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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

One of the parties must be a resident or stationed in Montana for 90 days before filing for divorce. Divorce proceedings are handled by the district court in the county where the divorce petition is filed.

LEGAL GROUNDS FOR DIVORCE: Montana is a no-fault divorce state. To grant a divorce, the court must determine a) that the couple have lived separate and apart for a period of more than 180 days filing for divorce; or b) there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage.

LEGAL SEPARATION: If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects. Either party can motion the court to convert the legal separation to a decree of dissolution 6 months after a decree of legal separation has been entered.

MEDIATION OR COUNSELING REQUIREMENTS: The district 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 authority to settle the case at the mediation sessions. The court may not authorize or permit continuation of mediated negotiations if the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party.

PROPERTY DISTRIBUTION: Montana is an equitable distribution state, meaning that the court, without regard to marital misconduct, will try to distribute the marital estate equitably. 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; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation. [Based on Montana Code - Section 40 - Title: 4-202]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Spousal maintenance may be awarded to either spouse only if it finds that the spouse seeking maintenance:

* lacks sufficient property to provide for his reasonable needs; and

* 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 of time 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 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; and

* the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

SPOUSE'S NAME: 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. [Based on Montana Code - Section 40 - Title: 4-108]

CHILD CUSTODY: The court shall determine the parenting plan in accordance with 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 parent or parents and siblings and with any other person who significantly affects the child's best interest;

* 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 (as defined in 53-24-103), 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 is able to pay, which is considered to be not in the child's best interests;

* whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests;

* whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests. In making that determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent's household has been convicted of any of the crimes enumerated in 40-4-219(8)(b).

* adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions. [Based on Montana Code - Section 40 - Title: 4-212]

MONTANA 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 support, without regard to marital misconduct. The court shall consider all relevant factors, including: (a) the financial resources of the child; (b) the financial resources of the parents; (c) the standard of living that the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child and the child's educational and medical needs; (e) the age of the child; (f) the cost of day care for the child; (g) any parenting plan that is ordered or decided upon; and (h) the needs of any person, other than the child, whom either parent is legally obligated to support.

Child support is based on the the uniform child support guidelines. Support orders must include a medical support order, and shall be paid through an income withholding order unless the parent is exempt from such an order (and that exemption is included in the support order). [Based on Montana Code - Section 40 - Titles: 4-204, 5-209]

PREMARITAL AGREEMENT: A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration. Parties to a premarital agreement may contract with respect to:

* the rights and obligations of each of the parties in any of the property of either or both of them, whenever and wherever acquired or located;

* the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

* the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

* the modification or elimination of spousal support;

* the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

* the ownership rights in and disposition of the death benefit from a life insurance policy;

* the choice of law governing the construction of the agreement; and

* any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child support may not be adversely affected by a premarital agreement. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by both parties. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (a) that party did not execute the agreement voluntarily; or (b) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

HOW TO ENFORCE CHILD SUPPORT IN MONTANA – THE 2008 FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have decided to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful and methodical considerations you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF MONTANA:

http://data.opi.state.mt.us/bills/mca_toc/40_4.htm