This memorandum is in response to your request for our legal opinion regarding the
effective date of a divorce decree and whether Missouri law provides for a 30 day
interlocutory period before a divorce decree becomes final. After reviewing our prior
opinions and the current relevant law, we conclude that under Missouri law, a divorce
decree is final when entered subject to appeal. This supersedes our advice given on
February 20, 2001, and February 26, 1997.
Factual Background
The information you provided indicates that Irl G~ applied for benefits for dependents
of veterans with 30 percent or greater disability ratings on behalf of his purported
wife, Linda G~. In order for Linda G~ to receive benefits, their marriage must be
valid under Missouri law.
The court records indicate that the dissolution of the marriage of Irl G~ and K~-S~
T. G~ was entered on the morning of November 22, 1996. Rev. Paul E. S~, Pastor of
the King of Kings Lutheran Church stated that he performed the wedding of Irl G~ and
Linda M~ at 2:00 p.m. on November 22, 1996. Neither party contested the divorce proceedings.
Analysis
Missouri statutes provide in relevant part:
1. A judgment or dissolution of marriage or of legal separation is final when entered,
subject to the right of appeal. An appeal from a dissolution that does not challenge
the finding that the marriage is irretrievably broken does not delay the finality
of that provision of the judgment which dissolves the marriage beyond the time for
appealing from that provision, so that either of the parties may remarry pending appeal.
See Mo. Ann. Stat. § 452.360.1. Thus, if neither party appeals the finding that the marriage
was "irretrievably broken", the divorce is final when entered and both parties are
free to marry.
There has previously been some question as to whether judgments dissolving marriages
are final when entered or become final 30 days later when the trial court loses its
authority to modify the judgment. Under Missouri Rules of Civil Procedure, a judgment
does not become final until 30 days after its entry. Rule 75.01 of the Missouri Rules
of Civil Procedure states:
The trial court retains control over judgments during the thirty-day period after
entry of judgment and may, after giving the parties an opportunity to be heard and
for good cause, vacate, reopen, correct, amend, or modify its judgment within that
time. Not later than thirty days after entry of judgment the court of its own initiative
may order a new trial for any reason for which it might be granted a new trial on
a motion of a party and every order granting a new trial shall specify the grounds
therefore . . . .
In Lacher v. Lacher, 785 S.W.2d 78 (Mo. en banc 1990), the Court held that a decree of dissolution becomes
final, for purposes of modification, 30 days after its entry. Unlike the present fact
situation, in Lacher, the trial court was trying to extend its authority to modify a judgment beyond 30
days. See Lacher at 78-79. In Lacher, the Court simply held that, pursuant to Rule 75.01, the trial court only retains
jurisdiction to modify a dissolution of marriage for 30 days following its entry.
The Court did not address the present fact situation where the dissolution was not
contested and one of the parties married prior to the expiration of the 30-day period.
If a trial court exercises its authority under Rule 75.01 within the 30 days following
entry of judgment, this could change the finality of the divorce and we suggest that
under those circumstances you submit the case for legal review. You should also seek
legal review if one of the parties appeals the decision that the marriage is irretrievably
broken.
In James v. James, 45 S.W.3d 458, 460 (Mo. App. S.D. 2001)(citing Dunafon v. Dunafon, 800 S.W.2d 483, 484 (Mo. App. W.D. 1990), the court held that a judgment granting
a dissolution of marriage was final when entered. In Stamatiou v. El Greco Studios, Inc., 898 S.W.2d 571, 575 (Mo. App. W.D. 1995), the court stated: "In enacting §
452.360.1 the legislature intended that the part of the decree dissolving the marriage
would become final by operation of law if it were not appealed, thereby allowing the
parties to remarry even if other matters in the dissolution were appealed." See also Stratman v. Stratman, 948 S.W.2d 230, 234 (Mo. App. W.D. 1997); Fischer v. Seibel, 733 S.W.2d 469, 472 (Mo. App. W.D. 1987). From this case law, it is clear that Missouri
courts have interpreted the statute to allow an individual to remarry when neither
party has contested the finding that the marriage is irretrievably broken.
Our interpretation is supported by other Missouri law, which states that a second
marriage is presumed to be valid. See Estate of Lucas v. Lucas, 909 S.W.2d 365, 369 (Mo. App. S.D. 1995); Carr v. Carr, 232 S.W.2d 488, 489 (Mo. 1950). A second or subsequent marriage will not be declared
invalid except upon clear, cogent and convincing evidence. See Chervitz v. Bi-State Development Agency, et al., 11 S.W.3d 714, 717 (Mo. App. E.D. 2000); Enlow v. Fire Protection Systems, Inc., 803 S.W.2d 148, 150 (Mo. App. E.D. 1991). See also In re Marriage of Sumners, 645 S.W.2d 205, 208 (Mo. App. 1983)(quoting Carr, 232 at 489). Generally, the presumption
of the validity of a marriage is not overcome by proof that the prior spouse is alive
at the time of the second marriage and that one party to the first marriage did not
obtain a divorce from the other. See State v. Byrd, 676 S.W.2d 494, 501 (Mo. 1984)(citing Maier v. Brock, 120 S.W. 1167, 1170 (Mo. 1909)).
In addition, there is a strong presumption against bigamy in Missouri. See State v. Hansbrough, 80 S.W. 900, 901-02 (Mo. 1904). See also Waddingham v. Waddingham, 21 Mo. App. 609, 188 WL 5081, *11-12 (Mo. App. 1886)(Where a married man is shown
to have been married to a former wife, and no divorce is shown, the presumption that
he is innocent of the crime of bigamy will rebut the presumption that the former marriage
relation still exists).
Conclusion
In this case, it is clear that the judgment and decree of dissolution were entered
by the judge on November 22, 1996. Neither of the parties appealed the finding that
the marriage was irretrievably broken. In addition, there are strong presumptions
in favor of the validity of a second marriage and against bigamy.
On the facts presented, it is reasonable to conclude that the dissolution became final
on November 22, 1996. Therefore, the marriage of Irl G~ and Linda G~ would be found
valid under Missouri law.