035 – Hate crimes, penalty

565.084 – Transferred to 575.095 Tampering with a judicial officer

565.085 – Transferred to 575.115, endangering a corrections employee, visitor or other offender, penalty

565.086 – Transferred to 575.157, assaults on employee of department of mental health, visitor or offender

565.095 – Cross burning, transferred to 575.140 *

565.120 – Kidnapping

565.130 – Kidnapping 3rd degree

565.156 – Child abduction

565.200 – Sexual contact or intercourse with skilled nursing home residents

565.214 – Vulnerable person abuse

566.093 – 1st degree sexual misconduct, penalties

566.111 – Sex with an animal

566.115 – Sexual contact with a nursing facility resident or vulnerable person 1st degree

568.020 – Incest

568.030 – Abandonment of a child 1st degree

568.032 – Abandonment of a child 2nd degree

568.045 – Endangering the welfare of a child 1st degree

568.060 – Abuse or neglect of a child, penalty

568.065 – Genital mutilation of a child, penalty – affirmative defenses

568.080 – Child used in sexual performance, penalties

568.090 – Promoting sexual performance by a child, penalties

568.175 – Trafficking in children – elements of crime – penalty

569.030 – Robbery in the 2nd degree

569.035 – Pharmacy robbery in the 2nd degree

569.040 – Arson in the 1st degree

569.050 – Arson in the 2nd degree

569.055 – Knowingly burning or exploding

569.060 – Reckless burning or exploding

569.065 – Negligent burning or exploding

569.067 – Fire, negligence in setting or allowing fire to escape on cropland, grassland, marsh, prairie, woodland

569.072 – Criminal water contamination (transferred to 577.078)

569.160 – Burglary in the 1st degree

570.025 – Robbery in the 2nd degree

570.090 – Forgery

570.180 – Defrauding secured creditors

570.223 – Identity theft – penalty – restitution – other civil remedies – exempted activities

570.224 – Trafficking in stolen identities

570.310 – Mortgage fraud

571.020 – Possession – manufacture – transport – repair – of certain weapons

571.060 – Unlawful transfer of weapons

571.063 – Fraudulent purchase of a firearm, penalty, exceptions

571.070 – Possession of firearms unlawful for certain persons

571.072 – Unlawful possession of explosive weapon, penalty

571.150 – Use or possession of a metal-penetrating bullet during the commission of a crime

574.070 – Promoting civil disorder in the 1st degree

574.105 – Crime of money laundering, penalty

574.115 – Making a terroristic threat

574.120 – Making a terrorist threat in the 2nd degree.

574.130 – Agroterrorism – penalty – defenses

575.040 – Perjury

575.095 – Tampering with a judicial officer, penalty

575.153 – Crime of disarming a peace officer or correctional officer, penalty

575.155 – Endangering a corrections employee, visitor, or other offender or prisoner

575.157 – Endangering a mental health employee, visitor or another offender, penalty

575.159 – Aiding a sexual offender – penalty –applicability of section

575.195 – Detention and evaluation of persons alleged to be sexually violent predators – duties of attorney general and department of mental health (this does not appear to be a criminal statute)

575.200 – Escape from custody

575.210 – Escape or attempted escape from confinement – penalty

575.220 – Failure to return to confinement

575.230 – Aiding escape of a prisoner

575.240 – Permitting escape

575.350 – Repealed (looks like it may have been an offense against police animals)

575.353 – Assault on a police animal

577.078 – Crime of water contamination (also referenced in 569.072)

577.703 – Bus hijacking – penalties

577.706 – Planting a bomb or explosive device in or near a bus terminal – threat to commit offense – discharging firearms or hurling missiles – penalties

578.008 – Formerly agroterrorism, now contained in 577.703

578.305 – Bus hijacking, penalties (transferred from to 577.703)

578.310 – Bombs and explosives placed in or near buses or terminals (transferred to 577.706)

632.520 – Offender committing violence against an employee of the department of mental health or employee of a sub-contractor of the department of mental health

Conclusion

Evey case is unique. Please do not hesitate to contact our office for a free consultation to discuss the specific facts of your case. You can reach our office at 573.443.6244

Last Will & Testament

Tue, 04 Feb 2020 20:33:00 GMT

Introduction

A Last Will & Testament serves as the foundation of many estate plans. Although many other methods now exist to transfer property on death, a Will is still a an important part of any estate plan. Use of a Will allows the naming of a personal representative (sometimes called an executor), waiving certain expensive or complex court rules, and for disposition of property, including gifts for long term support. This article will discuss some of the basic Will planning considerations to think about in planning your estate.

Personal Representatives

A Personal Representative (sometimes called an executor) is a person named in a Will to settle an estate. The role of a personal representative includes filing the Will with the proper Court, assembling and safe guarding the property of the deceased, preparing inventories and itemizations of property and expenses, and distributing the deceased’s property to its rightful recipients. This may sound like a daunting challenge, but in practice most of the actual work may be done by an attorney selected by the Personal Representative.

When planning a Will it is important to select a trustworthy person to be named as Personal Representative. It is also important to consider an alternate Personal Representative to be named in case the first selection is unwilling or unable to serve as Personal Representative when the time comes. A natural choice is often the Will maker’s surviving spouse. A trusted relative or adult child can also perform the role of Personal Representative. For especially complicated estate plans it is also possible to name a corporation such as a bank to act as Personal Representative. Due to the cost of such corporate representative, however, it is usually preferable to name a relative unless the estate plan is very large or complicated.

If no person named in the Will is willing or able to serve as Personal Representative, that will not cause a Will to be ineffective. Under such circumstances the court of the jurisdiction in which the person died may appoint a qualified Personal Representative of the court’s choice. Courts will often still consider relatives for such role, but if none are willing or able to serve each county maintains a Public Administrator who may administer estates when no other person is available.

Independent Administration and Bond

Once a Personal Representative (and perhaps an alternate) has been selected it is important to decide what ground rules will govern the estate. Missouri provides for either supervised or independent estate administration. With supervised administration the court must approve most actions of the Personal Representative before the actions may be performed. Alternatively, with independent administration the Personal Representative mostly handles the estate without supervision and reports to the court at the end of estate for final review and approval of the actions taken.

Supervised administration is the default, unless a Will requests independent administration. In most circumstances we recommend independent administration, because it is faster, simpler, and often less expensive. Even with independent administration a court will still review all of the Personal Representatives decisions at the close of the estate prior to the deceased’s property being distributed. As such, the risk of problems arising due to the lesser amount of active supervision is low.

There are circumstances where we recommend selecting supervised administration. Generally, supervised administration is appropriate where there is significant conflict between the potential heirs or if there is a controversial gift or provision contained in the Will. Under such circumstances a court’s approval of the Personal Representative’s actions before they occur may prevent some conflict.

In addition to selecting the method of administration, it is also important to consider whether the Personal Representative will be required to post a bond with the court. The default position is that the Personal Representative must post a bond for the approximate value of the deceased’s assets. This is generally done by retaining a bonding company which must be paid a fee to issue the bond. In circumstances where the deceased’s property will all be given to his or her spouse and or children we often suggest waiving the Personal Representative’s bond, as it is an additional expense which must be borne. However, as with supervised administration in situations in which significant conflict or controversy is expected it may be wise to include a bonding requirement for the Personal Representative.

Gifts and Devises

Perhaps the most important consideration in drafting a Will is who will received the deceased’s property. Gifts of property can be either specific or general and many wills contain both. A specific gift would be a gift such as “my wedding ring to my spouse, John Doe” A generally gift would provide for division of any property not included in specific gifts, i.e. equal shares of the remaining property to each child, etc.

Generally, any property can be gifted by a Will with an important caveat: Property that is subject to a transfer on death (TOD), pay on death (POD), beneficiary designation (such as life insurance), beneficiary deed , or other means of non-probate transfer cannot be gifted by Will. If you own property that contains such designations it is imperative to regularly review such designations to make sure they still match your desires. Such designations will supersede the provisions of a Will regardless of which document was created first/last.

Providing for Children

A Will is also one of the best vehicles to provide for the long term care of minor children. A first consideration is what person would be best to care for children upon the death of the children’s parent(s). Generally, if only one parent dies the surviving parent will be the natural guardian of the children. However, if both parents die in a common accident or otherwise a Will may name the person that the parent’s desire to act as guardian of the children thereafter. If both parents are deceased and the named person is qualified and able to serve as guardian then a court must follow the wishes indicated in the Will.

Minor children also cannot directly receive inheritance gifts. As such, a Will should set up provisions for trust to be created on behalf of the children in the event of the death of both parents. The Will can name the person who would serve as trustee and how the money should be distributed to the children. A common distribution scheme is for the children’s health, education, support, and welfare to be provided while they are minors and then for the remaining inheritance money to be distributed upon reaching a certain age. Such distributions can also be graduated, for instance 25% at 25, 25% at 30, 50% at 35.

Providing for Disabled Relatives

Special considerations must be taken into account when making gifts to a disabled relative. Many disability benefits, such as medicaid and supplemental security income (SSI) are means tested. This means that if a person receiving such benefit suddenly inherits even small sums of money he or she may become ineligible for such benefit. Lose of such benefit can be the difference between life and death.

Gifts for disabled relatives is beyond the scope of this article, but Missouri does provide for methods of making such gifts that avoid the lose of benefits. Common examples are special needs trusts and MO-ABLE accounts. If you are considering making a gift to a disabled relative, please contact our attorneys and we would be happy to discuss specific options available to your situation.

Conclusion

Hopefully this article has provided information that will assist in making your estate planning decisions. Usually a Will is only one part of a comprehensive estate plan that may also include powers of attorney, trusts, living wills, and healthcare directives. When you are ready, please contact our office to schedule a free consultation where we may review and discuss your specific needs.

