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Grounds for Divorce Under Montana Divorce Laws
If your marriage is broken beyond repair, you are probably eligible for a divorce in Montana. As it happens, there is only one acceptable grounds for divorce in under Montana divorce laws and that is… irretrievable breakdown of the marriage. This is pretty simple; the marriage is not working out and there is no reasonable prospect of reconciliation.
You must have either lived separate and apart for more than 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 divorce laws either do not apply, or have been met and whether issues regarding parenting and support have been addressed. We will discuss issues of parenting and support further down. In the meantime, you just need to establish that your marriage is really unfixable and then you are ready to begin the process.
If you are going to file for dissolution of marriage (a fancy way of saying “divorce”), you and/or your spouse must be a resident of Montana for a minimum of 90 days immediately prior to the filing of the petition for dissolution of marriage, which can be filed in the county in which either you or your spouse resides.
Name of Court and Title of Action/Parties
Depending on whether you are the one filing for divorce or the one being served, you are either the Petitioner (the filing spouse) or the Respondent (the other one). If the Petition is filed jointly, both parties are referred to as Co-Petitioners.
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.
Before we go on to the more difficult aspects of divorce, let’s take a step back for a minute. For couples that feel their marriage might have a chance and who are not yet ready to go for a full divorce but who still need to take some time away from each other, there is another way.
You don’t have to get divorced if you are not ready to do so. Montana divorce laws permit 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. Sometimes, time apart from each other makes you realize how much you miss the person.
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 him/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:
- The financial resources of the spouse seeking alimony
- The time necessary for the spouse seeking support to acquire sufficient education or training
- The comparative earning capacity of each spouse
- The standard of living established during the marriage
- The obligations and assets of the marriage, both separate and marital
- The duration of the marriage
- The age, physical and mental condition of the spouse seeking support
- The ability of the supporting spouse to meet both his needs and the needs of the spouse seeking support
- The conduct of the parties during the marriage.
- Any other relevant factors
Distribution of Property
Montana is an equitable distribution state. This means that you get to keep any property that belongs exclusively to you (just as your spouse gets to keep any that belongs exclusively to her) and the court will divide the marital (shared) property, as it deems equitable and just. Some of the factors the court considers in dividing the property include:
- The 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 party
- Custodial provisions
- Whether the apportionment is in lieu of or in addition to maintenance
- The opportunity of each for future acquisition of capital assets and income
Preliminary/Final Declaration of Disclosure
Within 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. What this means is that you must provide information about your income, assets, debts, and investments to your spouse. You will have to fill out a form or two and then give a copy to your spouse. Even if you have nothing, you must still complete these forms and provide your spouse this information.
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 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 years from date of entry, that a party has committed perjury in the final declaration. So you want to make sure you provide all information accurately and completely.
In Montana, the legal term for child custody is “Parenting”. Montana courts will decide the issue of parenting based upon the best interests of the child. The court will consider several factors, including:
- 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 parents and any siblings
- 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. When preparing this parenting plan, keep in mind that the courts are looking for what is best for the child, not what is best for you.
No preference will be given to either parent based on the parent’s age, sex or financial status, or the age or sex of the child.
The court may order you to attend an educational program concerning the effects of divorce on children, if it is determined to be in the best interest 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.
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
- The standard of living the child would have enjoyed had the marriage not ended
The Montana legislature has established child support guidelines, which establish the presumptive correct amount of child support. Deviation from the guidelines requires a specific finding by the court that application of the guidelines would be unjust or inappropriate.
Family Law Mediation
In a dissolution of marriage with children involved, if there exists any problems in coming to an agreement regarding the children, the court may at any time require you and your spouse to participate in mediation. The purpose of mediation is to reduce the animosity that may exist between the parties and to develop an agreement that is supportive of the best interests of the 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.