Montana Divorce FAQ
Find answers to common questions about the divorce process in Montana
You'll find answers to common questions about getting a divorce in Montana below. For more information on family law in Montana, see our Montana Divorce and Family Law page.
For all of our articles on dividing property when a couple splits up, see our Divorce and Property area.
What are the grounds for divorce in Montana?
Montana has a no-fault divorce law. To grant a divorce, the court must determine either that:
- the couple has lived separate and apart for more than 180 consecutive days before the petition for divorce is filed, or
- there is serious marital discord between the spouses and no reasonable prospect of reconciliation.
The legal term for divorce in Montana is "dissolution of marriage." While divorce ends the marriage, however, the couple may have ongoing legal arrangements regarding custody, child support, and maintenance.
What if only one spouse wants a divorce?
If one spouse wants a divorce in Montana, there's nothing the other spouse can do to prevent it.
What's the difference between legal separation and divorce?
If a couple is legally separated, they live separately but remain legally married. The spouses' 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 identifying the issues in your case. A lawyer will also 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 division. 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 spouses must still appear in court and present brief testimony to finalize the divorce, which you lawyer can do. 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 or the other, but not both.
What does a divorce cost?
Ask your lawyer about fees and costs during your first meeting. How much a lawyer charges will depend on how complex your case is and how many court appearances will be required. Cases that require hearings, trials 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. You'll have to pay a fee to file the divorce petition, as well as a fee to finalize the divorce. 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 decides whether or not to accept particular settlement terms?
You have the final decision about settlement terms. Your lawyer is required to submit all settlement proposals to you for your review.
What is a separation agreement?
A Separation Agreement is a document that sets out the terms the couple has agreed to prior to a divorce. It is considered to be a binding contract. 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.) A court may award maintenance only if the spouse seeking maintenance:
- lacks enough property to provide for his or her own reasonable needs, and
- is unable to be self-supporting through employment or has custody of a child whose condition or circumstances make it appropriate for the spouse not to be required to work outside the home.
If a court decides to award maintenance, it may set a duration and amount for the award that it considers just, in light of all the circumstances, including:
- the financial resources of the spouse seeking maintenance, including any marital property distributed to that spouse, the spouse's ability to meet his or her own needs independently, and any provision for the spouse in a child support agreement
- how long it will take the spouse seeking maintenance to get the necessary training and education to find appropriate employment
- the standard of living established during the marriage
- the length of the marriage
- the age and physical and emotional health of the spouse seeking maintenance, and
- the ability of the spouse paying maintenance to meet his or her own needs while also paying maintenance for the other spouse.
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, age and health of the spouses, 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. If the parties divide their property by agreement, the judge will review the agreement.
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?
Divorcing parents must file a parenting plan with the court. If parents cannot decide how to resolve a specific issue, the court will make a determination based on the child's "best interests." For more information, see Child Custody in Montana: The Best Interests of the Child.
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. To learn more, see the Montana Child Support Guidelines.
Montana law requires that all divorce decrees address health insurance coverage for the children.
What if I want to move with my children?
If your move will significantly affect the child's contact with his or her other parent, you must give the other parent thirty (30) days written notice of your intended residential change. The notice must include a revised residential schedule for the child.
What is mediation?
Mediation is a voluntary process divorcing spouses can use to find common ground to resolve their differences. A neutral third party works with the spouses 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 spouses (rather than 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.