Missouri Driver’s License Reinstatement and Five or Ten Year Denials

Thu, 23 Jan 2020 20:46:00 GMT

Introduction

Driving is a daily part of life for most Americans. A license suspension or revocation may, therefore, cause substantial hardship by preventing driving to work, school, medical appoints, banking, or groceries. This article will discuss the causes of such license suspensions, what is required to have a license reinstated, and how to request a limited or restricted driving privilege in the meantime.

Causes of Suspensions or Revocations

In order to determine how to have a license reinstated, it is first necessary to determine the cause of the suspension or revocation. Depending on the reason for the suspension or revocation, the steps necessary for reinstatement may be different.

Point Suspensions

The most common driver’s license suspension or revocation is due to accumulation of points on a person’s license. Generally, any traffic conviction will result in points being added to a persons license. The specific number of points assessed can generally be found on Department of Revenue Form 899 which can be viewed here .

Accumulation of points may result in a suspension or revocation as follows:

The length of a suspension for a eight (8) points suspension will depend on whether it is the first, second, or third such suspension. The first suspension will be a thirty (30) days suspension. A second suspension will be a sixty (60) day suspension. A third suspension will be a ninety (90) day suspension.

Accumulated points are also reduced over time for periods with no traffic violations. If no traffic violations occur for one (1) year a persons point total is reduced by 1/3. If no violations occur for a second year in a row the remaining points are reduced by 1/2. If no violations occur for a third year in a row all remaining points are removed.

DWI

A DWI of any type will result in a license suspension or revocation. The length of the suspension, eligibility for a limited or restricted privilege, and requirements for reinstatement will depend on how many prior DWI convictions a person has received. The following chart contains the lengths of suspension:

Minor In Possession/Abuse and Lose

Possession of alcohol or controlled substances by minors may also result in a license suspension. A person under twenty years of age may be suspended for any of the following:

The length of suspension for offenses listed under numbers 1, 2, 4, and 5 of the above section is 90 days for a first offense and one (1) year for a second offense. The length of suspension for offense 3 of the above section is 30 days for a first offense, 90 days or one (1) year for a second offense, and one (1) year for a third offense.

Restricted or Limited Driving Privileges

A limited/restricted driving privilege (hardship license) allows a person to drive under certain pre-approved conditions before the expiration of the suspension or revocation period. The circumstances may include driving to/from work, school, medical appointments, banking, and groceries. When requesting a limited driving privilege all requested circumstances and locations should be stated in the request.

Point Suspensions

If your license is suspended or revoked due to points on your license. You are immediately eligible for a limited driving privilege. In order to receive such limited privilege you must purchase SR22 insurance and complete and file Department of Revenue Form 4959 with the Department. Upon approval, a limited driving privilege will be mailed to you. Please note, however, that the limited driving privilege is only effective during the period of suspension/revocation. You cannot drive indefinitely on a limited privilege. Please also be aware that a limited privilege can only be requested once every three (3) years. Therefore, if you receive multiple suspensions within a three (3) year period you may be ineligible for a limited privilege.

First DWI

During a 90 days first DWI suspension there are two (2) options for a restricted license.

The first option is to serve the first thirty (30) days of the suspension without driving. Thereafter, the only requirement is to purchase SR22 insurance. Once thirty days have passed and SR22 insurance has been purchased, the Department of Revenue will automatically mail a restricted driving privilege. Please note, that such restricted driving privilege is only valid during the remaining 60 days of the 90 day suspension. It cannot be used indefinitely.

The second option allows for an immediate restricted driving privilege without waiting thirty (30) days. Under this option a person must purchase SR22 insurance, have ignition interlock installed on his or her vehicle, and submit a request to the Department of Revenue to have the privilege granted immediately. Ignition interlock must be maintained during the entire period of the restricted privilege. Please note, that such restricted driving privilege is only valid during the 90 day suspension. It cannot be used indefinitely.

Second DWI

If a second DWI occurs more than five (5) years after a first DWI conviction, then the length of suspension is for one (1) year. If, however, the second DWI occurs within five (5) years of the first DWI, then the length of suspension is five (5) years.

During a one (1) year DWI related suspension/revocation a person is eligible for a limited driving privilege during the suspension/revocation period. In order to receive such limited privilege, a person must purchase SR22 insurance, have ignition interlock installed on his or her vehicle, and submit a request to the Department of Revenue to have the privilege granted. Ignition interlock must be maintained during the entire period of the restricted privilege. Please note, that such restricted driving privilege is only valid during the length of the suspension/revocation. It cannot be used indefinitely.

During a five (5) year DWI related suspension, a persons eligibility for a limited privilege is dependent on whether he or she has a felony conviction for DWI. If the person has a felony conviction, then no limited privilege may be granted. If, however, all of the DWI convictions are misdemeanors, then a person may apply to the Circuit Court where the most recent conviction was entered to request a limited driving privilege. This is different from other requests for a limited driving privilege, in that, it requires a formal court petition and order of a Judge. There is no specific waiting period prior to eligibility for filing such petition, but generally Judge like to see some period of law abidance before issuing such order. In order to receive such court ordered limited privilege, it is also necessary to purchase SR22 insurance and to maintain ignition interlock during the entire period of the limited privilege.

Third DWI

A third DWI will result in a ten (10) year suspension regardless of the proximity of its occurrence to prior DWIs. As with a five (5) year suspension, discussed above, eligibility is dependent on whether the DWI convictions include a felony. If so, then no limited privilege may be requested until after five (5) years from the date of the felony conviction. Under either circumstance, a person must apply to the Circuit Court where the most recent conviction was entered to request a limited driving privilege. This is different from other requests for a limited driving privilege, in that, it requires a formal court petition and order of a Judge. In order to receive such court ordered limited privilege, it is also necessary to purchase SR22 insurance and to maintain ignition interlock during the entire period of the limited privilege.

Abuse and Lose

If your license is suspended for an Abuse and Lose violation. You are immediately eligible for a limited driving privilege. In order to receive such limited privilege you must purchase SR22 insurance and complete and file Department of Revenue Form 4959 with the Department. Upon approval, a limited driving privilege will be mailed to you. Please note, however, that the limited driving privilege is only effective during the period of suspension/revocation. You cannot drive indefinitely on a limited privilege. Please also be aware that a limited privilege can only be requested once every three (3) years. Therefore, if you receive multiple suspensions within a three (3) year period you may be ineligible for a limited privilege.

License Reinstatement

Point Suspensions

If your license is suspended due to accumulation of points you will need to carry SR22 insurance for two (2) years from the date of suspension. You also will need to pay a reinstatement fee at the DMV. If your license has been suspended for greater than six (60 months it may also be necessary to retake the driver examination. Generally, an attorney is not necessary for a points reinstatement.

First DWI

In order to be reinstated for a first DWI a person must carry SR22 insurance for two (2) years from the date of suspension. He or she must also complete SATOP . Finally, a reinstatement fee must be paid at the DMV. If it has been greater than six (6) months since the date of suspension it may also be necessary to retake the driver examination. Ignition interlock is not required for reinstatement following a first DWI.

Second DWI

As with eligibility for a restricted/limited privilege, the requirements for reinstatement following a second DWI are dependent on whether the DWIs occurred within five (5) years of each other. If the DWIs occurred greater than five (5) years apart, then the requirements for reinstatement are the same as on a first DWI, except that there is an additional requirement to maintain ignition interlock for six (6) months from the date of reinstatement.

If the DWIs occurred within five (5) years of each other and resulted in a five (5) year license suspension, it is necessary to petition the court in which the most recent conviction occurred in order to request reinstatement. At hearing a Judge will determine whether reinstatement of the license would constitute a danger to the community. In addition to court approval, a person must also maintain ignition interlock for six (6) months from the date of reinstatement, complete SATOP , and pay a reinstatement fee at the DMV. There is no requirement for SR22 insurance.

Third DWI

The requirements for reinstatement from a third DWI which resulted in a ten (10) year suspension are the same as the requirements for reinstatement from a second DWI which carried a five (5) year suspension. It is necessary to petition the court in which the most recent conviction occurred in order to request reinstatement. At hearing a Judge will determine whether reinstatement of the license would constitute a danger to the community. In addition to court approval, a person must also maintain ignition interlock for six (6) months from the date of reinstatement, complete SATOP , and pay a reinstatement fee at the DMV. There is no requirement for SR22 insurance.

Abuse and Lose

In order to be reinstated from an Abuse and Lose violation, a person must carry SR22 insurance for two (2) years from the date of suspension. He or she must also complete SATOP . Finally, a reinstatement fee must be paid at the DMV. If it has been greater than six (6) months since the date of suspension it may also be necessary to retake the driver examination. Ignition interlock is not required for reinstatement following such reinstatement.

Miscellaneous

SR22 Insurance

We are sometimes asked what SR22 insurance is. SR22 insurance is a special insurance product whereby the insurer files reports with the Missouri Department of Revenue providing proof that the insurance is in place. It can be purchased through most automobile insurance companies. From a driver’s perspective the only difference will generally be an increased cost for the policy.

SATOP

SATOP is the Substance Abuse Traffic Offender Program. This is an alcohol education program required for reinstatement following certain alcohol related traffic offenses. Generally, a person will need to schedule an intake interview with a certified SATOP provider. Following the interview the person will be assigned to a treatment class which must be completed. The classes can range from a singe day class up to outpatient substance abuse treatment. If a person resides out-of-state there are special additional requirements that must be followed in order for out-of-state SATOP to qualify for Missouri. Please speak with an attorney prior to completing out-of-state SATOP.

Name Changes in Missouri

Fri, 13 Dec 2019 20:33:00 GMT

Introduction

There are many reasons why a person may desire to change his or her name. Whether due to family circumstances or otherwise, name changes have been a common occurrence throughout history. Did you know that Paul Revere was originally known as Appollo Rivoire? President Gerald Ford started life as Leslie King. More recently, President Bill Clinton was originally known as William Jefferson Blythe IV.

Missourians wishing to change their name have six methods available to them, depending on circumstances:

This article will discuss each circumstance, but will focus on statutory name changes, as this method is available to everyone.

