Montana Divorce Information
and FAQ
Montana law permits dissolution of marriages based upon the
irretrievable breakdown of the marriage. A finding of irretrievable
breakdown of the marriage is a determination that there is no
reasonable prospect of reconciliation. The parties must have either
lived separate and apart for more than one hundred eighty (180) days
or there must exist serious marital discord that adversely affects
one or both of the parties toward the marriage. In addition, the
court must find that the conciliation provisions of Montana law
either do not apply or have been met and whether issues regarding
parenting and support have been addressed. MCA 40-4-104 Residency
requirements Montana law requires that at least one of the spouses
must be a resident of the state for a minimum of ninety (90) days
immediately prior to the filing of the petition for dissolution of
marriage. The petition for dissolution of marriage may be filed in
the county in which either party resides. MCA 40-4-104
Name of court and title of action/parties An action for
dissolution of marriage in the State of Montana is filed with the
District Court. The title of the action initiating the dissolution
proceeding is a Petition for Dissolution of Marriage, while the
title of the action granting the dissolution is referred to as the
Decree of Dissolution of Marriage. The party who files the action is
the Petitioner, while the other spouse is referred to as the
Respondent. If the Petition is filed jointly, both parties are
referred to as Co-Petitioners. Legal separation Montana law permits
a judgment of separation to be granted provided the parties meet the
same requirements for a divorce action. In addition, the court must
find that there is a reasonable likelihood that the marriage can be
preserved. MCA 40-4-104
Alimony/support The courts may award alimony to either spouse
only upon a finding that the spouse seeking the alimony lacks
sufficient property to provide for his/her reasonable needs and is
unable to support himself/herself through appropriate employment,
or, is a custodian of a child whose condition is such that the
custodian should not be required to seek employment.
Factors the court considers in determining the amount and term of
alimony include:
1. The financial resources of the spouse seeking alimony, 2. The
time necessary for the spouse seeking support to acquire sufficient
education or training, 3. The comparative earning capacity of each
spouse, 4. The standard of living established during the marriage,
5. The obligations and assets of the marriage, both separate and
marital, 6. The duration of the marriage, 7. The age, physical and
mental condition of the spouse seeking support, 8. The ability of
the supporting spouse to meet both his needs and the needs of the
spouse seeking support, 9. The conduct of the parties during the
marriage, 10. And any other relevant factors. MCA 40-4-203 » Return
to top Distribution of property Montana is an equitable distribution
state. This means that the court will divide the marital property
between the parties as it deems equitable and just, after setting
aside to each spouse the separate property of each. Some of the
factors the court considers in dividing the property between the
parties include: 1. The duration of the marriage and prior marriage
of either party. 2. The age, health, station, occupation, amount and
sources of income. 3. Vocational skills, employability, estate,
liabilities and needs of each party. 4. Custodial provisions. 5.
Whether the apportionment is in lieu of or in addition to
maintenance. 6. The opportunity of each for future acquisition of
capital assets and income. MCA 40-4-202
Preliminary/final declaration of disclosure Within sixty (60)
days of service of a petition for dissolution or separation, each
party shall serve upon the other a preliminary declaration of
disclosure setting forth the identity of all assets and liabilities,
along with income and expenses. A final declaration of disclosure,
setting forth all assets, liabilities, income and expenses must also
be served upon the other party before or at the time the parties
enter into an agreement regarding property or support, or no later
than forty-five (45) days before the first trial date. Such
declarations shall be under penalty of perjury. In addition, the
court may set aside all or part of the judgment should it discover,
within five (5) years from date of entry, that a party has committed
perjury in the final declaration. Child custody/parenting The legal
term used in Montana to refer to custody is "Parenting".
Montana courts will decide the issue of parenting based upon the
best interests of the child. A partial list of factors the court
will consider in determining the best interests of the child
include: The wishes of the parents, the need of the child for a
frequent and meaningful relationship with both parents, the
interaction and interrelationship of the child with both the parents
and any siblings, and the wishes of the child. Each parent is
required to submit to the court, in good faith, a proposed final
parenting plan which must be incorporated into any final or amended
decree, setting forth arrangements regarding such issues as custody,
visitation and residential time for each child that the party
believes to be in the best interests of the child.
No preference will be given to either parent in determining
custody based upon the parent’s age, sex or financial status, nor
because of the age or sex of the child. When there is a minor child
of the marriage, the court shall inform the parties of educational
programs concerning the effects of dissolution of marriage on
children, and if it would be in the best interests of the child, the
court may order the parties to attend such a program. The court may
grant visitation rights to the grandparents of the child if such
visitation would be in the best interests of the child. Unless a
parent has been denied custody or visitation rights, both parents
shall have equal access to records and information pertaining to a
minor child, including but not limited to, medical dental and school
records. MCA 40-4-104, 4-108, 4-212, 4-223
Child support In a proceeding for dissolution of marriage or
legal separation, the court may order either or both parties to pay
a reasonable amount necessary for the support of a child of the
marriage. Some of the factors the court will consider in determining
the amount of child support include: the financial needs and
resources of the child, the financial resources and needs of the
parents, and the standard of living the child would have enjoyed had
the marriage not terminated. The Montana legislature has established
child support guidelines which establish the presumptive correct
amount of child support. Deviation from the guidelines require a
specific finding by the court that application of the guidelines
would be unjust or inappropriate and such findings must be included
in the judgment. Should the court deviate from the guidelines, it
must include in its decision a statement of what the support amount
would have been under the guidelines. MCA 40-4-204 Family law
mediation The court may at any time require the parties to a
dissolution of marriage proceeding to participate in the mediation
of the case. The purpose of mediation is to reduce the acrimony that
may exist between the parties and to develop an agreement that is
supportive of the best interests of a child involved in the
proceeding. The mediator shall attempt to effect a settlement of the
parenting, child support, parental contact with the child,
maintenance, or property settlement dispute. MCA 40-3-121
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