Every state has its own rules and procedures for filing a divorce. Here's what you need to know to get started with your Montana divorce.
You must meet a state's residency requirements before you can file for divorce in its courts. To get a divorce in Montana, one of the parties must have been living in the state for 90 days immediately before the divorce is filed. (Mont. Code § 40-4-104 (2022).)
You'll file in the district court in the county where either spouse has lived for the past 90 days. (Mont. Code § 25-2-118(3) (2022).)
Montana is a "no-fault" divorce state—meaning that the courts don't require one spouse to prove that the other's bad acts were the cause of the divorce. No-fault divorces reach resolution faster than fault-based divorces because the spouses don't have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you don't have to have your spouse's consent to end the marriage.
A Montana court will find that there is good reason ("grounds") to grant a divorce when a spouse states in the complaint that there has been an "irretrievable breakdown of the marriage." (Mont. Code § 40-4-107 (2022).) Also, the spouses must declare that there is "serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage" OR have lived separate and apart for more than 180 days immediately before filing. (Mont. Code § 40-4-104 (2022).)
In other words, the court requires a statement by one of the spouses that the marriage is over and there's no chance of reconciliation.
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and alimony (spousal support). A contested divorce, on the other hand, is one where the spouses disagree on at least one topic and must ask a court to decide the issues in their divorce.
Uncontested divorces usually reach resolution faster and are less expensive than contested divorces because there's no fighting in court. Instead, the judge needs only to review and approve the spouses' marital settlement and issue a divorce decree.
To begin your Montana uncontested divorce, you and your spouse can file a Joint Petition for Dissolution (with minor children or without minor children) in the correct district court. Along with the joint petition, you'll file:
If you have children, you'll have to file a parenting plan (and possibly other additional forms—check with the clerk to make sure you have all the forms you need, or fill out the court's online questionnaire, "What Form Do I Need?" to get instructions and forms.
Normally, you need to attend a court hearing to finalize your divorce in Montana. When your divorce is uncontested, though, you and your spouse might be able to avoid a hearing by filing an "Affidavit for Entry of Decree for Dissolution of Marriage Without Hearing" when more than 21 days have passed since you filed your joint petition. When you file the affidavit, you should attach a proposed Decree of Dissolution of Marriage. A judge will review your paperwork, and if everything is in order, the judge will sign your divorce decree. If there are any questions, the judge might require a hearing before finalizing your divorce.
If you don't file this affidavit, you'll need to request a hearing date. Generally, both spouses must attend this hearing, but one spouse can waive the right to appear by filing a "Consent to Entry of Decree" based on the proposed final decree filed with the court.
(Note: Montana law also provides for a separate uncontested divorce procedure known as "summary dissolution." To qualify for a summary dissolution, you have to meet certain requirements, such as not owning any real estate. However, Montana courts now allow joint dissolution petitions for couples who own a home or other real estate.)
A contested divorce begins when one of the spouses files a Petition for Dissolution of Marriage (there are different forms for couples with and without minor children). You'll also need to file a:
If you have minor children, there will be additional forms for you to submit. Check with the clerk to make sure you have all the forms you need, or fill out the court's online questionnaire, "What Form Do I Need?" to get instructions and forms.
Along with filing the right paperwork, you'll have to pay court a filing fee to begin your divorce. The filing fee as of 2022 for a divorce is $200.
If you can't afford to pay the filing fee, you can ask the judge to waive the fees by filing a fee waiver form titled "Statement of Inability to Pay Court Costs and Fees." The judge will review your statement, and has the authority to waive all of your costs and fees permanently or temporarily (meaning you might have to pay them at a later time, perhaps after your divorce is finalized).
Once you file the paperwork, you'll need to provide notice to your spouse of the divorce by "serving" (delivering) copies of what was filed with the court. You can serve your spouse by using one of the following methods:
If you'd like to DIY your divorce, many of the forms you'll need—along with step-by-step instructions—are on the Montana courts website.
If you're working with an attorney, your attorney will assess your situation and fill out, file, and serve all the necessary forms. Many divorcing couples can't afford to hire an attorney to handle their entire case, but would like some assistance with completing and filing their forms. If this describes your situation, consider using an online divorce service or finding an attorney who will consult with you on an as-needed basis. Low-income individuals might qualify for reduced-fee or free legal aid.