Legal Separation in Montana FAQs

Don't underestimate how a separation can affect your divorce.

What’s the Difference Between a Separation and Divorce?

Separations are short-term solutions. Your separation can be informal where you and your spouse choose to live apart for a few months and informally agree how to divide assets, debts, and monthly expenses. Alternatively, you may seek a formal legal separation with the court.

Separation laws vary from state to state, but in Montana, you can request a formal, legal separation from your local court. If you meet the requirements, then a judge may issue a separation order, also called a “maintenance order.” However, a separation order only lasts for two years and while it’s in place, you’re still married and can’t remarry someone else.

If you want to end your marriage and remarry, you will need to file for and finalize a divorce, after which you should receive a permanent order terminating your marital status, dividing marital property, determining alimony, and setting child custody and support (if there are minor children of the marriage).

Montana allows couples who have obtained a legal separation order to convert that order into a formal divorce decree automatically if it’s been at least six months since the separation order was issued. A divorce decree is a final order resolving your case. For example, during a separation period you could be liable for any debts incurred by your spouse. You may also have to split income earned during a separation period with your spouse. Once a divorce decree is issued, your separate income, property, assets, and/or debts are completely yours.

Does Montana Require a Separation Period?

No. In Montana, a couple may file for divorce if the marriage is irretrievably broken. One way of showing a marital breakdown is if you and your spouse have lived apart for at least 180 days. A couple may skirt around the separation period requirement if there’s serious marital discord that affects either spouse’s well-being. One example of discord might be a spouse’s physical or emotional abuse.

Is It Still a Separation If My Spouse and I Continue to Live in the Same House?

The answer depends on how separately you and your spouse live your lives. Montana statutory law doesn’t define what a “separation” looks like. You and your spouse may be able to reside in the same household while separated depending on your family's circumstances. If you and your spouse have established separate bedrooms, each pay your share of the mortgage, do not have intimate relations, and don’t share meals or joint expenses, it’s likely a judge will consider you separated. However, if you want to simplify your case, the easiest way to prove that you and your spouse are separated is by living apart.

What’s Included in a Separation Agreement?

A legal separation agreement order may last for up to two years. While it may be a long-term order, it’s still temporary. Similar to a temporary divorce order, a separation order can resolve all issues relevant to your case. Specifically, your separation order should address the following as appropriate:

  • who lives in (or receives) the marital home
  • which spouse is responsible for mortgage payments, insurance premiums, and property taxes
  • health insurance coverage
  • child custody, including holiday visitation and exchanges
  • child support
  • alimony or spousal maintenance
  • each spouse’s right to the other’s 401(k) or retirement benefits
  • each spouse’s responsibility for marital debts
  • each spouse’s right to marital assets, and
  • any other issues the court deems relevant.

Additionally, a separation order may restrain you or your spouse from selling marital assets, borrowing money, changing insurance coverage, leaving the state with your child, or transferring assets. Essentially, a separation order acts as a freeze on your assets and will prevent either spouse from squandering money or reducing the value of the marital estate before divorce.

Couples can make their own separation agreements and submit those to the court for approval. A judge will typically approve the agreement and turn it into an official order, unless it’s unconscionable (extremely unfair) or it doesn’t serve your child’s best interests. The terms of a separation order are enforceable just like a divorce decree, even if it’s for a limited duration.

What Are the Benefits of a Legal Separation?

Although not a final solution, a legal separation may be the best option for many couples on the brink of divorce, but not quite ready to take the plunge. For example, some couples may delay divorce and seek a legal separation while waiting for the housing market to recover or to allow a spouse to get back into the workforce. Financially, a legal separation may make more sense than a divorce.

Additionally, other couples may want to delay divorce to allow their children to complete the school year or even wait until a child has left the nest and begins college. A legal separation can allow you and your spouse additional time to sort out your assets and debts. Even if you ultimately divorce, a separation rarely hurts you financially and may leave you better prepared for a divorce.

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