Requirement for divorce in Montana
Montana is a “no-fault” divorce state
You or your spouse need to be a Montana resident in order to file for divorce
Or, either spouse is in the military, they could have been stationed in Montana and the domicile should have been maintained for 90 days prior to the divorce being granted.
If your spouse and you have minor children, then the children should have lived in the state for at least six months prior to the filing of the divorce petition.
In case of a “no-fault” divorce, the spouses must state that their marriage is “broken irretrievably” and that both spouses have been living separate and apart for a period of 180 days prior to filing for divorce.
Once you serve the divorce petition to your spouse, then the divorce can take around 20 days to be finalized.
Grounds for divorce
In Montana, the ground for divorce are:
No-Fault Divorce
If the spouses state that their marriage is “broken irretrievably” then this must be supported by evidence.
Both spouses have lived separate and apart for more than 180 days before the start of the divorce action.
There is a serious marital discord between both the spouses and there is no possibility of a reconciliation.
Step 1: Starting your Montana divorce
Preparing the Paperwork
In order to file for divorce in Montana, you must complete the following forms.
Affidavit for Publication of Summons: This is filed by the petitioner if he/she can’t serve the respondent as he/she cannot be located. This form certifies that a diligent effort was made to locate the missing respondent.
Declaration of Disclosure: Lists the finances of both spouses, held jointly and individually.
Default: If the respondent does not respond to the summons, the petitioner can request the court to order a default judgment.
Notice and Acknowledgment to cse : Notice & Acknowledgement to the csed (Child Support Enforcement division) stipulating the 3rd-party to enforce child support.
Notice and Acknowledgment: This verifies that the respondent has waived the formal service of the divorce papers.
Notice of Filing Child Support Guidelines Affidavit: Used by both spouses to inform one another that the Child Support Guidelines Affidavit has been filed to determine child support.
Petition
Praecipe for Service: In case the respondent cannot be served by mail, this form directs the sheriff to serve the papers to the respondent.
Request for Hearing & Order Granting Hearing: Requests the court to schedule a dissolution hearing.
Summons and tr : Prohibits both spouses from dissipating the assets that are pending for distribution.
Order of Publication of Summons: Court order which permits the petitioner spouse to serve summons to the respondent by means of publication.
Summons for Publication: Should be filed when the respondent cannot be located and must be served by means of publication.
Consent to Entry of Decree: In a joint filing, this form certifies that both spouses agree to the terms and conditions.
Vital Statistics Reporting Form: Records the facts of the dissolution.
Parenting Plan: Stipulates the terms and conditions of child custody and visitation.
Notice of Entry of Decree: Informs the respondent spouse that the final decree of dissolution has been issued.
Decree: This terminates the marriage.
Filing Your Forms
When the divorce forms have been completed, they should be taken to the courthouse by the petitioner or by the co-petitioners and filed. You will be charged a filing fee; however, if you cannot pay the same, then you must complete the form for a fee waiver. In case the judge feels that you cannot pay the fees, he/she will order the elimination of all fees while the case is on.
Step 2: legal notice to spouse
The petitioner spouse should ensure that the respondent gets proper notice of the divorce proceedings by serving the papers to the respondent. You can use any of the processes to serve your spouse.
Ask the respondent to accept the divorce petition copy by mail. The respondent must then sign a “Notice and Acknowledgement” form and send it back to the petitioner, which he/she must file with the court as proof of service.
Use the services of the county sheriff where the respondent resides. The sheriff will deliver the documents to the respondent and then deliver the written proof that the documents have been served to the petitioner, which must be filed with the court with the summons.
Request the court for permission for “service by publication” or putting a notice of the divorce in the newspaper where the respondent resides if the respondent cannot be located.
Irrespective of the method of service, the court has rules about what documents must be given to the respondent. In the case of a joint dissolution, there is no need for service.
Step 3: Contested or uncontested?
Montana uncontested Divorce (Low Costs)
When both spouses agree on all the main issues of the divorce like:
Child custody, parenting and where your children will live after the divorce
Medical expenses, health and dental insurance and child support
Division of assets and debts
Tax deductions and exemptions
Alimony, and
Any other issue.
In Montana, there are 2 types of divorce – joint dissolution and divorce by default.
Joint Dissolution
Your spouse and you are co-petitioners in a joint dissolution and an agreement is reached regarding all the issues before the divorce case begins. The divorce petition and all the documents pertaining to the divorce are prepared jointly by both spouses. Joint dissolution is very simple and quick.
Divorce by Default
If the respondent spouse does not submit an “answer” in response to the divorce petition, after 20 days, the respondent is considered to be “in default”. The court will schedule a final hearing and if the requests of the petitioner are fair the final divorce order will be signed by the judge. This is quite a common practice where the spouses cannot agree at the beginning on the various issues by coming to an agreement later on.
Montana contested Divorce (High Costs)
If both the spouses are not able to agree on some or all the terms of the divorce, then it is a “contested” divorce and will go to trial. The case will be then heard by a judge who will listen to the testimonies and evidence presented by both parties and then take decisions on the disputed issues. Usually, contested divorces take a long time and are also very expensive.