Adoption

Section 453.080 RSMo permits the circuit court to change the name of an adopted child if so requested by the petition. The court will look to a “best interest of the child” standard in determining whether to grant such name change. Requests to change the child’s name to match that of the parents are routinely granted, however.

Dissolution of Marriage

Missouri court’s may restore a parties maiden name either with the consent of the parties or under a court’s equitable powers. Such restoration of a party’s maiden name may be entered by the court even over objection of the other spouse. In order to seek restoration of a party’s maiden name the request must be made in the petition for dissolution and should be presented to the court at the time of hearing. In order for such restoration to be effective the Judgment of Dissolution must specifically state that the party’s maiden name is restored.

In limited circumstances it is also possible to change the name of a minor child of the marriage during a dissolution proceeding. Absent consent of the parties, however, such change is much more rare than restoration of a party’s maiden name. In determining whether to change a child’s name as part of a dissolution proceeding the court will look to the same factors as a statutory name changed as discussed herein below.

Naturalization

A name change can also be accomplished as part of becoming a United States Citizen. Such request should be made at the time of application on Form N-400 (the Application for Naturalization issued by U.S. Citizenship and Immigration Services). However, there is a caveat, the name change service is only available through U.S. Citizenship and Immigration Services where the ceremonies are presided over by a Judge. In some regions ceremonies are only performed by a Judge (and not a USCIS officer) a few times a year.

However, there is one catch. This name-change service is available only through USCIS offices where the swearing-in (oath) ceremonies are held in a courtroom, presided over by a judge, not a USCIS officer. The judge has the authority to grant your name change at the swearing-in ceremony. If a Judge is not available to perform the swearing in ceremony, you will need to seek a statutory name change discussed herein below.

Custom and Usage

A person’s name may be changed upon marriage through usage of the new family name. In such circumstances the person should update their information with the Social Security Office, request a new driver’s license, and request new passport documents. The person should also update their name on any bank accounts.

Although a persons name may be changed through custom and usage, doing so in circumstances other than a marriage runs many inherent risks and is not advised. Among other things, the person may run the risk of violating Section 417.200 RSMo for using an unregistered false name which could result in a misdemeanor conviction. If you desire to change your name outside marriage or one of the other specific categories discussed herein, the best and recommended course of action is to seek a statutory name change.

Statutory Name Change

Seeking a statutory name change is often the safest and most fool proof method to guarantee a name change. Such method is available to any person seeking to have his or her name changed.

In order to receive a statutory name change a person must file a petition with the clerk of the circuit court of the county of his or her residence. The petition should list:

Thereafter, a hearing will be scheduled in which the person will appear before the court to provide brief testimony. Usually, the testimony is fairly straightforward consisting of the reason the name change is requested and why it will not harm any third-party. Once a name change is granted Rule 95.05 the order must be published at least once each week for three consecutive weeks in a newspaper of general circulation.

In addition to the requirements discussed above, additional requirements exist for the change of a name of a minor. A petition for the change of name of a minor may be filed by a relative as a “next friend.” In addition to the matters to be included in the petition discussed above, a petition for a minor should also allege that the change is in the best interest of the child. If the child’s surname is being changed to a name other than that of the child’s father, and the father does not consent to the change of name, the petition should state facts showing why the change is in the best interest of the child. Missouri law recognizes that neither parent has an absolute right to have the child carry that parent’s surname, and it is not presumed that it is in the child’s best interest to have the father’s last name. Additionally, the court requires notice to each parent under Rule 95.03 .

Paternity

Section 210.841 RSMo of the Missouri Uniform Parentage Act authorizes a court to change a child’s name as part of a judgment of paternity. Such request should be made in the petition and presented to the court at hearing. If an adoption is granted the request to change the child’s name to match that of the adoptive parent(s) is routinely granted.

Additional Steps

In the event you are granted a name change under any of the procedures discussed herein there are additional steps to be taken after receiving such court order. You should notify the Social Security Office of the changed name. You also should request a new driver’s license and update any bank or financial accounts to reflect the change. If you also desire to have a birth certificate changed such request should be included in the relevant court order and a copy of the order will need to be provided to the state registrar.

If you desire to seek a name change there are many options available. Please do not hesitate to contact Cline, Braddock & Basinger for a free consultation to discuss your specific situation.

Missouri Beneficiary Deeds

Thu, 09 May 2019 19:32:00 GMT

Introduction

We are often asked about methods to distribute property to our client’s heirs without the need for probate. Once important way to keep real estate from being subjected to probate is the use of a beneficiary deed. Such deed allows the present owner of the real estate to maintain control of the real estate during his or her lifetime. Following his or her death the real estate can then pass directly to his or her heirs without the need of court involvement of probate.

Why Should I Use a Beneficiary Deed?

There are many different reasons that a person may elect to use a beneficiary deed to avoid probate. Some of the common reasons are as follows:

How Does a Beneficiary Deed Work?

A beneficiary deed is a written document that is created during the lifetime of the owner or owners of real estate that desire to provide for how such real estate will be divided following their deaths. A beneficiary deed can be created either by a single person who owns real estate or by a husband and wife together.

A beneficiary deed must include the legal description of the property to be conveyed. It also must be signed before a notary by each owner of the property. It also must clearly list the identity of the persons to receive the property, what happens if any of those persons die before the person(s) creating the beneficiary deed. Finally, it must be recorded with the recorder of deeds for the county in which the real estate is located – if the deed is not recorded it will not be effective.

A huge benefit of the beneficiary deed over other estate planning devices, such as a trust or life estate, is that the present owner continues to have full control over the property. The owner may make improvements to the property, use the property as collateral for a mortgage or home equity loan, or even sell the property (in which case the beneficiary deed becomes automatically void).

Upon the death of the owner of the real estate (or in the case of spouses or joint owners, then upon the death of the last surviving spouse or joint owner) the only action required by the recipients of the property is to record the death certificate(s) with the recorder of deeds. Once this is done the recipients are immediately the rightful owners of the real estate with no need for court involvement.

Conclusion

There are many benefits to creating a beneficiary deed. Our office offers flat rates for documents, and is standing by to assist you in preparing, executing, and recording your beneficiary deed. Please also contact our office to discuss other non-probate transfers such as transfer on death or pay on death orders for bank accounts, business interests, or stocks, as well as beneficiary designations for life insurance or other death benefits. It is often possible to establish non-probate transfers on all assets, and thereby completely avoid probate.

Missouri Equal Custody Law

Thu, 28 Mar 2019 19:37:00 GMT

A new custody law will take effect in Missouri on August 28, 2016, pursuant to HB 1550 . The provisions have been reported to create a new presumption significantly favoring “equal” or “50/50” custodial time Judgments. For instance, a recent Missourian article states that the law is based on research showing that “shared parenting, or 50/50 custody” is best for children. The article further states that the law moves Missouri towards having equal custody as the norm, instead of the exception to the rule. See http://www.emissourian.com/shared-parenting-law-will-take-effect-aug/article_b0e307f6-40fb-5781-9248-0e1103c60365.html

Additionally, I have fielded many calls from parents and attorneys that refer to this new law as an “equal custody” or “father’s rights” bill.

However, a review of the law reveals that dramatic changes may not take place. The law amends RSMO Section 452.375(8) by adding language stating: “The Court shall not presume that a parent, solely because of his or her sex, is more qualified than the other parent to act as a joint or sole legal or physical custodian for a child.” This language is a clear instruction to the Court to not discriminate in custody orders based on the sex of the parent. However, the importance of the new provision seems limited since since the previous law already mandated that “no preference may be given to either parent in awarding of custody because of that parent’s age, sex or financial status, nor because of the age or sex of the child.” Also, the U.S. Constitution and other federal law already bans government discrimination based on sex.

The law also amends RSMO Section 452.556(1) by requiring the State Court Administrator to create a handbook that outlines “guidelines . . . as to what is included in a parenting plan in order to maximize to the highest degree the amount of time that the child may spend with each parent.” However, previous versions of this law also required a handbook to be created. There is no indication that the handbook is binding on the Judge, or given any special status under Missouri custody law. It is merely an information guide for litigants. The Judge is not required to maximize a child’s time with each parent.

Finally perhaps the most significant change created under HB 1550 is RSMO Section 452.375(11) ‘s mandate prohibiting Courts from entering interim custody orders without notice and a hearing, unless the parties waive these requirements. Thus, if a Judge had developed a practice of automatically starting cases by granting a majority of time to the child’s mother, with a few days of visitation to the father, then this practice would no longer be permissible. Instead, a hearing would required, and the judge would have to consider any given custody schedule, instead of a doing a “one size fits all” plan. It is my experience that the vast majority of Judges already require a hearing for custody orders, and consider all possible custody schedules. However, now all Judges should be required to follow this practice, potentially decreasing some sex discrimination in custody orders.

Perhaps the worst mistake a parent could make is going to Court without representation, assuming that the Judge will now almost automatically grant 50/50 custody based on the passage of HB 1550 . A review of the law reveals that this assumption would be erroneous. Parents should hire trustworthy legal counsel to argue to the Judge how the new law impacts their case. Judges should be reminded that sex discrimination is prohibited. Legal counsel will also need to be prepared to argue to the Judge why their proposals are favored according to all the factors need to be considered under Missouri custody law.

Remember: Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment !

Missouri Step Parent Adoptions

Thu, 28 Mar 2019 19:37:00 GMT

General

Under Missouri law an adoption of a minor child by a step-parent is a two (2) step proceeding. First, the rights of the child’s natural parent who the adoptive step parent will be replacing must have his or her parental rights terminated. Second, following the termination of parental rights the court must find that the adoption is in the best interest of the child, and enter a judgment of adoption.

