Montana Divorce Recovery
You will need to become familiar with certain aspects of Montana divorce law in order to successfully navigate the treacherous waters of becoming single again.
Click on the topics below. They open and close like an accordion
The Montana divorce court will determine child custody after allowing the parties an opportunity to agree on a Parenting Plan and Child Custody Schedule, which will include child custody orders, in accordance with the best interest of the child. Relevant factors that may influence the court's decision can be:
- the wishes of the child's parent or parents,
- the preference of the child,
- 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,
- the child's adjustment to home, school, and community,
- the mental and physical health of all individuals involved,
- physical abuse or threat of physical abuse by one parent against the other parent or the child,
- chemical dependency or chemical abuse on the part of either parent,
- continuity and stability of care,
- developmental needs of the child,
- whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay,
- whether a parent has knowingly failed to financially support a child that the parent is able to support,
- whether the child has frequent and continuing contact with both parents, and any adverse effects on the child resulting from continuous negative behavior.
Final parenting plan criteria
The court will require the submission of a Parenting Plan by the parents. You may wish to use Parenting Plan software to get it right. This plan will include:
- maintaining a loving, stable, consistent, and nurturing relationship with the child,
- attending to the daily needs of the child, such as feeding, physical care, development, and grooming, supervision, spiritual growth and development, health care, day care, and engaging in other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family,
- attending to adequate education for the child, including remedial or other education essential to the best interest of the child,
- ensuring the interactions and interrelationship of the child with the child's parents and siblings and with any other person who significantly affects the child's best interest,
- exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and the family's social and economic circumstances.
Based on the best interest of the child, a final Parenting Plan may include, at a minimum, provisions for:
- designation of a parent as custodian of the child, solely for the purposes of all other state and federal statutes that require a designation or determination of custody, but the designation may not affect either parent's rights and responsibilities under the parenting plan,
- designation of the legal residence of both parents and the child, except as provided in 40-4-217,
- a Residential Schedule specifying the periods of time during which the child will reside with each parent, including provisions for holidays, birthdays of family members, vacations, and other special occasions,
- finances to provide for the child's needs,
- any other factors affecting the physical and emotional health and well-being of the child; and vexatious parenting plan amendment actions.
Relocation of your child
When a custodial parent wishes to change residence, that parent must provide written notice. If the proposed move will affect the child's contact of the other parent, the affected parent must be served personally or by certified mail at least 30 days prior to moving. Proof that contact was made must be furnished to the originating court. Failure of the parent who receives notice to respond to the written notice or to seek amendment of the residential schedule within the 30-day period constitutes acceptance of the proposed revised residential schedule.
Access to records
Access to records and information pertaining to a minor child, which can include medical, dental, law enforcement, and school records, can not be denied to the other parent.
Download Montana Divorce Forms
[Montana Code - Section 40 - Titles: 4-104, 4-108 and 4-212]
A marriage annulment in Montana terminates an already illegal marriage and restores the parties to single status. Marriage annulments (sometimes referred to as a marital annulment or a marital annulment) are more difficult to get because the court expects more documentation and proof of grounds for annulment. Those grounds for annulment include:
Fraud - If you have been cheated into a marriage or your spouse has misrepresented him or herself,
Mental illness - If your spouse is insane and the insanity is affecting your married life,
Bigamy - your spouse married you while already married,
Incest (or consanguinity) - marrying a blood relative too close to you (parents, uncle, aunt, etc.), and
Physical disability - cannot consummate the marriage.
Divorce statutes in Montana provide that in cases where a marriage annulment or marital annulment is sought, and there are children of the marriage, that those children be afforded the same rights, protections and parental financial support, including that the children are not considered illegitimate offspring of the parents, that other children of the state receive.
[Montana Code - Section 40 - Titles: 40-1-103, 40-1-401, 402 ]
In petitions involving dissolution of marriage (divorce), legal separation maintenance, or child support, Montana divorce laws allow the court to order either or both parents owing a duty of support to a child to pay an amount necessary for Montana child's support, without regard to marital misconduct. The court will consider all relevant factors, including:
- the financial resources of the child,
- the financial resources of the parents,
- the standard of living that the child would have enjoyed had the marriage not been dissolved,
- the physical and emotional condition of the child and the child's educational and medical needs,
- the age of the child.
- the cost of day care for the child,
- the age of the child,
- any parenting plan that is ordered or decided upon, and
- the needs of any person, other than the child, whom either parent is legally obligated to support.
Any court order that initiates or modifies an order concerning Montana child support will apply the uniform child support guidelines established by Montana law. An imputed amount [estimated and assigned] will be assessed against a party that fails to adequately provide verifiable information on the income. The court can go outside the guidelines if it finds reason to do so. Each district court judgment, decree, or order that establishes paternity or establishes or modifies a child support obligation must include a provision requiring the parties to promptly file with the court and to update, as necessary, information on:
- the party's identity, residential and mailing addresses, telephone number, [social security number,] and driver's license number,
- the name, address, and telephone number of the party's employer, and
- if the child is covered by a health or medical insurance plan, the name of the insurance carrier or health benefit plan and any pertinent information the court may deem appropriate. If a marriage separation (sometimes referred to as a marital separation or legal separation) has been decreed, the court may make such further orders for the support and maintenance of either spouse and for the support, maintenance, and education of minor children, by either spouse, or out of the property of either spouse, as the court deemed appropriate.
