Filing for Divorce in Montana

Filing for Divorce in Montana

Getting a Divorce in Montana? Divorce Law Cheat Sheet for the State of Montana

1. What are the residency requirements for filing for divorce in Montana?

You or your spouse must have had a residence in Montana or been stationed with the armed services in the state for at least 90 days before filing.

2. Does Montana have a waiting period?

No, there is no waiting period in Montana unless one of you denies that your marriage is irretrievably broken (see below).

3. Does the state have grounds for divorce?

In Montana, the court must find that your marriage is irretrievably broken, meaning there is no reasonable hope of reconciliation. As evidence of this, you and your spouse must have lived separately for more than 180 days or show that there is serious disagreement that affects you or your spouse’s attitude toward your marriage.

If one of you denies that your marriage is irretrievably broken, the court may postpone your hearing for 30 to 60 days and suggest that you seek counseling.

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If you both agree that your marriage is irretrievably broken, and you’ve met the conditions above, you may seek a summary dissolution of your marriage (meaning a simpler, faster divorce proceeding). You may be eligible if you meet these additional conditions:

  • You are not pregnant.
  • You have agreed on a parenting plan for any children you do have.
  • The court has addressed child and medical support.
  • Neither of you has any real property.
  • Neither of you has any unsecured debt greater than $8,000 incurred.
  • After your marriage the total fair market value of your assets is less than $25,000.
  • You have agreed on how to divide your assets and debts.
  • You both waive maintenance (alimony).
  • You both have read and understand the court’s summary dissolution brochure.
  • You both want the court to grant you a divorce.

4. How does Montana determine the division of property?

You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you.

The court will look at all of the property owned by you and your spouse, regardless of how and when it was acquired or whose name is on the title. It will divide your property in whatever way it decides is most fair. Any marital misconduct will not be a part of the court’s decision here.

In deciding how to divvy things up, the court will take into consideration:

  • How long you were married.
  • Whether either of you was married previously.
  • You and your spouse’s ages and health.
  • You and your spouse’s lifestyles and occupations.
  • You and your spouse’s amounts and sources of income.
  • You and your spouse’s skills and employability.
  • You and your spouse’s estates, debts and needs.
  • Anything awarded to either of you related to child custody.
  • Whether property is being awarded in addition to or instead of alimony.
  • You and your spouse’s future opportunities to acquire assets or earn income.
  • How you or your spouse added to or used your property while you were married.
  • Any contributions by one of you as a homemaker.

Certain property is handled differently. Property that you acquired before you were married; property that you acquired by gift or inheritance; property received in exchange for property that you acquired by gift or inheritance; any increase in the value of property that you acquired before you were married; or property that you acquired after you were legally separated is divided in light of the contributions of your spouse toward that property, including:

  • Non-monetary contributions as a homemaker.
  • The extent to which any contributions from your spouse have helped to maintain this property.
  • Whether this property is being awarded instead of alimony.

The court also may set aside part of your property in a separate fund or trust for the support, education and care of your children.

5. Does Montana require mediation before a divorce is granted?

Mediation is not always required, though the court may order it in your case to settle any disputes.

6. How does the state determine child custody?

Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in and other biggies. Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.

You and your spouse are required to submit a parenting plan to the court, whether jointly or separately. It must address how each of you will:

  • Maintain a loving, stable, consistent and nurturing relationship with your child.
  • Meet your child’s everyday needs for food, physical care, supervision, spiritual growth, health care, day care and any other activities appropriate for his or her development.
  • Provide an education for your child.
  • Ensure an ongoing relationship between your child and each of you, his or her siblings and anyone else significant to your child’s best interest.
  • Exercise good judgment regarding your child’s well-being, appropriate for your child’s developmental level and your family’s social and economic circumstances.