Termination of Parental Rights

Before a court may enter a judgment of adoption the parental rights of the natural parent to be replaced must be terminated. In general parental rights may be terminated for one of the following reasons:

The relevant period of time concerning abandonment or neglect under section 2 above is the six (6) months or sixty (60) days immediately preceding the filing date of the petition for adoption. Once the petition is filed, the parent whose rights are requested to be terminated generally cannot rehabilitate him or herself by then seeking time with the child thereafter. Instead, the court will look to what contact, if any, existed during the relevant time period prior to the filing date.

Furthermore, token contacts with the minor child such as an only occasional call or letter, or token gifts such as a toy at Christmas may be found insufficient to forestall a court finding of abandonment or neglect. However, each case is fact specific, and must be determined by the court based on the totality of circumstances and conduct of the parties.

Home Study and Background Checks

Prior to granting an adoption the court also may require a home study and background check of all adults residing in the adoptive home. During a home study a social worker will visit the home of the adoptive parent’s and file a report on the conditions thereof with the court. In the case of an adoption by a step-parent, however, the requirement of such home study is generally waived so long as the parties have been married for at least six months residing with the child to be adopted. This can save substantial time and money for the parties.

The court also will generally require the parties to the adoption to be finger printed for the purpose of a criminal background check. Unlike the home study, this requirement generally cannot be waived.

Effect of Adoption

Upon entry of a judgment of adoption the adoptive parent will be treated the same as a biological parent, including all rights and obligations thereof. This will generally include the child’s birth certificate being amended to name the adoptive parent as the father or mother of the child. If requested by the parties the child’s last name may also be changed to match the parties’ married last name. The adoption will also cut off the biological parent whose rights were terminated from seeking custody or visitation with the child, and will furthermore terminate any obligation of such parent to pay child support.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Missouri Orders of Protection and Ex Parte Orders

Thu, 28 Mar 2019 19:36:00 GMT

Overview

An order of protection seeks an order protecting an individual from physical abuse, physical threats, stalking or harassment. Additionally, the Court may grant orders affecting numerous other rights of parties. This includes child custody, child support, maintenance (alimony) and property possession. RSMO Section 455.045 Given the vast array of relief that may be granted by the Court, and the fast-moving nature of the proceedings, having an attorney assist with your order of protection can be beneficial to the outcome of your case.

Procedure of an Order of Protection

There are two types of order of protection: 1) Child orders of protection, and 2) Adult orders of protection. A child order of protection seeks protection of a child from abuse, stalking or harassment. An adult order of protection seeks protection for an adult from abuse, stalking or harassment.

Each starts when an individual files with the Court a Petition for an order of protection. RSMO Section 455.038 . The Petitioner should name the individual against whom protection is sought (the Respondent), and the alleged conduct of the Respondent that necessitates the order being entered. The Petition is forwarded to a Judge for determination of whether sufficient allegations have been made to grant the Petition on a temporary “ex parte” basis. Due to orders of protection being considered emergency matters, no hearing is held during this step. Instead, the Judge reviews the Petition outside the presence of the parties.

Regardless of whether the Petition is granted on a temporary, ex parte basis, the matter is set for a final hearing. For child orders of protection, a guardian ad litem will usually be appointed. A guardian ad litem should also be appointed when an adult order of protection alleges abuse or neglect of a child of the parties. The guardian ad litem is an attorney appointed by the court to represent the child’s best interests. The guardian ad litem will investigate the case, and recommend to the Judge whether to enter a full order of protection. The Judge may still choose to not follow the recommendations of the guardian ad litem.

Before a final hearing can be held, the Respondent (the individual against whom the order is being sought) must be served with the Petition. A hearing is held, and each side may present evidence under oath. Then the order, including any temporary/ex parte order, is either dismissed, or is entered as a full order lasting from 180 days up to a full year. RSMO Section 455.045 . If the full order of protection is granted after hearing, the Court may also grant orders regarding custody, child support, maintenance and property.

Issues of Importance in an Order of Protection

An experienced attorney can assist an individual in an order of protection in numerous ways. Initially, an order of protection needs to have certain allegations proven in order to be granted. Additionally, the allegations required may differ based on the type of relationship between the Petitioner and Respondent. The attorneys at Cline, Braddock & Basinger can assist a Petitioner in pleading their case, correctly, or assist a Respondent in defending and establishing the deficiencies in a Petitioner’s allegations.

Furthermore, the attorneys at Cline, Braddock & Basinger may greatly assist in litigating any issues involving child custody, child support, spousal maintenance (alimony) and property possession as part of an order of protection case. Order of protection hearings often involve most of the issues addressed in a divorce case. These issues are frequently addressed under emergency circumstances, when the parties have not had any time to stabilize their living arrangements. Once a custody or child support order is entered, it can be difficult to convince a later court to significantly change its view of the case. Other times, the parties may not have the resources to commence further proceedings to change the orders entered. As such, it is advisable to retain an attorney to properly present your side of the case during this crucial time.

Finally, an order of protection may have significant impacts on a person’s future. The entry of an order of protection can impact a Respondent’s employment and housing prospects immediately. Entry of an order may also prevent the ownership and/or possession of fire arms by the Respondent. The violation of an order of protection is a also a criminal offense, subject to jail and fines. Defending against an order of protection successfully can affect an individual’s finances and living arrangements for the remainder of his or her life.

Contact Our Offices Today!

The attorneys at Cline, Braddock & Basinger have years of experience successfully prosecuting and defending order of protection cases. If you have filed an order of protection, are looking to file one, or have been served with an order of protection, you may call the attorneys at our law office for a free consultation to see if we may assist you.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Missouri Spousal Maintenance and Alimony

Thu, 28 Mar 2019 19:35:00 GMT

Introduction

One of the main ways that parties may continue to be financially linked for years after a divorce is through a court order for spousal maintenance, formally known as “alimony.” Having an attorney that can help you determine whether a maintenance order is likely, and how much the payments may be, is very important because of the long term monetary implications involved.

Threshold Test:

The vast majority of divorces do not end in an award of spousal maintenance. When considering a maintenance order, a two-part statutory test is first evaluated by the Court:

If a spouse cannot meet their reasonable needs through property or employment, the court should award maintenance.

Amount

Many states have adopted mathematical formulas to guide a court in its maintenance award calculations, however, Missouri has not adopted any such formula. Maintenance is instead calculated on a case by case basis. The Court may consider any factors that it deems relevant, including: (1) The property and economic resources of the party desiring support, (2) The time required to gain sufficient training or education to find suitable employment, (3) Each spouses earning ability, (4) The standard of living enjoyed by the spouses during the marriage, (5) The debts, property, and financial obligations of each party, (6) The length of the marriage, (7) The health and age of the spouse seeking maintenance, (8) The ability of the spouse whom would pay maintenance to meet his or her own reasonable needs while paying maintenance, (9) The behavior and/or misconduct of either spouse during the marriage, (10) Any other factors deemed to be relevant by the court.

Since Missouri has no formula for determining maintenance, it is important for your attorney to assist you in thoroughly completing any financial documents filed with the Court. A lack of completeness or inaccuracy may greatly hurt a party’s chance of an appropriately calculated award. Furthermore, an experienced attorney can help you to focus on the factors that you Judge focuses upon the most.

Duration

If a court can determine a specific date when the spouse receiving maintenance will become self supporting, the court should enter maintenance for only the time period until he or she would be self supporting. Parties often also agree to maintenance for a certain duration.

If it is not clear when the spouse will become self-supporting the court should order open-ended maintenance. The maintenance order should state whether it is modifiable or non-modifiable. When maintenance is modifiable, a party may later file a motion, and try try to prove that there has been a change in the financial circumstances of the parties that makes the prior order unreasonable.

Unless a court specifically orders otherwise, maintenance should always terminate upon death of a spouse or remarriage of the spouse receiving maintenance.

The attorneys at Cline, Braddock & Basinger are here to assist you with the maintenance issues in your dissolution case, and any other legal issues that you may have. Schedule a free consultation today!

Missouri Administrative DWI License Suspensions

Thu, 28 Mar 2019 19:35:00 GMT

State of the Law

Under Missouri law, a criminal charge of DWI or excessive b.a.c. often also carries the potential for additional civil penalties, notably the suspension or revocation of the subjects driver license. At the time of arrest for an alcohol related driving offenses in which a blood alcohol result of .08% or higher is obtained, the arresting officer will seize the subject’s driver’s license, and issue a notice of suspension to the driver. Such notice of suspension provides a 15 day grace period before the suspension or revocation becomes effective. If the driver takes no action the suspension will automatically become effective following the 15 day grace period. Such suspension will be for either ninety (90) days or one (1) year depending on the driver’s past driving history. (note: breath test refusal cases have different requirements, and are not discussed in this article)

In order to prevent the above-described license suspension and/or revocation it is imperative that an administrative license hearing is requested within fifteen (15) of the arrest/issuance of notice of suspension. Failure to timely request an administrative hearing will prevent the driver from contesting the suspension at a later time. This administrative hearing request is separate from, and in addition to any criminal proceedings.

Requirements for License Suspension

Department of Revenue license actions are considered to be civil matters, despite often being related to a pending criminal charge of DWI. In order for the driver’s license to be suspended, the Department of Revenue must prove its case by the preponderance of the evidence. This is a different standard of proof than at a criminal hearing, in which guilt must be proven beyond a reasonable doubt. Generally, proof by preponderance of the evidence, means proof that something is more likely to have occurred than not. Another way to think of this standard is that it must be shown that there is a greater than 50% chance that an event occurred.

The elements which must be proven by the Department of Revenue in order to issue a license suspension and/or revocation are as follows:

Notably, unlike in a criminal DWI trial, the Department of Revenue does not need to show that there was probable cause for the initial stop of the driver. There is no requirement that the person has committed a traffic error or other law violation prior to be stopped by law enforcement. (There is a small caveat only concerning persons under age twenty-one. In such instances, the Department of Revenue does need to show that a driving offense was committed).

Defenses at Hearing

There are a number of issues that can be raised at hearing in a administrative alcohol proceeding. Failure of the Department of Revenue to establish even one of the elements stated above will preclude a license suspension action.

