How to File a Divorce in Montana
How to File a Divorce in Montana
A divorce is called a dissolution of marriage in Montana. For any married couple, this will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of them will be unable to be self-supporting after the divorce, the issue of alimony may arise. If there are minor children, they will also need to resolve the issues of child custody and support.
Residency and Where to File
To file for dissolution in Montana, either you or your spouse must be domiciled in Montana, and in the county, for at least 90 days. Montana and the county must be your primary place of residence. You may be a part-time resident of more than one state, but may only have one domicile. Typically, your domicile is the state where you have your driver’s license, where your car is registered, and where you are registered to vote. You will file in the District Court in the county where either you or your spouse have been domiciled for the required 90-day period.
The simplest dissolution procedure in Montana is called a summary procedure, which may be used if all of the following conditions are met:
- both parties agree and desire that the marriage should be dissolved by the court,
- the wife is not pregnant; and there are no children, or the parties have agreed upon a parenting plan and child support and medical support have been determined,
- neither party has any interest in real property, except for a lease of a residence that doesn’t include an option to purchase and that ends within 1 year of the date of filing,
- there are no unpaid, unsecured obligations in excess of $8,000 incurred by either or both of the parties after the date of their marriage,
- the total market value of assets, excluding secured obligations, is less than $25,000,
- the parties have signed an agreement for dividing of assets and debts, and executed any documents necessary to transfer title and otherwise effectuate the agreement,
- the parties waive any right to maintenance (alimony),
- the parties waive their rights to appeal and their rights to move for a new trial, and
- the parties have read and state that they understand the contents of the summary dissolution brochure available from the court.
Even if you don’t meet the requirements for the summary procedure, if you and your spouse are in agreement on all matters, you may file an uncontested divorce using the standard procedure. For either procedure, you would begin by filing a Petition for Dissolution of Marriage, along with various other supporting documents. One of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding the custody and support of any children. Copies of these documents are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Dissolution of Marriage.
Grounds for Dissolution
Grounds for dissolution are legally recognized reasons to get a dissolution. Montana, like most states, has no-fault grounds for dissolution. Unlike most states, there are no fault-based grounds. You need to state in the Petition that either “the marriage is irretrievably broken, and there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage,” or “the marriage is irretrievably broken, and the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding.”
Montana dissolution law provides that all property is marital property, regardless of how or when it was acquired. In dividing property the judge must consider the following factors:
- the duration of the marriage, and any prior marriage of either party,
- each party’s age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs,
- the child custody provisions,
- whether the apportionment is in lieu of, or in addition to, maintenance (alimony),
- the opportunity of each party for future acquisition of capital assets and income, and
- the contribution to, or dissipation of value of, the respective estates of the parties; and the contribution of a party as a homemaker or to the family unit.
For property acquired prior to the marriage, after a legal separation, by gift or inheritance, in exchange for such property, or by an increase in value of such property, the court will consider any nonmonetary contribution of a homemaker, the extent such contributions helped maintain the property, and whether the property division is an alternative to maintenance (alimony).
Alimony in Montana
Alimony is called to maintenance in Montana. Maintenance may only be awarded if the party seeking maintenance (1) lacks sufficient property to provide for his or her reasonable needs; and (2) is unable to be self-supporting through appropriate employment, or should not be required to seek outside employment due to the circumstances of a child in his or her custody. The amount and duration of maintenance is determined, without regard to marital misconduct, after the following factors are considered:
- the financial resources of the party seeking maintenance, including marital property awarded, and the ability to meet his or her needs independently, including the extent to which a provision for child support 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 physical and emotional condition of the party seeking maintenance; and
- the ability of the paying party to meet his or her own needs while paying maintenance.
Child Custody in Montana
If you and your spouse have any minor children, there will have to be a custody determination. It basically comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made, and putting it all into what is called a parenting plan.
If you and your spouse reach an agreement, your parenting plan will be accepted by the judge unless it is not in the child’s best interest. If you cannot reach a custody agreement, the judge will decide the issue, after considering all relevant factors, including:
- the wishes of the parties and the child,
- the relationship between the child and the parties, siblings, and significant persons,
- the child’s adjustment to home, school, and community,
- the mental and physical health of all individuals involved,
- any physical abuse, or threat of physical abuse, against the other party or the child,
- any chemical (drug) dependency or abuse on the part of either party,
- the continuity and stability of care,
- the developmental needs of the child,
- whether a party who is able to pay has knowingly failed to pay birth-related costs, or failed to financially support a child,
- whether the child has frequent and continuing contact with both parties, and
- evidence of physical abuse or threat of physical abuse by one party against the other or the child, including whether a party or other person residing in a party’s household has been convicted of certain violent crimes or sex crimes.
Child Support in Montana
Child support is determined by reference to the Montana Child Support Guidelines. The guidelines, and worksheets, may be found at the Montana Department of Public Health and Human Services website.
A decree may not be entered until at least 20 days after the Petition is served. A wife’s maiden or former name may be restored.
LegalZoom’s Online Divorce Service is an inexpensive way to file for divorce if you and your spouse agree on most major issues. Otherwise, you can talk to an attorney for advice or help filing for divorce through the LegalZoom personal legal plan.