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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