Montana Divorce FAQ's

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