Unless you are well versed, divorce laws can be confusing and intimidating. But if you’re going through a divorce in Montana, even if you hire an attorney, you still need to know about the basic laws that will affect your case.
Here are some of the key provisions in Montana that you should understand before you move forward with your case.
- What are the Basic Laws Regarding Divorce in Montana?
- How is the Division of Property Handled?
- Dividing Retirement Plans and Pensions
- What Happens to Gifts and Inheritances?
- How is Alimony (Maintenance) Decided in a Montana Divorce?
- What to Know About Child Support
- How is Child Custody Determined?
- Montana Divorce Law FAQs
What are the Basic Divorce Laws in Montana?
The legal term for a divorce lawsuit in Montana is a Dissolution Proceeding. The marriage ends after all issues have been decided and the Court issues a Final Decree of Dissolution.
Montana allows for no-fault based divorces. You can simply cite an irretrievable breakdown in the marriage to request a divorce. No other reasons are necessary. You must also have lived separate and apart for 180 days or more before you file.
You do not have to show one spouse is at fault for the breakdown of the marriage or that there has been any marital misconduct.
One party will often file a motion during a divorce to ask for a decision that will be in force while a divorce is in progress. Temporary orders may deal with spousal maintenance, temporary child support, or other financial issues.
Substance abuse and domestic violence can’t be cited as official reasons for divorce, but they can influence child custody and visitation privileges.
Before you can file, you must meet residency requirements to ensure Montana courts have jurisdiction. At least one spouse must have lived in the state for a minimum of 90 days before filing a petition. If there are children under 18 involved, they must have lived in the state for at least six months.
As an equitable distribution state, marital assets are divided fairly and equitably, but not always equally. Courts will consider several factors before dividing assets. These can include the age, occupation, and earning capacity for each spouse, among many others.
When you file for a divorce, the Clerk of Court will automatically put in a Temporary Economic Restraining Order preventing either spouse from getting rid of their property, “except in the usual course of business or for the necessities of life” or to pay attorney’s fees. Both spouses may not change the beneficiaries of their insurance coverage while the action is pending.
Alimony can be granted, but courts have more leverage in deciding how much it should be and for how long.
How is the Division of Property Handled?
Montana is an equitable distribution state. This means the marital property will be divided fairly and equitably but it does not mean that property will be split on a 50/50 basis.
Courts must first determine which property is separate and which property is a marital asset. Generally, any property acquired during the marriage is a marital asset. Gifts to one spouse, inheritances, and property deemed separate in any prenuptial agreement will not be included unless a spouse has commingled the property.
When spouses can’t agree on how property will be divided, Montana courts will use a list of factors to establish which spouse should get certain assets.
Courts take into account the age, health, and occupation of each spouse. They also look at amounts and sources of income, earning capacity, employability, skills, and liabilities of each spouse.
Non-monetary contributions are also considered, such as when one spouse stays home to take care of children and providing career support to their spouse.
Some provisions may be made to supplement or offset alimony awards. In addition, courts can use economic misconduct as a factor in cases where one spouse fraudulently spent marital assets.
The spouse who receives full custody of children could also see a bigger bump in the amount of assets they receive, or be awarded a specific asset, such as the family house.
A Montana property division order is a legal and binding document. When one spouse fails to comply with the terms, he or she can be charged with contempt of court and forced to comply.
A judge may also set aside part of your property in a separate fund or trust for your children’s support, education, and care.
Dividing Retirement Plans and Pensions
In Montana, pensions are marital property.
Before each pension can be divided, it must be properly valued. Often, that requires assistance from a certified divorce financial planner, an accountant or other financial professional to make a determination.
In many cases, spouses will trade assets, giving up interest in one asset for a higher share in another. For example, one spouse may want the family home and would be willing to give up his or her share of a pension in return.
After pensions have been valued and will be divided between spouses, each retirement account must be split by implementing a qualified domestic relations order, often known as a QDRO.
The QDRO details how funds will be split and is submitted to the retirement plan and a judge for approval. When it is executed, a spouse is made an alternate payee.
QDROs can be drafted by an attorney or a licensed firm, and can even be done online. Resources such as QDRO Counsel (our favorite online QDRO drafting service) can make this process easy and inexpensive.
Read: How to Split an IRA in Divorce
How is the division of bank accounts handled?
