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Montana Divorce Laws
Residency and Filing Requirements:In order to file for a dissolution of marriage in Montana, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
The district court shall enter a decree of dissolution of marriage if: the court finds that one of the parties, at the time the dissolution of marriage was filed, was a resident of this state, or was stationed in this state while a member of the armed services, and that the domicile or military presence has been maintained for 90 days preceding the filing of the action. (Montana Code - Section 25 - Titles: 2-118 and Section 40 - Titles: 4-104)
Grounds for Filing:The Petition for Dissolution of Marriage must declare the appropriate Montana grounds upon which the dissolution of marriage is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The dissolution of marriage grounds are as follows:
The court will grant a dissolution of marriage according to the following grounds:
(1) the court finds that the marriage is irretrievably broken, which findings must be supported by evidence: (2) the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding; or (3)that there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage. (Montana Code - Section 40 - Titles: 4-104)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court. The filing spouse can also be titled the Co-Petitioner is filing jointly.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial dissolution of marriage papers, but rather receives them by service. The filing spouse can also be titled the Co-Petitioner is filing jointly.
Court Name:District Court for the State of Montana and for the County of __________. This is the Montana court where the dissolution of marriage will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Dissolution of Marriage and Decree of Dissolution of Marriage. These are the essential documents needed to start and finalize a dissolution of marriage according to Montana law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Marital Settlement Agreement, Final Declaration of Disclosure of Assets, Debts, Income and Expenses , Request for Hearing and Order, and Notice of Entry of Final Decree.
Court Clerk's Title:District Clerk's Office. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since Montana is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
The parties are unable to agree otherwise, the court shall consider the following when distributing the marital property upon dissolution of marriage: duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income.
The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit.
When considering the contribution each spouse had to the acquisition of the marital property, the court will consider; (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of this property; and (c) whether or not the property division serves as an alternative to maintenance arrangements. (Montana Code - Section 40 - Titles: 4-202)
Restoration or Name Change:Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order the wife's maiden name or a former name restored. (Montana Code - Section 40 - Titles: 4-108)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
The court will order maintenance, when the spouse are unwilling to come to an agreement, in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; (d) the duration of the marriage; (e) the age and the physical and emotional condition of the spouse seeking maintenance; and (f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. (Montana Code - Section 40 - Titles: 4-203)
Counseling or Mediation Requirements:If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider continuing the matter for further hearing not fewer than 30 or more than 60 days later or as soon thereafter as the matter may be reached on the court's calendar and may suggest to the parties that they seek counseling. The court at the request of either party shall, or on its own motion may, order a Conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken. (Montana Code - Section 40 - Titles: 4-121 and 4-124)
Child Custody:When minor children are involved in a dissolution of marriage, the Montana courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
The court shall determine the custody arrangement and parenting plan in accordance with the best interest of the child. The court shall consider all relevant parenting factors, which may include but are not limited to: (a) the wishes of the child's parent or parents; (b) the wishes of the child; (c) the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who significantly affects the child's best interest; (d) the child's adjustment to home, school, and community; (e) the mental and physical health of all individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; (g) chemical dependency, or chemical abuse on the part of either parent; (h) continuity and stability of care; (i) developmental needs of the child; (j) whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child's best interests; (k) whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests; (l) whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests. (m) adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions. (Montana Code - Section 40 - Titles: 4-104, 4-108 and 4-212)
Child Support:Montana child support guidelines uses the Percentage of Income formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
The court shall determine the child support obligation by applying the support standards, guidelines and worksheets. The court will also consider the following without regard to marital fault or misconduct: (a) the financial resources of the child; (b) the financial resources of the parents; (c) the standard of living that the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child and the child's educational and medical needs; (e) the age of the child; (f) the cost of day care for the child; (g) any parenting plan that is ordered or decided upon; and (h) the needs of any person, other than the child, whom either parent is legally obligated to support.
If the court finds that a delinquency greater than the total of 6 months of support is owed and that the obligated person has the ability to post bond, give a mortgage, or provide security or other guaranty, the court may enter an order requiring the obligated person to post bond, give a mortgage, or provide security or guaranty for so long as there is a support delinquency. (Montana Code - Section 40 - Titles: 4-204, 5-209)
Copyright Notice: The above synopsis of Montana divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
Montana law calls for equitable division of property. While equitable implies fair, it does not necessarily mean equal. The court, however, encourages spouses to come to an agreement on their own regarding marital property. If the court must intervene, it will take several factors into account. Considerations include, but are not limited to, whether or not one spouse will receive alimony payments, the earning capacity of both spouses, length of the marriage, contribution of the homemaker if applicable, custody arrangements, and debts and age.
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