Divorce – State FAQ – Montana
Residency requirements, venue and procedures
Q: How long must I have lived in Montana prior to filing for divorce in an Montana court?
A: 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.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent. If parties file a Joint Petition they are known as Co-Petitioners.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Montana, proper venue for the divorce action is the District Court. The petition should be filed in the county where either party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition for Dissolution of Marriage, while the title of the order granting the divorce is referred to as the Decree of Dissolution of Marriage.
Q: What is a “Summary Dissolution” divorce?
A: A Summary Dissolution divorce is one in which a more streamlined procedure is used for parties who have limited assets and liabilities and no children of the marriage. It is essentially a simplified no-fault divorce.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Montana. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Montana?
A: 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.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: 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 those listed in the Information section of the Montana Divorce Main Page.
Q: On what basis does the court decide how marital property is divided?
A: Montana is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:
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.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child parenting and visitation
Q: What is child custody (“child parenting”) and visitation?
A: “Child parenting” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents obtain visitation rights?
A: Yes. Grandparents can obtain visitation of a grandchild provided that it would be in the best interest of the child.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court may award custody to either parent, regardless of sex, subject to the best interests of the child. A discussion of the court’s considerations in determining child custody issues can be viewed in the Information section of the Montana Divorce Main Page.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: 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.