As stated above, the subject must actually be under arrest when the blood or breath test was taken. Additionally, this arrest must be based on probable cause that the person was operating a motor vehicle, and that the person was intoxicated. Long periods of time between when a person was driving, and when the first encounter with law enforcement occurs can sometimes prevent proof that, even if the person was previously driving, that they were intoxicated at that specific time.

Often in attempting to demonstrate probable cause, the Department of Revenue will rely on the written report of the arresting officer concerning observations obtained during a standardized field sobriety test (SFST). This battery of tests includes horizontal gaze nystagmus, walk-and-turn, and one-leg-stand tests. During the horizontal gaze nystagmus test, the officer will check each eye of the subject for involuntary shaking (nystagmus). The occurrence of nystagmus may indicate a possibility of intoxication. However, nystagmus can also be caused by physiological effects or outside environments other than the presence of alcohol. Additionally, errors in the administration of the gaze nystamus test can, and do, result in false positives. A full review of the environment in which the test occurred, any medications or legal substances the subject had been in contact with, and the actual administration of the test itself are crucial to determine the accuracy of any result received, and can be grounds to discredit such results at a license suspension hearing.

The walk-and-turn and one-leg-stand tests are both physical tests concerning the subjects motor skills and divided attention. In either test, the presence of two (2) errors, such as failure to maintain balance, stepping off the line, etc, are considered an indication of intoxication. However, as with the gaze nystagmus test discussed above, the reliability of results on these tests depend heavily on proper administration and scoring of the tests by the observing officer. It is not uncommon for an error to be improperly marked. A full review of the administration of these tests is very important. In a majority of cases, it is also possible to request a video of the subjects performance on these tests, which can then be used to refute improper administration of the test or improperly marked errors.

In addition to contesting probable cause based on the standardized field sobriety tests discussed above, it is also very important to review and contest any improper reliance on the blood or breath test providing the .08% or higher b.a.c. result. The Missouri Department of Health and Senior Services maintains regulations concerning the maintenance and operation of blood and breath testing machines within the state of Missouri. These regulations must be strictly complied with in order for a blood or breath test to be admissible for the purposes of license suspension. Testing machines must be maintained every thirty-five (35) days by a Missouri licensed technician; The operator of the machine who collects the subjects blood or breath sample must also be properly licensed; The machine used for the sample must be of a type specifically authorized by the regulation; The samples used to calibrate the machine must be approved by regulation and properly certified; and when maintained the machine must test within specific regulations concerning temperature, spread of results, and more. A full review of the machine, and its history, used to collect a blood or breath sample can be grounds to exclude the b.a.c. result obtained.

Appeals

Any person aggrieved by a Department of Revenue alcohol license action, may request an appeal to the circuit court within fifteen (15) days of the final decision. In order to request such appeal a petition must be filed in the circuit court for the county of arrest. Additionally, the Department of Revenue must be served with notice of the appeal. If an appeal is requested the court will hold a de novo hearing. This means that the circuit court will hear the evidence, and will review it without deference to the previous Department of Revenue decision. Unlike Department of Revenue hearings, a circuit court appeal will often include live testimony concerning the events leading to the license action.

Unfortunately, however, the decision of the Department of Revenue to issue a suspension or revocation is not stayed while such appeal is pending. This means that the license suspension or revocation may go into effect prior to the appeal hearing taking place. If this occurs, the person is precluded from driving during such suspension period unless/until the court later finds that there was not sufficient evidence for the suspension.

Length of Suspension

If the Department of Revenue determines that all three (3) elements discussed above are proven by the preponderance of the evidence a license suspension will issue. The length of the suspension is determined by the subjects prior driving history. A first alcohol related suspension will be for ninety (90) days. If the person has any prior alcohol related suspensions, a one (1) year license revocation will issue instead of the ninety (90) day suspension. Please also note, that if the criminal case results in a criminal conviction, and such person has prior convictions for DWI or excessive b.a.c. this administrative revocation may be increased by the court to up to ten (10) years dependent on the person’s past conviction record(s).

Restricted and Limited Driving Privilege

A person whose license has been suspended by for an alcohol related offense may be eligible for a restricted or limited driving privilege.

A first suspension for alcohol is ninety (90) days, as discussed above. During this ninety (90) day period the subject may choose one of two different options. Under the first option the person is subject to a thirty (30) day “hard-walk.” During this time, no driving is permissible. Following the hard-walk, a restricted driving privilege for the remainder of the suspension, allowing for driving to and from school, work, etc., may be requested. In order to receive such restricted privilege the only requirement is to file proof of SR-22 insurance with the state. No other written request or application is required. There is no requirement for ignition interlock.

The other option allows the subject to completely avoid the “hard-walk” requirement discussed above, but does require installation of an ignition interlock. Under this option a person is immediately entitled to a restricted driving privilege upon proof of installation of ignition interlock and purchase of SR-22 insurance. Such ignition interlock must be maintained during the entire period of the restricted driving privilege. Under this option, a written request/notice should also be filed with the Department of Revenue.

Persons subject to a one (1) year revocation are eligible for a limited driving privilege following a forty-five (45) day hard walk (no driving). In order to receive this limited driving privilege the subject must maintain ignition interlock, and SR-22 insurance. Additionally, an application for limited driving privilege must be filed. Note: There are different/additional requirements to request a limited driving privilege if a person is subject to a five or ten year license denial.

Reinstatement of Full Driver’s License

Following the completion of the relevant suspension or revocation period, there are a number of steps which must be taken prior to reinstatement/issuance of a full driving privilege, which include:

1. Completion of the Substance Abuse Traffic Offender Program (SATOP)

2. Maintain SR-22 insurance for two (2) years from the initial date of suspension/revocation (except in certain instances concerning minors)

3. If it is a second alcohol suspension, maintain ignition interlock for six (6) months (there is no ignition interlock requirement after reinstatement for a first offense)

4. Retake the driving exam (if it has been more than six months since the suspension began)

5. Pay a reinstatement fee at the DMV

Remember: You have a Constitutional right to the assistance of an attorney to defend against a license suspension! Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment !

Missouri Marijuana Possession Laws and Penalties

Thu, 28 Mar 2019 19:34:00 GMT

State of the Law

Contrary to popular belief, possession of marijuana has not been decriminalized in Columbia, Missouri or surrounding areas. Presently possession of marijuana, including synthetic marijuana such as “K2,” is a violation of Section 579.015 Revised Statutes of Missouri, and Columbia Ordinance Section 16-253 .

The possible penalties associated with violation of the state and city marijuana laws are dependent on the amount of the substance possessed. At present, possession of ten (10) grams, or less, of marijuana is a class “D” misdemeanor for a first offense, and carries a range of punishment of up to $500.00 fine. Possession of more than ten (10) but less than thirty-five (35) grams is a class “A” misdemeanor, and carries a range of punishment of up to one (1) year in jail and/or a fine of up to $2,000.00. A second offense for possession of less than ten (10) grams is also a class “A” misdemeanor.

Possession of greater than thirty-five (35) grams of marijuana is a class “D” felony under Missouri law, and carries a range of punishment of up to seven (7) years in the Department of Corrections, and/or fines of up to $10,000.00.

Civil Consequences of Marijuana Convictions

A conviction for possession of marijuana, including misdemeanor convictions, can also result in serious civil consequences to a person’s driver license and federal student loans.

Missouri has enacted “ Abuse and Lose ” which applies to minors convicted of violation of the state marijuana laws. Under Abuse and Lose, any person under the age of twenty-one (21) who pleads to or is convicted of possession of a controlled substance under listed under Chapter 195 RSMo , is subject to a mandatory ninety (90) day license suspension for a first offense. A second offense is subject to a mandatory one (1) year license revocation.

Missouri has also enacted a lesser known license revocation provision which applies to person’s over the age of twenty-one (21) which is codified at 302.405 RSMo . Under this provision any person over the age of twenty-one (21) who pleads to, or is convicted of possession of marijuana while operating a motor vehicle is subject to an automatic one (1) year license suspension. There is no requirement that the person have consumed marijuana or be in an intoxicated state while operating the vehicle. Mere possession of the substance is enough.

In addition to hardship of lose of driving privilege, a person whose license is suspended or revoked under the above-provisions must also complete the Substance Abuse Traffic Offender Program (SATOP). This program includes outpatient substance abuse treatment which can range from a weekend intervention up to fifty (50) hours of outpatient treatment. The program also carries a substantial expenses, which at the time of this writing, is a minimum of $625.00.

A conviction for possession of marijuana can may also disqualify a person for receipt of Federal student loans. Presently, a first offense can lead for ineligibility for student aid for up to one (1) year.

What Constitutes Possession?

Possession of a substance involves a finding of two (2) elements:

The second prong of this definition can become important in instances were a person is present in a room or vehicle that contains marijuana belonging to another persons. In such circumstances, mere presence in the location without the ability to assert physical control over the marijuana (i.e. it is in another person’s pocket etc) can be a defense to a charge of possession.

Is Medical Marijuana Legal in Missouri?

The City of Columbia has passed City Ordinance Sec. 16-225 which provides, “Seriously ill adults who obtain and use marijuana and/or marijuana paraphernalia for medicinal purposes pursuant to the recommendation of a physician shall not be subject to arrest, prosecution, punishment or sanction.”

CAVEAT: Despite the passage of Columbia, Missouri’s medical marijuana ordinance, possession of any marijuana, including medical marijuana, is still a violation of State law. This means that any citation or arrest for medical marijuana issued by a State Highway Patrol Officer or County Sheriff Department is still a class “A” misdemeanor. Additionally, even Columbia Police Officers have discretion to ignore the City of Columbia Ordinance, and to issue a state law citation for possession of marijuana. As such, despite the above city ordinance, it is best to assume that possession of medical marijuana will still result in a criminal offense.

What Can an Attorney Do for Me?

Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Factors Involved in the Division of Property in a Divorce

Thu, 28 Mar 2019 19:32:00 GMT

Introduction

One of the essential parts of obtaining a divorce in Missouri is dividing the property of the spouses. Some common misconceptions involving the division of marital property are that each party automatically keeps what they acquire after the parties stop living together, or that the Court often awards the vast majority of property to one party.

This article provides a basic overview of the process of property division, and the factors that a Court is required to consider.

The Two Step Process for Division of Property

The Court follows a two step process in dividing property. First the Court must determine which property is non-marital property and which property is marital property. The Court cannot change ownership of the non-marital property, and must set aside the non-marital property to each party. The court then must consider the factors outlined below to make an equitable distribution of the marital property.

Non-Marital Property

The Court presumes that all property owned by the parties is marital property, subject to division, except for the following categories of non-marital property:

The status of property as non-marital property must be proven by “clear and convincing evidence.”

Transmutation of Non-Marital Property

Even property that falls under one of the categories of non-marital property discussed above can at times be converted into marital property. If previously non-marital property becomes marital property during the course of the marriage it will be subject to division by the court.

There most common circumstances under which non-marital property may be converted into marital property are as follows:

Division of Marital Property

Once the Court has set aside to each party their non-marital property, it may divide the marital property between the parties. The Court is required to make an “equitable” but not necessarily equal division of such property. The Court is required to consider the following five factors, and any other relevant factor, in making such determination:

There is no set formula for giving weight to the five factors, and the factors are not exclusive. The Court may actually consider any additional factors which it deems relevant. However, the factors outlined above still provide a good basis for many of the considerations that the Court is required to make.

While the Court as a general rule starts from the assumption that an equal property split is fair, any relevant factor may lead the court to conclude that a more uneven split is equitable. This is why it is important to obtain an experienced, knowledgeable attorney to represent your interests in any divorce proceeding. An attorney can help you to identify marital and non-marital property, place a value on the property, and present to the court all evidence that weighs in favor of you being awarded a greater property share.

Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.

Missouri Relocation Following Child Custody Orders

Thu, 28 Mar 2019 19:32:00 GMT

April 7, 2015Information provided on this page is for educational use only. Accessing this page does not give rise to an attorney-client relationship, and the information provided should not be regarded as legal advice. Laws of the State of Missouri are subject to change, and there is no warranty, express or implied, that the information included on this page is still accurate at the time of access. Please consult a licensed Attorney to discuss the specifics of any legal matter. Attorneys at Cline, Braddock & Basinger can be reached at (573) 443-6244

Introduction

A custodial parent may want to change their child’s residence after a custody judgment has been entered. Missouri considers this to be such a potentially significant event that it has enacted a specific statutory procedure to address the situation. Any Missouri custodial parent considering a move with their child should be certain to follow this procedure. Otherwise, the parent could face consequences such as:

Missouri Statute

Missouri law defines “relocation” as a change of residence of the child for more than ninety (90) days or more. A parent intending to relocate a child must give written notice of the proposed relocation to other other parent by certified mail, return receipt requested, at least sixty (60) days before the intended move.

Such written notice must contain the following:

Procedure Following Statutory Notice

After receiving the statutory notice of relocation, the non-relocating parent has thirty (30) days to file a motion with the Court to prevent the relocation of the child. The motion must contain an affidavit, and specific reasons that the objecting parent is opposed to the move. If an objection is not filed as required, the parent intending to relocate may move the child without further court permission. However, if an objection is properly filed, the relocating parent must file a response and a proposed parenting plan with the court within fourteen (14) days.

Once an objection and answer are filed, a hearing must be held to determine whether the court will permit the relocation. The court will permit the proposed move only if it determines that the move is being made in good faith, and that the move is in the best interest of the child. If necessary, the court will enter a new custody schedule, child support order, and transportation arrangement.

Obtaining an attorney to help you meet the specific statutory requirements and present your evidence will give you the best chance of success in your case.

Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Missouri Automobile Injury Overview

Thu, 28 Mar 2019 19:31:00 GMT

Overview

Automobile injuries have become one of the most frequent sources of personal injury within the state of Missouri. Many such injuries are caused by the negligence of inattentive or careless drivers on the roads and highways of our state. If you have been injured by a negligent driver you may be entitled to compensation for your pain and injuries.

Elements of an Automobile Negligence Action

An action for recovery of damages sustained as a result of an automobile collision requires showing each of the following elements:

What Constitutes a Negligent Manner

Negligence is the failure of a person to live up to an applicable standard of care. In the case of automobile accidents occurring on public roads or highways the applicable standard of care is required by statute to be the “highest degree of care.” See 304.012 RSMo .

The “highest degree of care” is considered to be that degree of care that a very careful or very prudent person would exercise under the same or similar circumstances. Therefore, in order to avoid possible liability, operators of vehicles on public roads and highways are expected to be even more careful than your ordinary person. Failure to live up to this high standard constitutes negligence which may result in liability for any injuries arising from the failure to maintain such care.

In order to understand what constitutes negligence it is often easier to reference common examples. Some common examples of behavior which constitute negligence (because they fail to live up to the highest degree of care) are as follows:

This list is far from exhaustive of all situations or actions which may constitute negligence. If you have been injured from an automobile collision you should still consult an attorney concerning the specific facts and circumstances of your case.

Recoverable Damages

Rear end collisions lead to thousands of injuries every year. The sudden acceleration and deceleration of the driver and/or passenger exerts forces on their bodies which can, and often do, lead to soft tissue sprains or strains, broken bones, concussions or head injuries, and lacerations. It is very common that the driver or passenger will not even realize that they are injured until the shock has warn off the day following collision.

Injuries received from an automobile collision often result in numerous losses to the injured party. Some of the most common damages are:

Who is Liable for the Damages?

Although it may seem like common sense that the driver who operated a vehicle in a negligence manner is liable for damages, there often are additional persons or parties who may become liable for the actions of a driver. This can become particularly important if you have been injured by an insolvent driver or a hit and run.

The most common defendants to a automobile negligence action are:

Role of Insurance

Missouri law requires all vehicles operated on the roads and highways of the state to maintain liability insurance. Such insurance is required to cover the negligent acts of the operator of the insured vehicle, and to pay the damages of any person injured as a result of such negligent acts.

This means that in the majority of automobile injuries it will be an insurance company negotiating your recovery, and not the negligent driver. Insurance company adjusters are trained to minimize the recovery for your injuries, and as such it becomes all the more important to have experienced representation working on your behalf to recover the compensation you deserve.

Although, all vehicles are required to be insured by law, there are unfortunately still instances where a person is injured by an uninsured motorist or by a hit and run. In such instances, the injured person’s own insurance is required to cover a minimum of $50,000.00 per collision ($25,000.00 max per person) for bodily injuries arising from the collision.

In addition to the insurance coverage discuss above, many policies provide additional “med pay” coverage. Med pay coverage is a provision found in some policies which will pay out for medical treatment regardless of liability in the case.

Conclusion

If you have been injured in an automobile collision you deserve an experienced attorney on your side. Don’t let insurance companies talk you into less than a fair settlement. Our attorneys are standing by to assist you recover the money you deserve.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.

Missouri Automobile Injuries; Rear End Collision Doctrine

Thu, 28 Mar 2019 19:31:00 GMT

State of the Law

Missouri law provides special protections to persons injured by a rear end collision. Often a person injured by a rear end collision did not see the colliding vehicle until it had already struck his or her own vehicle’s rear end. Under general negligence law this could create difficulty in proving that the driver of the colliding vehicle was in-fact negligent or otherwise at fault.

Missouri, along with many other states, has adopted the “rear-end collision doctrine” to address such situations. Under this doctrine the injured driver of the lead vehicle is not required to prove a specific negligent act of the rear colliding driver.

In order to present a submissible case the injured front driver must show:

Upon presenting a submissible case a presumption is created that the defendant was negligent, and the burden is shifted to the defendant to present evidence that the he or she was not negligent. This differs from a standard negligence case in which the plaintiff must prove a specific negligent act of the defendant. Under the rear-end collision doctrine, the tables are turned, and it is up to the defendant to affirmatively prove that he or she was not negligent.

Recoverable Damages

Injuries received from an automobile collision often result in numerous losses to the injured party. Some of the most common damages are:

Your Legal Rights

Remember: You have a right to the assistance of an attorney to assist you with your injury claim. Attorneys at Cline, Braddock & Basinger offer free consultations to review your claim in person at our offices. Our attorneys also work on a contingent basis, meaning that you do not pay any legal fees until we win! Contact our offices to schedule a free appointmen t !

Grandparent Rights, Visitation, and Custody in Missouri

Thu, 28 Mar 2019 19:30:00 GMT

State of the Law

Under Missouri law grandparents are entitled to court ordered visitation under a number of circumstances. The Missouri courts and legislature have recognized the important relationship between grandparents and children, and have provided a statutory framework to determine when visitation has been wrongfully denied.

Prerequisites for Grandparent Visitation

The grounds under which grandparent visitation may be ordered are codified at § 452.402 RSMo . Before a court may order grandparent visitation one (1) of the following circumstances must exist:

The grandchild’s father or mother is deceased and the surviving parent has denied visitation to the parents of the deceased father or mother; or

The grandchild has resided in the grandparent’s home for at least six (6) months within the preceding twenty four (24) months; or

The grandchild is adopted by a step-parent, another grandparent, or another blood relative; or

The grandparent is unreasonably denied visitation for a period of ninety (90) days, and the grandchild’s parents are not married and living together with the child; or

The grandchild’s parent’s have filed a pending action for dissolution of marriage (grandparents may intervene on issue of visitation).

Additional Factors Considered by the Court

Assuming that one (1) of the prerequisites listed above is met, the court analysis is not over. In addition to finding grounds for one (1) of the prerequisites, the court must also make a determination that grandparent visitation is in the child’s “best interest” and that such visitation will not endanger the child’s physical health or emotional development.

