Residency Requirements and Grounds for Divorce
Either you or your spouse must be a resident of Montana for at least 90 days before filing for divorce. A divorce case begins when one spouse files papers for dissolution of marriage in a county where either spouse lives.
The only ground for divorce is irretrievable breakdown of the marriage. This means there's no reasonable chance the marriage can continue. This is a "no-fault" ground, and you don't have to show one spouse was responsible for the break-up.
Dividing the Property
Montana is an equitable division state, meaning the court makes an equitable or fair division of the spouses' property. An equitable division doesn't always mean a equal division. In deciding how to divide the property owned by divorcing couples, judges will consider a number of factors, including:
- Prior marriages
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estates, liabilities
and needs of each spouse
- Custodial provisions
- How property division relates to spousal maintenance
- Chances for each spouse to make future gains of assets and income
- The contribution or dissipation of value of the respective estates and a spouse's contributions as homemaker
In in dividing separate property, which is property acquired prior to marriage, gifts and inheritance, the court considers contributions of the other spouse to the marriage, including:
- The nonmonetary contribution of a homemaker
- If contributions aided in maintenance of property
- Whether or not the property division serves as an alternative to maintenance arrangements
The court can order joint or separate property set aside or placed in trust for the benefit of the couple's children. These assets can be used for the children's general welfare or specific needs such as care for a disabled child or educational costs.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Montana divorce lawyer and it can save you a lot of time and money.
A court can order alimony or maintenance to either spouse, but only if it's needed due to lack of property to provide support, the inability to support one's self through an appropriate job or caring for a child precludes employment.
The amount and length of the maintenance order is determined by the court, without regard to marital misconduct and after considering all relevant facts including:
- Financial resources of the spouse seeking support
- Time needed to gain education or training to allow the recipient spouse to find a proper job
- Standard of living during the marriage
- Marriage duration
- The age and the physical and emotional condition of the recipient spouse
- The ability of the payor spouse to meet his or her needs while also paying maintenance
Temporary maintenance may be ordered while the divorce is pending. Most maintenance is ordered for a specific length of time.
Child Custody and Visitation
Montana no longer uses the terms and concepts of child custody and visitation. Instead, parents form a "parenting plan" covering child rearing after divorce. Your plan covers all elements from where your children live, how time with the children is shared and who makes decisions regarding the children.
If there aren't any other issues, the court approves your Final Parenting Plan. Using the parenting plan concept is aimed at serving the child's best interests and reducing the likelihood of future conflicts over the kids and coming back to court for help.
The court devises a plan based on the child's best interests when parents can't agree. Factors guiding the court's decision include the child's and parents' wishes, the child's relationships with others, adjustment to home, school and community, the child's needs and how continued disputes and parenting plan changes would affect the child.
Changes to your parenting plan are made through an amendment to the parenting plan. The court amends the plan when there's been a change in circumstances, and changing the plan is in the best interest of the child. Factors considered by the court include whether the parents agree to the change, whether an older child agrees and whether a parent's actions such as abuse or not following the existing plan warrant the changes sought.
In Montana, the court will order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child's support, without regard to marital misconduct. The court considers all relevant factors, including:
- Financial resources of child and parents
- Standard of living the child would have enjoyed had the parents stayed married
- Physical and emotional condition of the child and educational and medical needs
- Child's age
- Day care costs
- Parenting plan terms
- Other support obligations of the parents
Even if you and your spouse have a child support agreement, the court applies state child support guidelines to your case. The support amount based on the guidelines is presumed correct, but the court can order a different amount if clear and convincing evidence shows that amount is unjust or inappropriate for your case.
Questions for Your Attorney