Johnny Carson. Christie Brinkley. Paul McCartney. These are names that evoke thoughts of greatness. They're also names that evoke memories of incredibly vicious divorces—divorces so ugly that they were front page news, destined to become the stuff of nightmares.
But just because you're going through a divorce doesn't mean that you have to wind up in the same boat as these celebrities. If you and your spouse can cooperate, negotiate, and talk with one another, you can get an uncontested divorce that will be cheaper and quicker than arguing in front of a judge.
This article will explain uncontested divorces in Montana. If you still have questions after reading this article, you should consult with an experienced family law attorney.
An uncontested divorce simply means that both spouses agree on all the key terms of the divorce, including:
If you or your spouse disagree about any of these items, your divorce will be considered "contested" and it will have to go to trial.
There are two kinds of uncontested divorce in Montana: divorce by default and joint dissolution (divorce):
The "respondent" (the spouse who was served with a petition for divorce, which is the document that starts the divorce process) declines to submit an answer or any other paperwork in response to the petition. The respondent simply stands pat, and after 20 days, the respondent is "in default."
Then the court schedules a final hearing and, as long as the petitioner's requests are fair, a judge will sign the final order. This is a common way for divorcing spouses to get an uncontested divorce, especially in cases where they can't agree in the beginning, but come to a total resolution later.
Both spouses are considered co-petitioners. They reach an agreement about all issues in the case before they begin. They prepare the petition and all divorce-related paperwork together. This process is even simpler and quicker than divorce by default.
There are a couple of preliminary rules that have to be satisfied before you can get divorced in Montana.
First, you must have been a resident of the state for at least 90 days before filing the divorce papers. In addition, if you have children who are under the age of 18, they have to have lived in Montana for at least six months before you can file divorce.
Second, you have to give the court a "ground," or legal reason, for the divorce. Irretrievable breakdown of the marriage is the only ground recognized in Montana, and it means that the marriage has broken down so badly that it can't be repaired. There's no need to argue about intimate details of your marriage.
You can show that there's been an irretrievable breakdown of your marriage in one of two ways:
You’re responsible for knowing where to file your papers. If you file in the wrong place, your case could be tossed out or transferred and you might have to start over. The Montana Judicial Branch has a website you can use to identify each judicial district and the counties it serves.
The entry-level trial courts in Montana are the district courts. They are courts of general jurisdiction, which means they have the authority to hear a wide range of civil and criminal matters. Family law cases, including divorces, start in the district court. There are 56 district courts in Montana, and they are broken up into 22 judicial districts. Remember: when you're starting your case, it's crucial to file your papers in the correct district court.
The first thing that the petitioner (or co-petitioners) needs to do is locate the correct forms and complete them. The Montana Judicial Branch offers packets of forms for simple divorce cases where there are no disputes and also offers packets for joint dissolutions. See the Montana Judicial Branch Divorce Page: Forms, Statutes, and Suggested Resources. The packets are divided into sets designed for people with children and sets for people without children.
Although this article can only hit the highlights, each packet contains detailed instructions that you must follow exactly. Take your time and work carefully. Type everything on a computer or print neatly. If you rush through the papers and make mistakes, your divorce could be delayed.
Feel free to talk to the court clerks who work in the courthouse, but keep in mind that they can’t give you any legal advice. If you have specific questions, you’ll either need to research the answers or consult with a family lawyer. SeeMontana Law Help (legal aid and free divorce information).
The documents that need to be completed depend on whether you're pursuing divorce by default or a joint dissolution. In either case, the most important document you'll complete is the verified petition for dissolution. A completed petition provides a lot of information about the spouses and their marriage and includes a plea for the court to order certain things, like alimony or child support.
The parties also have to exchange financial disclosures, which reveal their assets, debts, income and expenses. These disclosures have to be made regardless of whether you're pursuing a joint dissolution or a divorce by default.
When the papers have been filled out, the petitioner (in a default divorce) or the co-petitioners (in a joint dissolution) should take them to the courthouse for filing. The clerk of court will charge a filing fee, but if you can't afford to pay, don't worry. You can ask for a fee waiver form, which you will fill out and use to provide the court with financial information. If you meet the income guidelines, a judge will sign an order eliminating all fees for the duration of the case.
The next step is to arrange service in default divorce cases. "Service" is the official means by which you make sure that the other spouse gets a copy of your documents. If you and your spouse have already been talking and reached an agreement, it may seem silly to have to serve the documents, but you must do it.
If you think your spouse will cooperate, ask your spouse to sign an acknowledgement of service. If not, have them served by having a sheriff personally hand over the summons and petition. The sheriff will then give the petitioner written proof of the service, which has to be filed along with the original summons.
There is no service requirement in a joint dissolution.
After 21 days have passed, if there's been no response from the respondent, then the petitioner in a default divorce can ask for a final hearing. By contrast, the co-petitioners in a joint dissolution can get a final hearing date as soon as they file their joint petition with the court clerk—there's no need to wait.
At the final hearing, the petitioner or co-petitioners will give testimony by responding to some very brief questioning from the judge. The respondent can appear, but doesn't have to be there. The judge will sign the final divorce order if it is fair and reasonable and all the rules have been followed. The petitioner is responsible for making sure that the respondent knows what happened and gets a copy of the final order.
Montana Code Annotated, Title 40 (Family Law) (2013)