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Montana Annulments
Annulments in Montana

Despite popular belief, getting an annulment is not easier than getting a divorce. Some Montana marriages may be terminated by what is called a “declaration of invalidity,” which means the marriage is not valid and does not exist. Even with a declaration of invalidity as an option, Montana divorce laws favor the dissolution to dissolve a marriage; for that reason, declarations of invalidity are granted sparingly.

Children born of an annulled marriage are still the legitimate children of the parents. The court may make orders about child custody, visitation, and child support. The court may also make orders for spousal maintenance, and it may divide marital property.

Montana’s laws on annulment are in the Montana Code Annotated 40-1-401, 402 and 404 and 40-6-201.

Grounds

In Montana, a marriage may be invalid due to:

  • Bigamy: when one spouse is married to another living person at the time of the second (or subsequent) marriage. This subsequent marriage is invalid unless the previous marriage is dissolved and the partners of the subsequent marriage continue to live together.
  • Kinship: when the following relatives marry; parent and child; brother and sister, whether half blood, whole blood or adopted; first cousins; aunt and nephew, whether half or whole blood; and, uncle and niece, whether half or whole blood. This type of marriage can never be made valid.
  • Mental incapacity: may be due to mental illness or infirmity, or because one spouse was intoxicated or under the influence of drugs. To claim a marriage is invalid due to mental incapacity, the partner must be unable to make a marriage contract. The statute of limitations for an annulment based on mental incapacity is one year after discovering it.
  • Physical incapacity: means a spouse is unable to consummate the marriage by sexual intercourse and, at the time of the marriage, the other spouse did not know about it. The petition on grounds of physical incapacity must be brought no more than four years after learning of the problem.
  • Force, duress or fraud: one spouse is induced to marry by force or duress, or if there is fraud by one spouse regarding the essentials of the marriage contract. Action on this issue must be brought no more than two years after discovery.
  • Under age: one or both spouses are under the age of 16, or one or both are between 16 and 18 and do not have the consent of parents, guardian or the court. This type of annulment case must be filed before the underage spouse reaches legal age of marriage. If it is not, the marriage automatically becomes valid once both spouses achieve a majority.

Procedure

When a marriage is invalid, a spouse or his or her representative may file papers for an annulment in the Montana district court where one of the spouses lives. No case for annulment can be brought after the death of one of the spouses.

The filing spouse is the petitioner in the complaint; the other spouse is the respondent. The complaint must state which spouse has lived in the county where the action is filed and for how long. The complaint states the date of the marriage, and identifies the children born of the marriage as well as the grounds for an annulment.

After filing in the district court, the plaintiff serves the defendant with a copy of the complaint. Although a little more difficult, it is possible to serve a party even if he or she cannot be found or lives out of state.

At a hearing, the judge decides if the plaintiff has proven that the marriage should be annulled. If so, the judge will sign an order granting an annulment. The judge may also grant the annulment if the defendant simply agrees with it.

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