The trial court is vested with broad discretion in determining whether grandparent visitation is in the child’s best interest. There are many factors that a court may consider when determining a child’s best interest. Some important areas of consideration are the previous relationship between the child and grandparent, the parties’ physical and mental health, the child’s age and development, and distance/travel.

There are a number of tools available to the court in making a best interest determination:

In circumstances where the child’s natural parents are married to each other and living together with the child, statute provides that the court must begin with a presumption that the parent’s decisions concerning grandparent visitation represent the child’s best interest. This presumption is not absolute, however, and may be rebutted by evidence at trial.

Mediation as an Alternative

There are some circumstances where differences between a child’s parents and grand parents may be resolved without formal litigation. In such circumstances, a grandparent may request that the court order mediation between the parents and grandparent concerning visitation with the child.

Mediation is an opportunity for the parents and grandparent(s) to meet with a neutral court appointed mediator to discuss present disputes concerning grandparent rights or visitation. The mediator will listen to both sides, and can make recommendations concerning appropriate visitation. The mediator’s recommendations are not binding on the parties, but may help the parties resolve minor disputes.

The requirements for seeking mediation are significantly lower than those for seeking court ordered visitation. The only showing that a grandparent must make in order to receive mediation is that such grandparent has been denied visitation with the child. This means that if a grandparent cannot establish one (1) of the prerequisites for grandparent visitation, he or she is likely still eligible for mediation.

Third-Party Custody In Cases of Abuse or Neglect

Courts recognize that under certain circumstances the best interest of a child requires custody be awarded to some person other than the child’s natural parents. In such circumstance a grandparent may be the best person to exercise custody in lieu of the natural parents.

Before a court may award custody of a child to person other than the child’s natural parent(s), the court must find that both natural parents are unfit, unsuitable, unwilling, or unable to be the child’s custodian, or that some other extraordinary circumstance exists. The most common extraordinary circumstance is a child who has been raised for many years by a grandparent while the natural parent has been absent.

Attorneys at Cline, Braddock & Basinger, are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.

Moving Violations, Speeding, and Missouri License Consequences

Thu, 28 Mar 2019 19:29:00 GMT

Missouri Driver License Point System

Under Missouri law the Missouri Director of Revenue must assess “points” on a Missouri driver’s license upon conviction for certain traffic related offenses. An accumulation of points can lead to license consequences such as a license suspension or license revocation.

Length of Suspension

Any revocation for accumulation of twelve (12), eighteen (18), or twenty-four (24) points is for one (1) year. A license suspension for eight (8) points can vary between thirty (30) days up to ninety (90) days. The length of suspension is determined by reference to the number of prior license point suspensions. The lengths are as follows:

First Suspension – Thirty (30) days

Second Suspension – Sixty (60) days

Third (or subsequent) Suspension – Ninety (90) days

Reduction of Points for Safe Driving

Points assessed by the Missouri Director of Revenue are automatically reduced for periods of safe driving. In order to receive such point reduction the driver must avoid all moving violations for a set period of time. No additional filing or application is required by the driver. The periods of time and point reductions are as follows:

Limited Driving Privilege

Missouri law presently allows many persons whose licenses have been suspended to seek a limited (hardship) license in order to travel for school, work, medical treatment, substance abuse treatment, child care, and/or probation/parole meetings. Such license is issued during the relevant suspension or revocation and allows the driver to operate a motor vehicle for these limited purposes. In order to receive such limited (hardship) license an application must be filed with the Department of Revenue or with the proper Circuit Court.

Certain driver’s are excluded from eligibility for a limited (hardship) license. An experienced attorney can help you determine whether you qualify for such privilege. A non-exhaustive list of exclusions includes: conviction for felony involving a motor vehicle, conviction for a state law violation of leaving the scene of an accident, second revocation for refusing breathalyzer test, and certain alcohol/DWI offenses.

Only one (1) limited driving privilege may be issued to a driver in any five (5) year period.

Many alcohol offenses (DWI/BAC) also include additional restrictions or limitations on limited driving privileges.

Violation Point Assessments

Almost all other moving violation offenses not listed above include a two (2) point assess ment on the person’s driver license.

Missouri Driver Improvement Program

Many moving violations can be dealt with by a skilled attorney by seeking a dismissal, or amendment to a non-moving violation. In some circumstances, however, such dismissal or amendment is not available, perhaps due to a large number of recent tickets or other aggravating factors.

In such situations the law provides for the possibility of court ordered driver improvement programs in lieu of assessment of points. Such driver improvement program must be court ordered. In the rare circumstance where a driver is ineligible for a dismissal or amendment the driver improvement program may be the difference between a license suspension or continued access to the road.

The program may be taken online from the convenience of the driver’s own home. The program may only be completed once in three (3) years, however, and as stated above must be approved by the judge in your case. The aid of an attorney may assist you in determine whether you qualify for such program, and making the proper request to the court and prosecutor.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free consultation.

Child Custody and Relocation of a Child’s Principal Residence

Thu, 28 Mar 2019 19:27:00 GMT

State of the Law

Under Missouri law certain restrictions are placed on a parent who wishes to relocate his or her principal residence following an order of divorce, custody, or paternity. A parent who has custody of his or her child subject to a prior divorce, custody, or paternity order is required to provide written notice to the other parent before relocation of the child’s principal residence. This requirement is found in Missouri Statute ( See 452.377 RSMo . ) as well as the language contained in any Missouri order concerning divorce, custody, or paternity. Failure to provide the proper written notice may result in the court to modifying the prior custody decree, and/or punishing the relocating parent for contempt.

Following written notice of a proposed relocation the parent may relocate the principal residence of the child after sixty (60) days if no objection from the other parent is received. If the other parent files a timely objection to the relocation the court which entered the original order for for divorce, custody, or paternity will resume jurisdiction and make a determination whether to allow the relocation of the child’s residence.

Requirements of Written Notice

Before a parent may relocate the principal residence of a child subject to a divorce, custody, or paternity order written notice must be sent to the other parent by certified mail, return receipt requested at least sixty (60) days prior to the proposed relocation. Such written notice must contain:

If a parent relocates the principal residence of a child without providing proper written notice, the other parent may be entitled to a modification of the prior custody order. Additionally, the prior court order of divorce, custody, or paternity requires proper written notice prior to relocation, and a failure to provide such notice may be grounds for contempt of court.

Objections to Relocation

If no objection to relocation is received within thirty (30) days of receipt of proper written notice, the principal residence of the child may then be relocated sixty (60) days after written notice was provided. A parent wishing to contest relocation of a child’s principal residence must move quickly to file a valid motion seeking an order to prevent the relocation. Such motion should be filed in the court which issued the order of divorce, custody, or paternity, and must be accompanied by a proper affidavit.

If a motion seeking an order to prevent relocation is filed within thirty (30) days of receipt of the notice for relocation, then the principal residence of the child may not be relocated unless and/or until a hearing before the court. At this hearing the court will make a determination whether the move is made in good faith and is in the best interest of the child. The burden of proof during this hearing is on the party seeking a relocation.

Following the court hearing on relocation, the judge will issue an order either denying the relocation and continuing the prior divorce, custody, or paternity order in full force and effect as previously issued, or granting the relocation and ordering a modified custody order and parenting plan to account for changes in times and durations of visitation following the relocation.

Your Legal Rights

Remember: You have a right to the assistance of an attorney during the possible relocation of a child’s residence! Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready, contact our offices to schedule a free appointmen t !

Effect of Private Tuition on Child Support Calculations

Thu, 28 Mar 2019 19:27:00 GMT

State of the Law

Since 1989 Missouri child support orders have been governed by Missouri Supreme Court Rule 88.01 . Pursuant to this Rule, each party to a divorce, custody, or paternity proceeding must submit a support calculation to the Court by completing Form 14 . The Court then reviews the Form 14(s) and will enter a support order pursuant to the correctly completed Form 14, except in cases of rare exception.

There are many pieces of data which must be included in the Form 14 in order to properly calculate support. In this article we will explore whether tuition for private elementary, high school, or college tuition may be included under line 6e as “other agreed-upon or court-ordered extraordinary child-rearing costs.” The inclusion or exclusion of this expense can have drastic effects on the final monthly support amount.

When May Private Tuition Be Included In Support?

Generally, private tuition for elementary, high school, or college is not included in Form 14. There are two (2) exceptions, however, when such expense must be included:

When both parties agree to include private tuition expense; or

When the parties do not agree, but the Court finds that private education “will meet the particular educational needs of the parties’ child or children.”

The first circumstance is fairly self-explanatory. If the parties are both in agreement that the child should attend a school requiring private tuition, the court will consider such tuition in a child support calculation.

The second circumstance often arises when one parent wishes for the child to enroll in or continue private school while the other parent wishes for the child to attend public school. Missouri law is clear that the court does not require the consent of both parents to include private tuition in its support calculation. In such situation the Judge must make a factual determination, based on specific criteria, whether the private school will meet “particular educational needs.”

Whether or not private education will meet the child’s particular education needs is a question of fact to be determined at trial. The burden of proving such fact is on the party who desires that the child in question attend private school. However, the fact that the other parent does not want to pay tuition is not enough alone to defeat a request that such tuition be included in support calculations.

Courts have routinely held that “particular needs” are not the same as “special needs.” There is no bright line test to be followed in making the particular needs determination, but there are a number of factors courts have previously relied on. Some of the factors to be considered are:

Continuity of prior/current attendance;

Specialized educational/athletic programs;

Academic rigor;

Transportation;

Need for structured atmosphere; and

Past school performance (whether good or bad)

The above factors are far from a comprehensive list. The facts of each case are different and should be carefully examined based on the particular needs of the child. An experienced attorney can provide guidance in determining these facts and presenting them in a meaningful way to a Judge.

Generally, private tuition for elementary, high school, or college is not included in Form 14. There are two (2) exceptions, however, when such expense must be included:

The first circumstance is fairly self-explanatory. If the parties are both in agreement that the child should attend a school requiring private tuition, the court will consider such tuition in a child support calculation.