Any bank accounts with assets that were acquired during the course of the marriage are considered marital property in Montana. You must divide this asset like any other…fairly and equitably.
When you inherit money and you place it in a separate account, those funds remain separate. However, if you place inheritances or gifts into accounts jointly owned by both spouses, those assets may become marital property and will subject to equitable distribution.
How are debts divided?
When you are drafting a Petition for Dissolution, you need to designate who is responsible for the debts of the marriage.
Typically, only the spouse who incurred a debt before marriage or after the date of separation is responsible for that portion of the debt.
Any debt acquired when a couple is married typically is the responsibility of both parties.
While you may reach an agreement with a spouse about who must take care of each debt, it’s good to know that creditors are not bound by this agreement. If your name is on the debt, you are equally responsible, no matter what settlement agreement you make.
What Happens to Your Inheritance?
In Montana, inheritance, and gifts or property received in exchange for property that you acquired by gift or inheritance is treated a bit differently than other assets.
The court must divide this property based on contributions your spouse made as it relates to the asset, 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.
How is Alimony (Maintenance) Decided in a Montana Divorce?
Maintenance is not automatically awarded in a Montana divorce. A judge will weigh several factors before deciding the amount and duration of an award (if any).
Those factors include:
- 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.
A judge must determine that you don’t have the means to reasonably support yourself through appropriate work or that you are not able to support yourself because you’re taking care of one or more children who need you at home.
What to Know About Child Support
Montana uses the Income Shares Model guidelines for determining how much child support each parent may owe. You and your spouse’s incomes are combined to determine a basic level of support.
Childcare, health insurance, and other basic costs are also factored into the basic amount which is applied toward food, clothing, and shelter expenses.
The number of children you and your spouse have and a standard of living allowance are factored included in the determination as well.
If your child spends 110 days or less with one of you, all of that parent’s child support obligation is payable to the other parent. If your child spends more than 110 days with both parents, the portion of child support payable from one parent to the other will be adjusted.
Once these things are factored in, the court will then consider if the amount is fair by also looking at
- 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.
- Your parenting plan.
- Any support that you and your spouse are legally obligated to provide for anyone else.
You can estimate child support costs by accessing the Montana Online Child Support Calculator.
Read: The Ultimate Guide to Child Support
How is Child Custody Determined?
If you and your spouse have minor children, custody will need to be determined as part of your divorce. To do this, you and your spouse must submit a parenting plan to the court. You can do this jointly or separately.
You will also need to try and work out legal custody and physical custody issues
Physical custody where a child lives and with which parent.
Legal custody defines which parent is responsible for making the major decisions in a child’s life, such as medical decisions, church and school attendance, and other important issues.
In many cases, both of these are determined on a joint basis and can be decided in several possible ways. For example, physical custody can be given to one parent, and legal custody can be shared. If physical custody is given to one parent only, the other parent usually has visitation rights and pays child support.
When parents can’t agree on custody issues, the courts will make the decision for them, based on the best interests of the children.
Parenting plans must address how each parent 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, daycare, 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.
Parenting plans must be very specific when it comes to schedules, decision-making authority, where a child legally lives, finances and support, physical and emotional support issues, sanctions if either parent does not follow the plan, ways to resolve parenting disputes, and healthcare, spiritual and social growth of your child, among others.
When deciding whether or not to approve a parenting plan, courts must consider:
- 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.
In cases where drug abuse or domestic violence is present, custody or visitation may be supervised or completely denied. The court will also consider whether one parent has been convicted of:
- Murder
- Sexual assault or rape
- Child endangerment
- Partner or family member assault
- Sexual abuse of children
- Strangulation of a partner or family member
The court may consider convictions for other crimes when deciding whether to limit contact.
What role does substance abuse play in determining child custody?
Montana is a no-fault state, so substance abuse can’t be cited as a reason for divorce. However, it can be used to assist in determining child custody.
Because custody is always determined with the child’s best interests placed first, if there is a demonstrated danger based on substance abuse, this may limit custody or visitation rights. In some cases, the court may deny privileges completely.
Those privileges may be restored based on completing rehabilitation and proving sobriety to the court.
Also, if a parent begins to abuse drugs or alcohol after a divorce is finalized, then the other parent can seek a modification of current custody and visitation orders to protect the child.
What role does domestic violence play in a Montana divorce?
