Montana Divorce

What are the grounds for divorce in Montana?
Montana has a "no fault" divorce law. To grant a divorce, the court must determine a) that the couple has lived separate and apart for more than 180 consecutive days before the petition for divorce is filed; or b) there is serious marital discord between the parties and no reasonable prospect of reconciliation.

The legal term for divorce in Montana is "dissolution of marriage." While divorce ends the marriage, there may be on-going legal agreements between the couple, including custody, child support and maintenance.

What if only one spouse wants a divorce?
There is no way to prevent a divorce in Montana if one spouse wants it and the other spouse doesn't.

What's the difference between legal separation and divorce?
If legally separated, the parties live separately, but remain legally married. The couple's rights and duties to each other are determined in a decree of legal separation. The legal procedures are almost identical to those for divorce. Once legally separated for six months, either party may ask the court to convert the legal separation to a dissolution of the marriage.

What are the advantages of having a lawyer during a divorce?
A lawyer will assist you in the identifying issues in your case. A lawyer will help you negotiate a fair settlement to avoid a trial. The lawyer will give you up-to-date advice regarding the laws on custody, spousal and child support, and property divisions. The lawyer will counsel you regarding the reasonableness of proposed settlement terms and what you might expect if the judge decides the case. If a settlement is reached before trial, one of the parties must still appear in court and present brief testimony to finalize the divorce. If settlement is not reached, the lawyer will prepare your case for trial and represent you in the courtroom. A lawyer will properly prepare all paperwork in connection with your divorce.

Should the same lawyer represent both spouses?
No. There are conflicts of interest between spouses at the time of a dissolution. A lawyer should represent only one party.

What does a divorce cost?
Ask your lawyer about fees and costs during your first meeting. The total cost of a divorce is determined by the complexity of the matters to be resolved and the number of court appearances required. Cases which require hearings, trial or appeal are more expensive. Your lawyer will charge you for his or her hourly time, plus costs. Hourly rates may vary, depending on the skill and experience of the attorney. Costs for divorce are in addition to fees. As of 1997, filing the petition costs $175. The appearance fee for the responding party is $65. Finalizing the decree costs $45. There are additional costs for service of process, expert witnesses, appraisals, certified copies, depositions and other items.

Who makes the decisions about parenting, support, property division, maintenance and other matters?
Most divorcing couples resolve their differences and reduce their agreements to writing with the assistance of lawyers. Any issues they cannot resolve are decided through mediation or by a judge. There are no juries in divorce cases.

Who determines what settlement is accept?
You have the final decision about settlement terms. Your lawyer is required to submit all settlement proposal to you for your review.

What is a separation agreement?
A Separation Agreement is a recitation of terms mutually agreed upon by parties prior to a divorce. It is considered to be a binding contract and once it is approved by a judge, it can only be modified under certain circumstances. It contains provisions for division of property and debts, maintenance, child support and parenting.

What is maintenance?
In Montana, spousal support is called maintenance. In the past, it was called alimony. Either spouse may receive maintenance and awards are determined by financial needs and resources, workplace skills of both parties, the presence of minor children in the home, the standard of living enjoyed during the marriage, the length of the marriage, the age and health of the spouse seeking maintenance, and the ability of the other spouse to pay.

The court may award property in lieu of maintenance. Unless otherwise agreed, maintenance stops upon the remarriage of the recipient or the death of either party. Under certain circumstances, maintenance may be raised or lowered after the original award.

How is property divided?
Montana law recognizes that spouses who work as homemakers and spouses who work outside the home both contribute to the property acquired during the marriage. Property is to be divided equitably between the parties upon divorce. An equitable distribution is not always a 50/50 distribution. Several factors, including the length of the marriage, skills and relative abilities of the parties, needs and opportunities to acquire future assets, and other criteria are considered. The court can apportion all property owned by either or both spouses, regardless of how title is held and when or how it was acquired. The court will not consider marital misconduct in dividing property. There are special rules for property received by gift or inheritance and property acquired in pension or retirement plans. If the parties divide their property by agreement, the judge will review the agreement. The division of property will not be reopened, except under extremely limited circumstances.

When a divorce action is commenced, a restraining order is automatically imposed on all marital assets. Both parties must fully disclose to each other all of his or her assets and liabilities within sixty days of the commencement of the proceeding. Failure to disclose an asset may allow the court to reopen the case for up to five years after a fraudulently concealed asset is discovered.

Who pays the debts of the marriage?
If the parties cannot divide their debts by agreement, the court will. However, the parties' agreement or the court's decree allocating joint debts is not binding on a creditor, unless the creditor agrees. If a spouse fails to pay, a creditor may sue the other spouse. The spouse who pays the creditor must seek reimbursement from the spouse who was supposed to pay the joint debt.

How are child custody issues resolved?
Beginning October 1, 1997, the words "custody" and "visitation" no longer appear in the statutes governing dissolutions. "Parenting" and "parental contact" are the new terms used. Terminology was changed to eliminate disputes between parents over words used and focus attention on the best interests of the children. Parents now must file a "Parenting Plan." The plan can be simple or complex. Forms may be used to identify virtually every potential parenting issue that could arise. If parents cannot decide how to resolve a specific issue, the court will make a determination based on the child's "best interests." This new methodology and terminology will eliminate non-contested issues, specify contested issues and focus attention on the contested issues. The new statutes also provide a four-step process for resolving parenting issues and disputes.

Are there guidelines to determine child support?
Montana has guidelines to determine child support based upon the total income of both parents. Daycare, insurance, and medical costs are included in the computation. The guidelines allocate the amounts to be paid by each parent, taking into account financial resources of the parents and children, the children's needs, and the standard of living the children would have enjoyed had the parents stayed married.

Child support continues until a child is emancipated or graduates from high school, but no later than the child's 19th birthday, unless the parties agree, or the court orders otherwise. Some parents agree to continue child support through college.

Child support may be raised or lowered in the event of a change in financial circumstances or needs. Some parents agree to review support periodically. In some instances, child support may be determined in an administrative proceeding.

Montana law requires that all divorce decrees address health insurance coverage for the children. Child support must be paid automatically from a parent's wages, unless good cause exists to waive automatic deductions.

How long does it take to get a divorce in Montana?
You or your spouse must make your home in Montana prior to filing a petition for dissolution. A divorce may be finalized twenty days after the other spouse is served with the divorce papers, but it usually takes much longer than twenty days. Generally, your lawyer can tell you how long it will take to get a divorce after consideration of the issues in your case and the court's calendar.

What if I want to move with my children?
If you intend to move, you must give the other parent thirty (30) days written notice of your intended residential change. Notice must be served personally or by certified mail. Notice must include a revised parenting plan.

What is mediation?
Mediation is a voluntary process wherein parties attempt to find common ground to resolve their differences. A neutral third party works with the parties to assist in the discussion. Lawyers may or may not be present. Mediation can occur at any time in the divorce process. Mediation has several advantages. It is less expensive than a trial and it can occur at any time. Solutions are created by the parties and not the judge and therefore they have a higher chance of success. The court may require that parents participate in mediation to resolve disputes that arise under parenting plans. The supreme court requires that all divorce cases proceed to mediation at the beginning of the appellate process.

Lawyer Referral Service.
If you need legal assistance and do not know an attorney, call the Montana Lawyer Referral Service. You will be referred to a lawyer appropriate to your location and problem. Call 406-449-6577.

This information is intended to inform you about Montana law generally. It is not intended as advice. You are encouraged to speak to an attorney regarding the specifics of your situation.