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Henry Dahut, J.D.
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Montana Divorce & Family Law Summary
Introduction
In Montana, the legal term used for divorce is dissolution. While going through the divorce can be an overwhelming experience full of stress and anxiety, especially if you have children together, there is help to guide you through the process.
Even though Montana is a “no-fault” state, the divorce process is full of challenges and legal complexity.
This summary is a good starting point to help you get informed on Montan’s laws and legal process. However, it should not be considered a substitute for obtaining local legal counsel from an experienced divorce attorney.
This article will cover the following Montana divorce law topics:
- Residency Requirements
- Legal Grounds for Divorce
- Legal Separation
- Mediation
- Property Division
- Spousal Maintenance
- Child Custody
- Child Support
- Name Change
Residency Requirement
To obtain a divorce in Montana, at least one spouse must be a state resident for at least 90 days before filing the petition for dissolution of marriage. However, simply being physically present in Montana for 90 days is not sufficient. You must be able to demonstrate an intent to remain in Montana indefinitely. This can be evidenced by things like obtaining a Montana driver’s license, registering to vote, or establishing a permanent residence.
Legal Grounds for Divorce
Montana is a “no-fault” divorce state. This means that you don’t have to prove one spouse was at fault for the breakdown of the marriage. The only ground for divorce in Montana is that the marriage is “irretrievably broken,” meaning the relationship is beyond repair.
Legal Separation
In Montana, couples can choose to live separately without having to be legally declared separated by the court. However, this doesn’t change their legal marital status. They remain married, and if they reconcile, no legal action is needed.
Any agreements made during this separation (regarding finances, property, or child custody) aren’t legally enforceable unless they are put in writing and signed by both parties.
A separate maintenance action is initiated through a petition to the court, similar to a divorce petition. To obtain a separate maintenance order, one spouse must demonstrate that the couple is living separately without cohabitation and that there is a reasonable expectation of reconciliation. If the couple reconciles, the separate maintenance order can be dissolved. If reconciliation doesn’t occur, either party can later file for divorce, and the separate maintenance order can be incorporated into the final divorce decree.
Mediation
In Montana, the court may at any time consider the advisability of requiring the parties to participate in the mediation of the case. Any party may request the court to order mediation. If the parties agree to mediation, the court may require the attendance of the parties or the representatives of the parties with the authority to settle the case at the mediation sessions.
Property Division
Montana is an equitable distribution state, meaning that the court will try to distribute the marital estate equitably without regard to marital misconduct. The court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions and whether the apportionment is instead of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income.
Spousal Maintenance
In Montana, Spousal maintenance may be awarded to either spouse only if it finds that the spouse seeking care:
- Lacks sufficient property to provide for his reasonable needs
- Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home
- The maintenance order shall be in such amounts and for such periods as the court deems just, without regard to marital misconduct, and after considering all relevant facts including
- The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for the support of a child living with the party includes a sum for that party as custodian
- The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment
- The standard of living established during the marriage
- The duration of the marriage
- The age and the physical and emotional condition of the spouse seeking maintenance
- The spouse’s ability from whom maintenance is sought to meet his needs while meeting those seeking care
Child Custody
The court in Montana shall determine the parenting plan in the best interest of the child. The court shall consider all relevant parenting factors, which may include but are not limited to:
- The wishes of the child’s parent or parents
- The wishes of the child
- The interaction and interrelationship of the child with the child’s parents-siblings;
- The child’s adjustment to home, school, and community
- The mental and physical health of all individuals involved
- Physical abuse or threat of physical abuse by one parent against the other parent or the child
- Chemical dependency or chemical abuse on the part of either parent
- Continuity and stability of care
- Developmental needs of the child
- Whether a parent has knowingly failed to pay birth-related costs that the parent can pay, which is considered to be not in the child’s best interests
- Whether a parent has knowingly failed to financially support the child
- Whether the child has frequent and continuing contact with both parents
Child Support
In determining child support, the court shall order either or both parents to pay an amount reasonable or necessary for the child’s license without regard to marital misconduct.
The court shall consider all relevant factors, including:
- The financial resources of the child
- The financial resources of the parents
- The standard of living that the child would have enjoyed had the marriage not been dissolved
- The physical and emotional condition of the child and the child’s educational and medical needs
- The age of the child
- The cost of daycare for the child
- Any parenting plan that is ordered or decided upon
- The needs of any person, other than the child, whom either parent is legally obligated to support
Spouses Legal Name
In Montana, if requested by a wife whose marriage is dissolved or declared invalid, the court shall order the wife’s maiden name or a former name restored.
Watch Montana Divorce Attorney Brian Miller Discuss The Divorce Process:
Sources and References
Montana Judicial Branch – Divorce
Cornell Law Institute – Divorce