If you can avoid going this route it is recommended in an effort to make the process as smooth as possible. If you are unsure if you would need an attorney or not, ask a divorce lawyer online.
Step 4: DIY or get a lawyer?
DIY divorce Papers (Slower & Least Costly)
A “Do It Yourself” divorce is only recommended if you have some time and your divorce partner is willing to help out. Because you have less help when filing your paperwork, this increase the time and sometimes the frustration of filing your paperwork.
If you go this route, the first thing you must do as a petitioner is to find the correct documents and complete them. The website of the Montana Judicial Branch has packets of divorce forms for joint dissolutions and also for simple divorce without any disputes. There are forms for couples without children and with children.
The website provides fill-in forms and guides and you must choose the correct packet as per your situation. Each packet has detailed instructions which must be followed precisely. Make sure that you complete the forms carefully, neatly and correctly. If you make any mistakes, then the divorce can be delayed.
You can get clarifications from the court clerk; however, you must remember that they cannot offer any legal advice. If you have any specific queries, you can consult a family lawyer or for free legal advice, check Montana Law Help.
Divorce cases are usually started in the district court. Montana has 56 district courts and there are 22 judicial districts. It is vital that you file your divorce documents in the correct district court. You can click here to identify the judicial district and counties served by the Montana Judicial Branch. You are responsible for filing your papers in the correct court and if you file it in the wrong place, your divorce case can be dismissed or transferred and you will have to start all over again.
Online Divorce Services (Fastest & Inexpensive)
If you decide to go the self-representation route and do not want the assistance of a divorce lawyer, but you are confused about how to fill out the necessary forms, you can then make use of an online divorce service.
All you need to do is simply answer some question regarding your marriage and filled out forms will be provided to you by the online service as per the state requirements and all you need to do is take the forms and file them with the court with the appropriate filing fee.
The online service will also provide instructions about what you should do. This is extremely convenient because, with the payment of a small fee, you get the convenience of fully-prepared ready-to-use documents. If you want to go this route, try our favorite provider 3StepDivorce and get started for $84.
Attorney Divorce Trial (Longer & Expensive)
In case both parties are not able to agree about the key issues of the divorce, then there will be a divorce trial where a judge will hear your case. In this situation, both your spouse and you must hire a divorce attorney to present your case and safeguard your interests. Usually, a trial is expensive and also takes very long, so if you can avoid this, try your hardest to do so.
Step 5: The major issues
Montana Property Division
The marital property will be divided equitably since Montana follows “equitable distribution”. If both the spouses are not able to agree about the property, then the court will decide the property distribution based on the following factors — length of marriage, prior marriage of either spouse, age, station, health, sources of income and occupation, employability and vocational skills, estate, liabilities and needs of each spouse, custodial provisions, opportunity for future income and capital assets of each spouse, etc.
The court will also consider the dissipation of value or contribution to the respective estates and contribution of each party to the family or as a homemaker.
Alimony / Spousal Support
In deciding the spousal support, the court will consider the following:
Financial resources of the spouse seeking maintenance and marital property apportioned to him/her. The ability to meet the spouse’s requirements independently and also the provision for the support of the child living with the spouse.
Time needed to get sufficient training or education for the spouse seeking maintenance to get suitable employment.
Standard of living of both spouses when they were married.
Length of the marriage.
Age of the party seeking maintenance.
Physical and emotional condition of the party seeking maintenance.
Ability of the party paying maintenance to meet his/her requirements when meeting the needs of the spouse seeking maintenance.
Child Custody Laws
When determining the child custody and parenting plan arrangements, the court will take a decision keeping the best interests of the child in mind. It will consider the following factors:
Parent/parents’ wishes.
Relationship and interactions of the child with each parent, siblings and any other significant person affecting the child’s interests.
Adjustment of the child to the school, community and home.
Physical and mental health of all parties involved.
Physical abuse or threat of abuse of one parent against the other parent or the child.
Chemical abuse or dependency of either parent.
Continuity and stability of care.
Child’s developmental needs.
Any other factors.
Child Support
The child support obligation is calculated as a percentage of the income of the parent who does not have the custody of the child and who has the obligation of supporting the child by using the Percentage of Income formula.
The court will consider the following factors before it determines the child support obligation:
Age of the child
Child’s financial resources
Parents’ financial resources
Standard of living the child would have had if the marriage did not end
Emotional and physical condition of the child
Medical and educational needs of the child
Cost of daycare
Parenting plan ordered
Any other factors
Step 6: Finalizing your divorce in Montana
When the papers are served to the respondent and there is no answer for more than 21 days, then the petitioner can request for a default hearing. In the case of a joint dissolution, there is no requirement to wait and the co-petitioners can get a final hearing date just as they file the joint petition with the court.
The petitioner or the co-petitioners will provide testimony by answering questions of the judge. There is no compulsory requirement for the respondent to be present although, she/he can appear.
And, if the judge finds everything reasonable and fair, he/she will sign the divorce order. The petitioner must then brief the respondent about the happenings and ensure that he/she receives the final order copy.