You'll find answers to common questions about getting a divorce in Montana below. For more information on family law in Montana, see our Montana Divorce and Family Law page.
For all of our articles on dividing property when a couple splits up, see our Divorce and Property area.
Montana has a no-fault divorce law. To grant a divorce, the court must determine either that:
The legal term for divorce in Montana is "dissolution of marriage." While divorce ends the marriage, however, the couple may have ongoing legal arrangements regarding custody, child support, and maintenance.
If one spouse wants a divorce in Montana, there's nothing the other spouse can do to prevent it.
If a couple is legally separated, they live separately but remain legally married. The spouses' rights and duties to each other are determined in a decree of legal separation. The legal procedures are almost identical to those for divorce. Once legally separated for six months, either party may ask the court to convert the legal separation to a dissolution of the marriage.
A lawyer will assist you in identifying the issues in your case. A lawyer will also help you negotiate a fair settlement to avoid a trial. The lawyer will give you up-to-date advice regarding the laws on custody, spousal and child support, and property division. The lawyer will counsel you regarding the reasonableness of proposed settlement terms and what you might expect if the judge decides the case. If a settlement is reached before trial, one of the spouses must still appear in court and present brief testimony to finalize the divorce, which you lawyer can do. If settlement is not reached, the lawyer will prepare your case for trial and represent you in the courtroom. A lawyer will properly prepare all paperwork in connection with your divorce.
No. There are conflicts of interest between spouses at the time of a dissolution. A lawyer should represent only one or the other, but not both.
Ask your lawyer about fees and costs during your first meeting. How much a lawyer charges will depend on how complex your case is and how many court appearances will be required. Cases that require hearings, trials or appeal are more expensive. Your lawyer will charge you for his or her hourly time, plus costs. Hourly rates may vary, depending on the skill and experience of the attorney. Costs for divorce are in addition to fees. You'll have to pay a fee to file the divorce petition, as well as a fee to finalize the divorce. There are additional costs for service of process, expert witnesses, appraisals, certified copies, depositions, and other items.
Most divorcing couples resolve their differences and reduce their agreements to writing with the assistance of lawyers. Any issues they cannot resolve are decided through mediation or by a judge. There are no juries in divorce cases.
You have the final decision about settlement terms. Your lawyer is required to submit all settlement proposals to you for your review.
A Separation Agreement is a document that sets out the terms the couple has agreed to prior to a divorce. It is considered to be a binding contract. Once it is approved by a judge, it can only be modified under certain circumstances. It contains provisions for division of property and debts, maintenance, child support, and parenting.
In Montana, spousal support is called maintenance. (In the past, it was called alimony.) A court may award maintenance only if the spouse seeking maintenance:
If a court decides to award maintenance, it may set a duration and amount for the award that it considers just, in light of all the circumstances, including:
Montana law recognizes that spouses who work as homemakers and spouses who work outside the home both contribute to the property acquired during the marriage. Property is to be divided equitably between the parties upon divorce. An equitable distribution is not always a 50/50 distribution. Several factors, including the length of the marriage, skills and relative abilities of the parties, age and health of the spouses, needs and opportunities to acquire future assets, and other criteria are considered. The court can apportion all property owned by either or both spouses, regardless of how title is held and when or how it was acquired. The court will not consider marital misconduct in dividing property. If the parties divide their property by agreement, the judge will review the agreement.
If the parties cannot divide their debts by agreement, the court will. However, the parties' agreement or the court's decree allocating joint debts is not binding on a creditor, unless the creditor agrees. If a spouse fails to pay, a creditor may sue the other spouse. The spouse who pays the creditor must seek reimbursement from the spouse who was supposed to pay the joint debt.
Divorcing parents must file a parenting plan with the court. If parents cannot decide how to resolve a specific issue, the court will make a determination based on the child's "best interests." For more information, see Child Custody in Montana: The Best Interests of the Child.
Montana has guidelines to determine child support based upon the total income of both parents. Daycare, insurance, and medical costs are included in the computation. The guidelines allocate the amounts to be paid by each parent, taking into account financial resources of the parents and children, the children's needs, and the standard of living the children would have enjoyed had the parents stayed married. To learn more, see the Montana Child Support Guidelines.
Montana law requires that all divorce decrees address health insurance coverage for the children.
If your move will significantly affect the child's contact with his or her other parent, you must give the other parent thirty (30) days written notice of your intended residential change. The notice must include a revised residential schedule for the child.
Mediation is a voluntary process divorcing spouses can use to find common ground to resolve their differences. A neutral third party works with the spouses to assist in the discussion. Lawyers may or may not be present. Mediation can occur at any time in the divorce process. Mediation has several advantages. It is less expensive than a trial, and it can occur at any time. Solutions are created by the spouses (rather than the judge), and therefore they have a higher chance of success. The court may require that parents participate in mediation to resolve disputes that arise under parenting plans.