Here’s what you need to know if you’re faced with an alimony issue in Montana.
- Who is Entitled to Alimony in Montana?
- Types of Alimony in Montana
- What Factors Are Used to Determine Alimony?
- Modifying or Terminating Spousal Support in Montana
- Enforcing Montana Alimony Awards
- Spousal Support and Taxes
- Montana Alimony FAQs
Who is Entitled to Alimony in Montana?
Alimony, spousal support, and spousal maintenance are used interchangeably in Montana.
Maintenance is the money paid by one spouse to the other following a divorce. It is intended to equalize the standard of living of both spouses until both can become self-sufficient.
Alimony awards are gender neutral. Either spouse can request it, but an award isn’t automatic.
In Montana’s alimony statute, the spouse that makes most of the money will share that income with the other spouse, but the amount and duration will vary from case to case.
If you’re asking the court for alimony, you’ll need to prove that you lack sufficient property to provide for your needs and you are unable to be self-supporting through employment, or you are a custodial parent to a child whose needs make it impossible to work outside the home.
Types of Alimony in Montana
There are several types of alimony available in Montana.
Temporary Spousal Support
While the divorce is pending, the court may award temporary spousal support to a spouse with financial needs until a divorce is final. This is also referred to as pendente lite support. When this temporary alimony terminates, it may be replaced by another form of alimony.
The most common type of maintenance in Montana is short-term support, also known as rehabilitative support. It may be awarded when a Montana family court anticipates both spouses will become financially independent after the divorce but recognizes that one spouse may take longer than the other.
This temporary support is awarded to spouses who are capable of working but require time and financial assistance to obtain the sufficient education or training and skills to find work and become self-sufficient. The court will usually set an end date for rehabilitative support. However, it is possible to seek an extension if more time is required to become self-sufficient.
Permanent assistance is a long-term remedy for spouses unable to support themselves due to older age, unemployment, or infirmity. Permanent support is rarely ordered and usually reserved for lengthier marriages.
Despite its name, permanent support doesn’t always last indefinitely. Judges will allow the paying spouse to request a review if either spouse’s situation changes.
Alimony can be paid periodically (monthly or bi-weekly), in a single or several lump-sum payments, or through a property transfer. A court determines the most appropriate payment based on the case’s specifics.
To avoid going to court for alimony negotiations, spouses can also work with a mediator to develop a mutual agreement on their own. That gives them more control over the process. However, a judge will still need to review and approve the agreement, making sure it is fair and just.
Read More: Everything You Need to Know About Alimony
What Factors Are Used to Determine Alimony?
Montana judges do not use any type of formula when calculating alimony payments. Instead, judges have broad discretion to decide the amount and duration on a case-by-case basis. To guide them in determining alimony, the court considers several factors as part of the process.
These factors include:
- The length of time the marriage was viable
- The extent of contribution the supported spouse gave to the other’s educational pursuit or professional license during the marriage
- Each spouse’s financial resources
- The age, mental health, and emotional health of each of the parties
- Each party’s tax consequences
- The amount of marital property received by each party
- The ability of the supported spouse to gain employment without interfering with their children’s care
- How likely it is for the requesting spouse seeking alimony to be able to get to the same standard of living they enjoyed during their marriage, and how long it would take to achieve that status
- Each spouse’s earning capacity.
Pro Tip: Earning capacity is based on an assessment of:
- Vocational skills
- Educational level
- Work experience
- Length of absence from the working world
- The job market for the field in which the spouses are trained
- The length of time and the money required to complete education or training that would enable a spouse to find gainful employment and become self-supporting
- Whether there is a documented history of domestic violence against the children or either party
- If there are any criminal convictions of an abusive spouse
- Any other factors which the court decides to consider
Read More: How to File for Divorce in Montana
Modifying or Terminating Spousal Support in Montana
Unless your divorce decree states that alimony is nonmodifiable, either spouse can ask for a modification when there are significant changes after an initial award is made.
These changes include but are not limited to:
- The payor spouse suddenly loses their job
- The receiving spouse is remarrying or romantically cohabitating
- The receiving spouse has a significant change in income
- Major changes in health that affect a paying spouse’s ability to generate income
If you request a change, you will need to petition the court to prove why a modification is warranted.
Enforcing Montana Alimony Awards
If a spouse is not receiving court-ordered alimony payments promptly, they can ask the court to enforce the award.
Often, a wage garnishment order will be issued when the alimony award is decided to avoid this type of situation. A withholding order directs a paying spouse’s employer to automatically hold back the award amount before the paying spouse sees it.
Money is sent to the state, and the state disburses the money to the receiving spouse.
This does not work if the paying spouse is self-employed or has a problem with remaining employed. In such a case, you can request the court to mandate your ex to set up a trust account you can access if you don’t get your alimony on time.
When an ex-spouse chooses not to make maintenance payments, the unpaid maintenance goes into alimony arrears. The courts have several options to compel payment to collect alimony arrears when no withholding order is in place.
This can include mediation, small claims court actions, or a contempt of court charge. Contempt orders can result in fines, paying attorney’s fees, interest charges, and jail in some cases. Courts may also restrict driver’s, sporting, and professional licenses, intercept tax refunds, or place a lien on bank accounts or assets to recover any unpaid support. Unemployment, workers’ compensation, and disability payouts can also be intercepted.
Courts can also issue a writ of execution. This order authorizes a debtor’s property to be seized to pay their debts.
Montana courts are typically hesitant to fine or imprison those who fail to pay alimony orders or agreements because it is more difficult for a paying party to make the required alimony payments. However, in Montana, conviction is punishable by up to six months in jail.
Spouses with legitimate problems meeting alimony payments should seek a hearing with the court to pursue a modification that may reduce or cancel an award.
In the interim, that party must keep paying alimony. It is a court order that must be honored until new terms are implemented.
Spousal Support and Taxes
Due to recent changes in Federal laws, when a spouse pays alimony, they cannot deduct alimony or separate maintenance payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.
The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.
Taxpayers paying alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:
- The recipient must be a spouse or former spouse
- There must be a written divorce or separation instrument
- Alimony must be made with cash payments (such as checks and money orders)
- Maintenance does not continue after the recipient dies
- The parties must live apart, residing in different households
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
- The court-ordered payment of alimony cannot state that payments are not deductible
Montana Alimony FAQs
Does adultery affect alimony in Montana?
According to Montana divorce laws, adultery and other marital misconduct do not impact spousal support. Adultery is also not a factor when deciding child custody and visitation.
Infidelity also does not typically impact the court’s division of property.
However, the court may consider the money spent on the extramarital affair during the marriage when dividing the property between the couple. But the court will not award spousal maintenance to a cheating spouse for the extramarital affair in and of itself.
Can a prenuptial agreement waive alimony?
Yes, it’s possible to waive alimony as part of a prenuptial agreement. If the prenup is valid and enforceable, then the terms of the prenup will dictate what happens with alimony in a divorce.
What happens if a spouse purposely quits or takes a lower paying job to avoid paying alimony?
The court may impute earnings on a spouse by looking at their past job history, income, skills, and the current job market. From these factors, the court may assign a dollar amount the non-paying spouse should be obligated to pay.