If you and your spouse can cooperate, negotiate, and resolve your issues, 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 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, the court will consider your divorce "contested," and you will have to go to trial.
There are two kinds of uncontested divorce in Montana: divorce by default and joint dissolution (divorce):
In a divorce by default . . .
The "respondent" (the spouse who received the petition for divorce, which is the document that starts the divorce process) declines or fails to submit an answer or any other paperwork in response to the petition within 20 days of receiving the divorce papers. A failure to respond means that the filing spouse can request a hearing without the other spouse's permission.
Then the court schedules a final hearing, and, as long as the petitioner's requests are fair, a judge will sign the final order. The default divorce process 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.
In a joint dissolution . . .
The court considers both spouses to be co-petitioners if the couple reaches an agreement about all divorce-related issues in the case before they begin. Both spouses must work together to prepare the petition and all divorce-related paperwork. The joint dissolution process is even simpler and quicker than divorce by default.
Before you file for divorce (any type) in Montana, there are a couple of preliminary rules that you must satisfy.
First, you must have been a resident of the state for at least 90 days before filing the divorce papers. Also, 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 for a divorce. (Mont. Code Ann. § 40-4-104 (a).)
Second, you have to give the court a "ground," or legal reason, for the divorce. Irretrievable breakdown of the marriage is the only ground the courts recognize in Montana, and it means that the marriage has broken down so badly that you can't repair it. (Mont. Code Ann. § 40-4-104 (b).) This type of "no-fault" divorce is the state's way of allowing couples to end their marriage without blaming each other for the breakup.
You can show that there's been an irretrievable breakdown of your marriage in one of two ways:
The first step in getting a dissolution (divorce) in Montana is to file the required paperwork in your local courthouse. You're responsible for knowing where to file your papers—if you file in the wrong location, the court can toss out or transfer your case, 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.
Completing the correct paperwork
The first thing that the petitioner (or co-petitioners) needs to do is to 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 website divides the form packets 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, the court could delay your divorce.
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. See Montana Law Help (legal aid and free divorce information).
The documents that you need to complete 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. (Mont. Code Ann. § 4-40-105.)
The parties also have to exchange financial disclosures, which reveal their assets, debts, income, and expenses. Both spouses must complete the financial disclosure forms, regardless of whether you're pursuing a joint dissolution or a divorce by default.
Filing and service
When you've completed your paperwork, the petitioner (in a default divorce) or the co-petitioners (in a joint dissolution) should bring them to the courthouse for filing. The clerk of the court will charge a filing fee. If you can't afford to pay, 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 acknowledgment of service. If not, have a sheriff personally hand over the summons and petition to your spouse. The sheriff will then give the petitioner written proof of the service, which you must file along with the original summons.
There is no service requirement in a joint dissolution.
The final divorce hearing
20 days after you file for dissolution, if there's been no response from the respondent or if you filed a joint request, then the court can hold a final hearing. In a default request, only the petitioner needs to attend the hearing. However, in a joint request, both spouses must attend the hearing. (Mont. Code Ann. § 40-4-133.)
At the final hearing, the petitioner or co-petitioners will give testimony by responding to some very brief questioning from the judge. The judge will sign the final divorce order if it is fair and reasonable and if it meets all the state's divorce requirements.
Montana Code Annotated, Title 40 (Family Law) (2019)