Your parenting plan must specifically discuss (at a minimum):

  • The designation of one of you as custodian of your child (but only for the purposes of all state and federal statutes that require a designation of custody; this designation may not affect you or your spouse’s rights and responsibilities under your parenting plan).
  • The designation of the legal residence of you, your spouse and your child.
  • A schedule specifying when your child will live with each of you, including how you will handle holidays, birthdays of family members, vacations and other special occasions.
  • Finances for your child’s needs.
  • Any other factors affecting the physical and emotional health and well-being of your child.
  • A periodic review of your parenting plan when either of you or your child requests it or when circumstances trigger a need for review.
  • Sanctions if one of you fails to follow the terms of your parenting plan, including contempt of court.
  • An allocation of parental authority regarding your child’s education, spiritual development, health care and physical growth.
  • The way you and your spouse will resolve future disputes (other than court action).
  • The way you and your spouse will help your child have a meaningful, ongoing relationship with each of you.

The court may order you and your spouse to attend classes regarding the effects of divorce on your child.The court will evaluate your parenting plan or establish one based on the best interest of your child. To determine just what that is, the court will look at:

  • You and your spouse’s wishes.
  • Your child’s wishes.
  • Your child’s relationship with each of you, his or her siblings and anyone else who significantly affects his or her best interests.
  • Your child’s adjustment to his or her home, school and community.
  • The mental and physical health of everyone involved.
  • Any physical abuse or threat of physical abuse by one of you against the other or your child.
  • Addiction or drug abuse by you or your spouse.
  • The continuity and stability of care you each can offer your child.
  • Your child’s developmental needs.
  • Whether one of you has knowingly failed to pay birth-related costs that you can afford.
  • Whether one of you has knowingly failed to financially support your child even though you can afford to whether your child has frequent and continuing contact with both of you (unless it would not be in your child’s best interest because of physical abuse, the threat of abuse or other circumstances).
  • The effects on your child of constant and contentious changes to your parenting plan.

The court also may interview your child or conduct an investigation of your circumstances to decide what is in his or her best interest.

7. How does the state calculate child support?

Child support in Montana is calculated using state guidelines. You and your spouse’s incomes are combined to determine the level of support, and you each are responsible for the percentage that corresponds to your individual incomes.

Work-related child care costs, health insurance costs and costs for the other needs of your child (including other health costs) are added to the basic child support amount.

This primary child support allowance is a standard amount to be applied toward your child’s food, shelter, clothing and related needs. The number of children you and your spouse have and a standard of living allowance are factored in. A long distance parenting adjustment is allowed when travel by you, your spouse or your child exceeds 2,000 miles in a calendar year.

If your child spends 110 days or less with one of you, all of that parent’s obligation is due and payable to the other parent. If your child spends more than 110 days with both parents, the portion of the obligation due and payable from one parent to the other will be adjusted.Each child support order also must include a medical support order.

After completing these calculations, the court will look at the result to be sure it is fair and in your child’s best interest. The court will weigh:

  • Your child’s financial resources.
  • You and your spouse’s financial resources.
  • The standard of living your child would have had if you had remained married.
  • Your child’s physical and emotional condition and his or her educational and medical needs.
  • Your child’s age.
  • The cost of day care for your child.
  • Your parenting plan.
  • Any support that you and your spouse are legally obligated to provide for anyone else.

8. How does the state determine and calculate alimony?

Alimony, also known as maintenance, is not a standard part of a divorce, but either you or your spouse may request it. In deciding whether to award alimony, the court must find that you lack sufficient property to meet your reasonable needs and that you are unable to support yourself through appropriate work or that you shouldn’t be expected to work outside the home because you’re taking care of a child who needs you at home. Any marital misconduct is not a factor in deciding whether to order maintenance.

If the court decides to award maintenance, it will take these factors into account in deciding how much and for how long:

  • Your financial resources, including any property you were awarded when the court divided your property.
  • Your ability to meet your needs independently and whether child support includes an amount for you as custodian.
  • How long it would take you to get the education or training necessary to find a job.
  • Your standard of living while you were married.
  • How long you were married.
  • Your age and physical and emotional condition.
  • Your spouse’s ability to meet his or her own needs while paying alimony to you.

9. Is there a waiting period before remarriage in Montana?

No, you are free to remarry after the court delivers the final judgment ending your marriage. An appeal that doesn’t challenge the finding that your marriage is irretrievably broken doesn’t delay the finality of your divorce.

FOR MORE INFORMATION:

Montana’s state statutes are online here.

You can find worksheets and other information about Montana’s child support guidelines online here.

The State Law Library of Montana provides other divorce forms online here.

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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