The second circumstance often arises when one parent wishes for the child to enroll in or continue private school while the other parent wishes for the child to attend public school. Missouri law is clear that the court does not require the consent of both parents to include private tuition in its support calculation. In such situation the Judge must make a factual determination, based on specific criteria, whether the private school will meet “particular educational needs.”

Whether or not private education will meet the child’s particular education needs is a question of fact to be determined at trial. The burden of proving such fact is on the party who desires that the child in question attend private school. However, the fact that the other parent does not want to pay tuition is not enough alone to defeat a request that such tuition be included in support calculations.

Courts have routinely held that “particular needs” are not the same as “special needs.” There is no bright line test to be followed in making the particular needs determination, but there are a number of factors courts have previously relied on. Some of the factors to be considered are:

The above factors are far from a comprehensive list. The facts of each case are different and should be carefully examined based on the particular needs of the child. An experienced attorney can provide guidance in determining these facts and presenting them in a meaningful way to a Judge.

Effect of Inclusion or Exclusion?

The effect of including private tuition in a child support calculation is dependent on whether the parent paying tuition is the parent who is paying support or the parent who is receiving support.

In instances where the parent paying tuition is the parent paying support, the cost of tuition will act as a deduction on the support obligation. The deduction is not dollar for dollar, meaning that the support obligation is not reduced by the exact amount of tuition. A general, though not exact rule, is that $1.00 of tuition will reduce child support by about $0.35 to $0.50, depending on the parties incomes.

In instances where the parent paying tuition is the parent receiving support, the cost of tuition will act to raise the child support amount. As described above, the increase is not dollar for dollar. A general, though not exact rule, is that $1.00 of tuition will increase child support by about $0.35 to $0.50, depending on the parties incomes.

In instances where the parties each pay a portion of support, they will each receive the appropriate deduction or increase discussed above. This will cause the deduction and increase to partially cancel each other out, but even in cases where tuition is split 50/50 the effect may be to raise or lower the support obligation.

An attorney can assist you in determining the effect of private tuition on your final support obligation.

In future articles we will explore the effect of additional items on child support, including health insurance, work related daycare, and periods of overnight visitation.

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Missouri DWI Expungement

Thu, 28 Mar 2019 19:26:00 GMT

State of the Law

Under Missouri law certain offenses may be expunged following a period of good behavior without additional convictions. If all prerequisites are met it is currently possible to expunge a Missouri DWI including all records of criminal conviction, arrest records, and driving records. The effect of such order shall be to restore such person to the status he or she occupied prior to such arrest, plea or conviction as if such event had never taken place . See 610.130 RSMo.

In order to receive an expungement a petition must be filed in the original court of conviction. Following such filing, the matter must be set for an evidentiary hearing at which evidence will be presented. If all prerequisites are met, a judgment expunging the prior conviction and/or plea will be entered. A skilled attorney can be crucial in properly drafting the petition and presenting evidence during the expungement hearing.

Prerequisites for Expungement

In order to be granted an expungement of a prior DWI, a person must meet the following prerequisites:

Your Legal Rights!

Remember: You have a right to the assistance of an attorney to expunge your prior DWI! An experienced attorney will be able to determine:

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready, contact our offices to schedule a free appointmen t !

Guide to Minor in Possession in Missouri

Thu, 28 Mar 2019 19:25:00 GMT

State of the Law

Under Missouri law it is a misdemeanor for anyone under the age of twenty-one to purchase, attempt to purchase, or have in his or her possession any intoxicating liquor; to be visibly in an intoxicated condition; or to have a detectable blood alcohol content of more than two-hundredths of one percent.

In 2005, Missouri law was expanded to include so called “possession by consumption” , providing that prosecutors no longer needed to show that a minor actually purchased or possessed alcohol. Now merely appearing visibly intoxicated, or having a detectable B.A.C. will constitute a violation, even if there is no evidence of actual possession.

Many charges for Minor in Possession, also arise under the laws of individual cities, including Columbia, Missouri. The elements required to commit the offense are often almost identical to the State law, but there are often significant differences in the range of punishments available to the Prosecutor.

Remember: you do not need to operate a motor vehicle, or be over the State legal limit to be convicted of Minor in Possession. The fact that:

may be sufficient to convict you of violation of the State of City Minor in Possession laws.

Abuse and Lose: Will I Lose My License?

Under Missouri’s Abuse and Lose law, 302.400 RSMo , charges for Minor in Possession, False Identification, or Drug Possession , can now impact your right to operate a motor vehicle, regardless of whether a vehicle was involved in your underlying offense. Currently, the application of the Abuse and Lose law turns on how your charge is filed. In the large majority of first time offenses, a skilled attorney will be able to avoid ramifications for your license.

Potential license suspensions include:

Remember: How the charge is written will largely determine the potential for license suspension or revocation. Often, the same set of facts that could potentially impact your drivers license can be charged so as not to take you off the road at all!

Criminal Punishment: Will I Go to Jail?

Violation of the Missouri Minor in Possession law can be punished by a fine of up to $1,000.00, or imprisonment in the County Jail for up to 1 year. As a practical matter, however, the majority of convictions will receive punishments significantly below these maximums. Jail sentences for minor in possession convictions are rare, unless there is some special or extraordinary circumstance.

An experienced attorney can often minimize or avoid these punishments altogether. Through proper negotiation and strategy, it is often possible to serve probation in lieu of fines or imprisonment. As an added bonus, successful completion of such probation will often prevent any record of the underlying offense! It is therefore possible to come out of your ordeal with NO CRIMINAL RECORD!

Your Legal Rights!

Remember: You have a Constitutional right to the assistance of an attorney to defend against a minor in possession charge! An experienced attorney will be able to determine:

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Abuse and Lose Driver License Consequences for Minors

Thu, 28 Mar 2019 19:24:00 GMT

State of the Law

In addition to criminal penalties for possession of drugs or alcohol, the State of Missouri includes civil penalties such as suspension or revocation of driving privileges for violations committed by a person under twenty-one (21) years of age. See 302.400 RSMo ; and 302.405 RSMo .

The offenses covered by the Abuse and Lose include:

License Suspension

Potential license suspensions or revocations depend on a number of factors. Factors range from the way the specific offense is charged to the probable cause for the stop. Even in cases of an offense included in the abuse and lose laws, a skilled attorney can often work to avoid the civil effects on your driver’s license and keep you on the road.

For offenses listed under numbers 1, 2, 4, and 5 of the above section, the first offense will result in a ninety (90) day license suspension. A second offense will result in a one (1) year license revocation.

For offenses related to State Law violations of alcohol or second city ordinance offenses, but not involving operation of a motor vehicle, the first offense results in a thirty day license suspension. A second offense results in either a ninety (90) day suspension or one (1) year revocation. A third offense results in a one (1) year revocation.

How Do I Get My License Back?

In order to reinstate your driver’s license after an Abuse and Lose suspension or revocation, you will need to:

Your Legal Rights!

Remember: You have a Constitutional right to the assistance of an attorney to defend against a minor in possession charge! An experienced attorney will be able to determine:

Attorneys at Cline, Braddock & Basinger are ready to assist you. It is our hope that you find these materials useful. When you are ready contact our offices to schedule a free appointment!

Cline, Braddock & Basinger

Missouri Small Estate Affidavits

Introduction

Process of a Small Estate

Conclusion

Missouri Guardianship and Conservatorship

Introduction

Difference Between Guardian and Conservator

Persons Requiring Guardians or Conservators

Who May Serve as Guardian or Conservator

Process to Establish Guardian or Conservator

Emergency Guardian or Emergency Conservator

Conclusion

Missouri Sentencing Ranges, Minimum Terms, and Enhancement

Sentencing Authority

Classification of Felonies and Misdemeanors

Sentence Enhancement and Persistent Offenders

Minimum Terms of Imprisonment

Sentencing Alternatives

Missouri Expungements

Introduction

Offenses That May Be Expunged

OFFENSES AGAINST PERSONS THAT CAN BE EXPUNGED

ARSON, BURGLARY, TRESPASSING AND RELATED OFFENSES THAT CAN BE EXPUNGED

WEAPON OFFENSES THAT ARE ELIGIBLE FOR EXPUNGEMENT

OFFENSES AGAINST PUBLIC ORDER THAT ARE ELIGIBLE FOR EXPUNGEMENT

OFFENSES AGAINST THE ADMINISTRATION OF JUSTICE THAT CAN BE EXPUNGED

PUBLIC SAFETY OFFENSES THAT ARE ELIGIBLE FOR EXPUNGEMENT

DRUG OFFENSES WHICH ARE ELIGIBLE FOR EXPUNGEMENT

MISCELLANOUS OFFENSES ELIGIBLE FOR EXPUNGEMENT

Offenses That Cannot Be Expunged

Conclusion

Last Will & Testament

Introduction

Personal Representatives

Independent Administration and Bond

Gifts and Devises

Providing for Children

Providing for Disabled Relatives

Conclusion

Missouri Driver’s License Reinstatement and Five or Ten Year Denials

Introduction

Causes of Suspensions or Revocations

Point Suspensions

DWI

Minor In Possession/Abuse and Lose

Restricted or Limited Driving Privileges

Point Suspensions

First DWI

Second DWI

Third DWI

Abuse and Lose

License Reinstatement

Point Suspensions

First DWI

Second DWI

Third DWI

Abuse and Lose

Miscellaneous

SR22 Insurance

SATOP

Further Reading

Name Changes in Missouri

Introduction

Adoption

Dissolution of Marriage

Naturalization

Custom and Usage

Statutory Name Change

Paternity

Additional Steps

Missouri Beneficiary Deeds

Introduction

Why Should I Use a Beneficiary Deed?

How Does a Beneficiary Deed Work?

Conclusion

Missouri Equal Custody Law

Missouri Step Parent Adoptions

General

Termination of Parental Rights

First Suspension – Thirty (30) days

Second Suspension – Sixty (60) days

Third (or subsequent) Suspension – Ninety (90) days