Montana courts refer to payments as "maintenance," and historically, reserved it for stay-at-home spouses who would otherwise fall into financial distress without extra help after a divorce.
While it’s common today for both spouses to work outside the home, the court still permits judges to award spousal maintenance in divorces where a financially dependent or lower-earning spouse needs help making ends meet.
Judges in Montana award three types of maintenance: temporary, short-term, or permanent. The divorce process is lengthy and both spouses must quickly adjust to a new standard of living while supporting two separate households. Temporary support helps a financially dependent spouse remain afloat during the divorce, and ends when the judge finalizes the divorce. A temporary support order doesn’t always guarantee ongoing support after the divorce.
Short-term support is the most common type of maintenance in Montana and the court sometimes refers to it as "rehabilitative support." After the divorce, the court expects both spouses to become financially independent but understands that it may take one spouse more time than others.
Rehabilitative support is helpful for spouses who can work but need time and financial support to acquire necessary job skills and education to find employment and become self-supporting. The court will typically set an end date for rehabilitative support, but if the supported spouse needs more time to find a job, that spouse can request a review at the end of the term.
Permanent support is a long-term solution for spouses who can’t become self-supporting due to advanced age, absence from the job market, or disability. The court doesn’t order permanent support often, and judges reserve it for longer marriages. Permanent support isn’t always indefinite and most courts allow the paying spouse to petition for a review if circumstances change for either spouse later.
In Montana, either spouse can request spousal maintenance, but it’s not automatic in any divorce. If you’re asking the court for support, you’ll need to prove that you:
Once the court determines that you qualify for maintenance, it will then evaluate the following factors to determine the amount and duration of support:
If you’re looking for a maintenance calculator, you won’t find one. Judges have broad discretion when deciding how much support to award, and will weigh the above-listed factors equally. The goal of maintenance is to ensure that both spouses are similarly situated financially, not to punish either spouse for marital misconduct. While some states allow judges to consider “fault” during alimony evaluations, Montana expressly prohibits it. (Mo. Rev. Stat. § 40-4-203 (2) (2017).)
The duration of maintenance depends on the type of support and the circumstances that supported the order in the first place.
Temporary alimony is only available during the divorce process, but there's no bright-line rule for how long short-term or permanent support lasts, and it depends on the judge's initial evaluation.
The court may make an order that maintenance ends when a specific event occurs. For example, rehabilitative maintenance payments may end when you complete your education and obtain a degree, or when you find a job that allows you to support yourself. Additionally, support may end when the recipient remarries, or when either spouse dies.
The court may order maintenance payments to be in one lump-sum, through a property transfer, or other periodic payments. Periodic payments, usually monthly, are the most common for support orders. Paying spouses can elect to make payments directly to their spouse, but both spouses must agree to that arrangement.
Alternatively, you can ask the court for an income withholding order, which directs the paying spouse’s employer to deduct the support from the employee’s paycheck automatically. (Mo. Rev. Stat. § 40-4-207 (2017).) The court clerk maintains records and both spouses must keep up-to-date information on file. (Mo. Rev. Stat. § 40-4-206 (2017).)
If you’re not receiving court-ordered payments, you can ask the court to enforce the order. The court has extensive powers, and a failure to pay as required can result in severe penalties ranging from fines, attorney's fees, bank account seizures, and even jail time.
Both spouses can agree, in writing, that a court can change a support order later. (Mo. Rev. Stat. § 40-4-201 (2017).) But if the alimony order is nonmodifiable—either by the court or by written agreement—then neither spouse can ask the court for a review, and the support amount will remain the same. However, if there's no provision prohibiting modification, either spouse can ask the court to change the order.
If you’d like to qualify for a review, you must prove that, since the last order, there’s been a substantial change of circumstances that makes the terms of the original order unconscionable—meaning completely unfair. A change in circumstances may be that one spouse remarried, or, that the supported spouse completes an education program or finds employment sooner than the end date listed in the order. You may also qualify if you are paying support and become disabled or otherwise unable to work. The court will determine whether the change is significant enough to modify the order. (Mo. Rev. Stat. § 40-4-208 (2017).)
Until recently, the law dulled the pain of alimony payments by allowing paying spouses to deduct payments at the end of each tax year. It also required the recipient of support to report the income for tax purposes. However, beginning on January 1, 2019, changes to the Tax Cuts and Jobs Act eliminated the tax-deduction and reporting requirements for maintenance payments—meaning the paying spouse pays taxes, and the recipient does not.
Before you negotiate an agreement with your spouse or ask the court for maintenance, it’s critical that you speak with an experienced tax expert and divorce attorney to learn what the tax changes mean for your bottom line.