Montana child support ends when the child reaches age 18 or emancipation; or to age 19 if still enrolled in High School.
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[Montana Code - Section 40 - Titles: 4-204, 5-209]
Irretrievable breakdown of the marriage is the only grounds for legal separation under Montana divorce law. One of the spouses must be a resident of Montana for 90 days immediately prior to filing for legal separation (also known as a marital separation). Filing for a legal separation is very similar to that of a divorce. The difference of course is that the parties continue to be married but live separate lives. A separation or 'legal separation' is often sought by one of the parties that wants to terminate the relationship but wishes that the marital status not be interrupted for religious or health care insurance coverage purposes.
You can agree with your spouse on a divorce settlement of assets and debts, or the court can impose its own divorce settlement. Your choice. 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 but not necessarily evenly, after setting aside to each spouse the separate property of each. Factors the court may consider 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.
Lock up the assets
If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.
[Montana Code - Section 40 - Titles: 4-202]
Montana laws mandate spousal support to be paid to either party, and will be determined based on factors specified below:
- the financial resources of the party seeking maintenance,
- the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment,
- the standard of living established during the marriage,
- the duration of the marriage,
- the age and the physical and emotional condition of the spouse seeking maintenance,
- 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]
Parents have the option of creating a Parenting Plan for the children, or if an agreement is not possible, having the court impose a Visitation Schedule. In either case, you should consider including the following considerations so that no questions remain: How is the decreed custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation?
How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children? If an visitation schedule can't be agreed upon between the parties, the court will decide visitation, and will likely include the following: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer. make certain you have a specific custody schedule in place before the divorce decree comes down.
Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. If you anticipate any problems with custody or visitation, we suggest you own Child Custody Strategies.
Montana divorce laws dictate that a marriage can be ended by a summary dissolution [dissolving the marriage without any further action] if:
- irreconcilable differences have caused the irretrievable breakdown of the marriage, and both parties agree that the marriage should be dissolved, or
- The wife is not pregnant and:
- there are no children from the relationship born before or during the marriage or adopted by the parties during the marriage, or
- the parties have executed an agreed-upon parenting plan and the child support and medical support have been determined by judicial or administrative order for all children from the relationship born before or during the marriage or adopted by the parties during the marriage,
- neither party has any interest in real property or they have agreed to its division. Other conditions exist as they relate to property and obligations. [In short, if the parties agree to all issues and understand those agreements, a summary order will be issued].
Irretrievable breakdown as grounds for divorce: When both of the parties stated under oath that the marriage is irretrievably broken or one of the parties has so stated and the other has not denied it, the court will make a finding whether the marriage is irretrievably broken.
When one of the parties has denied under oath that the marriage is irretrievably broken, the court will:
- make a finding whether the marriage is irretrievably broken; or
- continue the matter for further hearing not fewer than 30 or more than 60 days later. Counseling may be recommended by the court.
[Montana Code - Section 40 - Titles: 4-104]
According to Montana divorce laws, a petition for separation may go forward if the court finds that one of the parties is domiciled in 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 prior to the filing of the action.
[Montana Code - Section 25 - Titles: 2-118 and Section 40 - Titles: 4-104]
The district court can at any time require the parties to participate in the mediation of the case. Any party may request the court to order mediation. If the parties agree to mediation, the court may require the attendance of the parties or the representatives of the parties to settle the case at the mediation sessions.
[Montana Code - Section 40 - Titles: 4-121 and 4-124]
The district court may grant to a grandparent of a child reasonable rights to contact with the child. A finding for grandparents rights may be granted only upon a finding by the court that the contact would be in the best interest of the child. A person may not petition the court more often than once every 2 years unless there has been a significant change in the circumstances of the child, the child's parent, guardian, or custodian.
No visitation will be granted to the grandparent over the objection of the parent without an examination of that parent's fitness as a parent. Even if the parent is ruled unfit, grandparents must provide evidence that is clear and convincing that visitation with the grandparent is in the best interest of the child.
Montana law holds that intact families (the child's natural parents are married and living together) trump all other visitation requests unless someone can show cause otherwise.
Petitions for grandparent-grandchild visitation more than once every two years unless the something material has changed in the grandchild's life. Adoption terminates the rights of the grandparents unless the adopting party is a stepparent or grandparent.
A Word On Your Journey Toward Healing And Recovery ...
At some point in the process, you may discover that you will not be able to manage the divorce recovery all by yourself. If you are a man, you are apt to bury the hurt and anguish and force yourself to Move On. However, unresolved feelings are just that- unresolved, and are likely to become issues later on. If you are a woman, you will feel the process more, and likely will experience a feeling of loss while feeling lost. We recommend you spend time discovering why things worked out as they did, so that you grow with the new knowledge. We offer a myriad of tools that can get you to the other side. The more you learn, the less you fear. Trust us on this. Spend some time and a few bucks and the return will be ten-fold.