Domestic violence can take many forms including physical, mental, and emotional abuse that might include threats, psychological abuse, or malicious property damage. It can be perpetrated on any family member, not just a spouse.
If you are experiencing domestic violence, above all else, you must do is protect your safety and the safety of anyone else being threatened. Call 911 if needed and vacate your premises immediately.
You can seek an Order of Protection (temporary restraining order) to protect yourself, allowing you to focus more energies on your divorce.
While domestic violence can be directly cited as a reason for divorce in Montana, it will have an impact on child custody and visitation issues. Under all circumstances, the court’s first priority is for the safety of all family members.
When that can’t be assured, the court may restrict or completely deny custody and visitation privileges. In some cases, supervised visitation may be required. means that another adult must be present to monitor the interaction.
Another adult must be present to monitor the visit and may be a friend, family member, therapist, or a professional provided by a facility that specializes in high-conflict custody cases.
Read: Divorcing an Abusive Spouse: What to Do When Domestic Violence is Part of the Equation
Montana Divorce FAQs
How does infidelity affect divorce in Montana?
Montana is a no-fault state and adultery cannot be used as a reason to get a divorce. It generally does not affect property division or child custody and visitation issues either.
What is a bifurcation of marital status?
In rare cases, a judge will allow a couple to divide divorce into two separate legal actions in what is known as bifurcation.
This may be done to avoid prejudice or for court convenience. According to Montana statutes, “the decision whether to bifurcate claims pursuant to this rule is a matter left to the broad discretion of the district court.”
Bifurcation and may be employed when most issues can be resolved, but a few issues could take a long time to adjudicate. Judges will retain jurisdiction over the divorce with the understanding that remaining issues must be worked out at a later date.
Montana judges are very reluctant to grant bifurcated divorces because of judicial inefficiencies and because there is less incentive to finalize a divorce.
What are the requirements for financial disclosure?
In Montana, both spouses are required to file Financial Affidavits to disclose assets, income, debts, and other obligations.
This information is used to determine child support and a division of assets during a divorce. You must sign the document in front of a Notary to swear the information is accurate, and you’ll need to supply supporting documentation.
By law, you must disclose all your assets, income, debts, and other financial obligations to your spouse and the court so that a fair division of assets can take place.
What happens with health insurance during and after divorce?
All child support orders in Montana must contain a provision for health insurance for minor children. The general rule is that a parent who has medical insurance through their employer is responsible for coverage.
If both parents have coverage, then both parents may provide coverage. In some cases, a judge will order both parents to pay premiums and other associated costs based on child support guidelines.
For spouses, group insurers won’t allow one spouse to carry an ex-spouse after a divorce.
The ex-spouse who is not covered will need to find insurance through other means, possibly through COBRA or in the insurance marketplace.
Read: A Guide to Health Insurance During and After Divorce
Are there any special considerations for military divorces in Montana?
If you or your spouse are in the military and are either stationed or live in Montana, some parts of your divorce are the same as a civilian divorce, but other parts are protected by federal statutes.
The grounds for divorce are the same in Montana. You only need to cite irreconcilable differences to file for divorce.
Child custody and visitation issues can be more complicated due to relocation or deployment orders. Child support is determined the same way as it is for civilian cases, using the Income Shares Model.
However, combined child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances.
Under the Service Members’ Civil Relief Act (SSCRA), and the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982, active-duty members are afforded certain protections.
For example, under SSCRA, a military spouse can request a delay in divorce proceedings so that his or her military duties are not impacted. Legal action can be delayed when he or she is on active duty plus 60 days beyond the end of his or her enlistment. In an uncontested divorce, the active duty spouse may not have to be served by signing and filing a waiver affidavit acknowledging the divorce action.
The USFSPA governs how military pensions are disbursed and whether or not a former military spouse has full medical and commissary privileges.
For this to happen, the former spouse must have been married at least 20 years; the military spouse had at least 20 years of creditable service, and those two overlapped by at least 20 years.
Also, the military member’s retirement will not be distributed to a spouse unless they have been married 10 years or longer while the member has been active duty military.
Learn More: Laws Governing Military Divorces
What if my spouse does not respond to divorce papers? What happens in a default divorce in Montana?
In Montana, if a spouse chooses not to respond to your complaint after being served, a judge can issue a default judgment for your divorce.
In most cases, all terms you are asking for are granted, including things like child support, alimony, a division of assets, and other key issues.
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