Divorce Guide

Divorce Guide


Montana Divorce Laws



Residency Requirements for Divorce in Montana
One of the spouses must be a resident of Montana for 90 days immediately prior to filing. The dissolution of marriage should be filed for in the county where the petitioner has been a resident for the previous 90 days.
[Montana Code Annotated; Section 25, Title 2-118 and Section 40, Title 4-104].

Legal Grounds for Divorce in Montana

  1. No Fault Divorce: Irretrievable breakdown of the marriage shown by:
    1. Serious marital discord which adversely affects the attitude of both spouses towards the marriage and no reasonable prospect of reconciliation
    2. Living separate and apart for 180 days prior to filing
    [Montana Code Annotated; Section 40, Title 4-104].
  2. General Divorce: Irretrievable breakdown of the marriage and living separate and apart for 180 days prior to filing are the only grounds for dissolution of marriage in Montana.
    [Montana Code Annotated; Section 40, Title 4-104].

Legal Separation in Montana
Irretrievable breakdown of the marriage is the only grounds for legal separation in Montana. One of the spouses must be a resident of Montana for 90 days immediately prior to filing for legal separation.
[Montana Code Annotated; Section 40, Title 4-104].

Simplified/Special Divorce Procedures in Montana
Joint petitions for dissolution of marriage are allowed. In such cases, both spouses should be titled as "Co-Petitioners" on the petition. In addition, separation or settlement agreements are specifically authorized by law.
[Montana Code Annotated; Section 40, Title 4-107].

Divorce Mediation or Counseling Requirements
If there are:

  1. minor children
  2. 1 spouse denies that the marriage is irretrievably broken
  3. 1 or both spouses wish to attempt an amicable settlement of their differences
the court may delay the proceedings for 30 to 60 days and refer the spouses to 1 of the following:
  1. A psychiatrist
  2. A physician
  3. An attorney
  4. A social worker
  5. A pastor or director of any religious denomination to which the spouses belong
  6. Any other person who is competent and qualified in personal counseling
[Montana Code Annotated; Section 40, Titles 3-121 and 3-124].

Divorce Property Distribution
Montana is an "equitable distribution" state. All of the spouse's property, including any held prior to the marriage and any gifts and inheritances, is divided by the court, without regard to marital misconduct, based on consideration of the following factors:

  1. The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker
  2. The length of the marriage
  3. The age and health of the spouses
  4. The occupation of the spouses
  5. The amount and sources of income of the spouses
  6. The vocational skills of the spouses
  7. The employability of the spouses
  8. The liabilities and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
  9. The time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment
  10. Any premarital agreement
  11. Any prior marriage of each spouse
  12. Whether the property award is instead of or in addition to maintenance
  13. Any custodial provisions for the children
[Montana Code Annotated; Section 40, Title 4-202].

Alimony and Spousal Support
Either spouse may be awarded maintenance if that spouse can show:

  1. An inability to support himself or herself
  2. A lack of sufficient property (including his or her share of any marital property) to provide for his or her own needs
  3. That the spouse seeking support is the custodian of a child whose condition or circumstances make it appropriate for that spouse not to seek outside employment
The award is made without regard to marital fault, based on the following factors:
  1. The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity
  2. The standard of living established during the marriage
  3. The duration of the marriage
  4. The ability of the spouse from whom support is sought to meet his or her needs while meeting those of the spouse seeking support
  5. The financial resources of the spouse seeking maintenance, including marital property apportioned to such spouse and any child support and such spouse's ability to meet his or her needs independently
  6. The age of the spouses
  7. The physical and emotional conditions of the spouses
[Montana Code Annotated; Section 40, Title 4-203].

Spouse's Name After Divorce
Upon the wife's request, her former or maiden name will be restored.
[Montana Code Annotated; Section 40, Title 4-108].

Child Custody After Divorce
"Parenting" is now the legal terminology in use in Montana to describe the concept of custody. "Parenting Plans" are now the Montana description of child custody arrangements. Sole or joint parenting is awarded based on the best interests of the child and upon a consideration of the following factors:

  1. The preference of the child
  2. The wishes of the parents
  3. The child's adjustment to his or her home, school, and community
  4. The mental and physical health of all individuals involved
  5. Any history of child or spouse abuse or threats of abuse
  6. Any chemical dependency or abuse by a parent
  7. The relationship of the child with parents, siblings, and other significant family members
  8. The continuity and stability of the child's care
  9. The developmental needs of the child
  10. Whether a parent has failed to pay any of the child's birth-related costs
  11. Whether the child has frequent and continuing contact with both parents (a consideration of any spousal or child abuse by either parent or anyone residing in a parent's household is considered also)
  12. Whether a parent has knowingly failed to support the child
  13. Any adverse effects on the child resulting from 1 parent's continuous and annoying efforts to amend parenting plans
The parents must submit a parenting plan to the court; although they may choose to submit a temporary or "interim" parenting plan. A parent's sex is not to be considered.
[Montana Code Annotated; Section 40, Titles 4-104, 4-108, and 4-212].

Child Support After Divorce
Either or both parents may be ordered to pay child support, based on a consideration of the following factors:

  1. The financial resources of the child
  2. The standard of living the child would have enjoyed if the marriage had not been dissolved
  3. The physical and emotional conditions and educational and medical needs of the child
  4. The financial resources, needs, and obligations of both the noncustodial and the custodial parent
  5. The age of the child
  6. The cost of any daycare
  7. The parenting plan for the child
  8. The needs of any other person that a parent is obligated to support
  9. The provision of health and medical insurance for the child
A portion of the parents' property may be set aside in a trust fund for the support of the children. A parent may be ordered to provide health insurance coverage for a child if such coverage is available at a reasonable cost. There are uniform child support guidelines adopted by the Department of Public Health and Human Services that are to be considered by the court. Child support payments may be required to be made through the Department of Health and Human Services.
[Montana Code Annotated; Section 40, Titles 4-204 and 5-209].


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