Montana Family Laws and Divorce Resource
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Montana have the authority to manage the divorce proceedings, including, spousal and child support payments, custodial rights of parents and the division of community property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making any important decisions about your marriage. You can also visit the GotTrouble Divorce Resource for a more in-depth understanding of related divorce and family law topics.
As of 2016, all states allow for “no fault” divorce. Yet many courts still factor in the respective parties past behavior when determining the division of community property, debts, custody, support and related issues.
SAME-SEX DIVORCE –UPDATE:
On June 26, 2015, the US Supreme Court ruled that gay marriage is a right protected by the US Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: US Supreme Court Opinion: Obergefell v. Hodges. (For more information visit ProCon.org).
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 has 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.
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.
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 and 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.
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 LEGAL 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.
CHILD CUSTODY – BEST INTERESTS OF THE CHILD
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 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 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 child;
- Whether the child has frequent and continuing contact with both parents.
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.
NOTE: 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.
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 CAN NOT ADVERSLEY IMPACTED
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:
- That party did not execute the agreement voluntarily; or
- The agreement was unconscionable when it was executed and, before execution of the agreement, that party:was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- 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
- Did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.
ENFORCING CHILD SUPPORT ORDERS – FEDERAL OPTION:
FIND LOCAL FEDERAL ENFORCEMENT AGENCY NEAR YOU