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|Dissolution of Marriage|
What are the Grounds for Dissolution of Marriage in Montana?
Montana has a "no fault" divorce law. To grant a divorce, the court must determine that: a) the couple has lived separately and apart for more than 180 consecutive days before the petition for divorce is filed; or b) there is serious marital discord between the parties and no reasonable prospect of reconciliation.
The legal term for divorce in Montana is "dissolution of marriage." While dissolution ends the marriage, there may be ongoing legal agreements between the couple, to include custody, child support, and maintenance.
What if Only One Spouse Wants a Dissolution?
There is no way to prevent a dissolution in Montana if one spouse desires the dissolution and the other spouse does not.
What's the Difference Between Legal Separation and Dissolution?
If legally separated, the parties live separately, but remain legally married. The couple's rights and duties to each other are determined in a decree of legal separation. The legal procedures are almost identical to those for dissolution. Once legally separated for six months, either party may ask the court to convert the legal separation to a dissolution of the marriage.
What are the Advantages of Having a Lawyer During a Dissolution?
A lawyer will be able to assist you in identifying the issues in your case. A lawyer will help you negotiate a fair settlement to avoid a trial. The lawyer will give you up-to-date advice regarding the laws on parenting, spousal and child support, and property divisions. The lawyer will counsel you regarding the reasonableness of proposed settlement terms and what you might expect if the judge decides the case. If a settlement is reached before trial, one of the parties must still appear in court and present brief testimony to finalize the dissolution. If settlement is not reached, the lawyer will prepare your case for trial and represent you in the courtroom. A lawyer will properly prepare all paperwork in connection with your dissolution.
Should the Same Lawyer Represent Both Spouses?
No. There are conflicts of interest between spouses at the time of dissolution. A lawyer should only represent one party.
How Much Does a Dissolution Cost?
Ask your lawyer about fees and costs during your first meeting. The total cost of dissolution is determined by the complexity of the matters to be resolved and the number of court appearances required. Cases which require hearings, trial, or appeal are more expensive. Your lawyer will charge you for his or her hourly time, plus any additional administrative costs that may arise. Hourly rates may vary, depending upon the skill and experience of the attorney and their staff. There may also be additional costs for service of process, expert witnesses, appraisals, certified copies, depositions, and other expenses.
Who Makes the Decisions about Parenting, Child Support, Property Division, Maintenance, and Other Matters?
Most divorcing couples resolve their differences and reduce their agreements to writing with the assistance of lawyers. Any issues they cannot resolve are decided through mediation or a judge. There are no juries in dissolution cases.
Who Determines What Settlement I Accept?
You have the final decision-making abilities when it comes to settlement terms. Your lawyer is required to submit all settlement proposals to you for your review.
What is a Marital Settlement Agreement?
A marital settlement agreement is a recitation of terms mutually agreed upon by parties prior to dissolution. It is considered to be a binding contract and, once it is approved by a judge, it can only be modified under certain circumstances. It contains provisions for division of property and debts, maintenance, child support, and parenting.
What is Maintenance?
In Montana, spousal support is called maintenance. In the past, it was called alimony. Either spouse may receive maintenance. Awards are determined by financial needs and resources, workplace skills of both parties, the presence of minor children in the home, the standard of living enjoyed during the marriage, the length of the marriage, the age and health of the spouse seeking maintenance, and the ability of the other spouse to pay. The court may award property in lieu of maintenance. Unless otherwise agreed, maintenance stops upon the remarriage of the recipient or the death of either party. Under certain circumstances, maintenance may be raised or lowered after the original award.
How is Property Divided?
Montana Law recognizes that spouses who work as homemakers and spouses who work outside the home both contribute to the property acquired during the marriage. Property is to be divided equitably between the parties upon dissolution. An equitable dissolution is not always a 50/50 distribution. Several factors, including the length of the marriage, skills and relative abilities of the parties, needs and opportunities to acquire future assets, and other criteria are considered. The court can apportion all property owned by either or both spouses, regardless of how the title is held, as well as when or how it was acquired. The court will not consider marital misconduct in dividing property. There are special rules for property received by gift or inheritance and property acquired in pension or retirement plans. If the parties divide their property by agreement, the judge will review the agreement. The division of property will not be reopened, except under extremely limited circumstances. When a dissolution action is commenced, a restraining order is automatically imposed on all marital assets. Both parties must fully disclose to each other all of his or her assets and liabilities within sixty days of the commencement of the proceeding. Failure to disclose an asset may allow the court to reopen the case for up to five years after a fraudulently concealed asset is discovered.
Who Pays the Debts of the Marriage?
If the parties cannot divide their debts by agreement, the court will. The parties' agreement or the courts decree allocating joint debts, however, is not binding on a creditor (unless the creditor agrees). If a spouse fails to pay, a creditor may sue the other spouse. The spouse who pays the creditor must seek reimbursement from the spouse who was supposed to pay the joint debt.
How are Child Issues Resolved?
Beginning October 1, 1997, the words "custody" and "visitation" no longer appear in the statutes governing dissolution of marriage, they terms "Parenting" and "Parental Contact" are now used. The terminology was changed to eliminate disputes between parents the words used, and focus the attention on the best interests of the children. Parents must now file a "Parenting Plan." The forms used may identify virtually every potential parenting issue that could arise. If parents cannot decide how to resolve a specific issue, the court will make a determination based on the child's "best interests." This new methodology and terminology will eliminate non-contested issues, specify contested issues, and focus attention on those contested issues.
Are There Guidelines to Determine Child Support?
Montana has guidelines to determine child support based upon the total income of both parents. Daycare, insurance, and medical costs are included in the computation. The guidelines allocate the amounts to be paid by each parent, taking into account financial resources of the parents and children, the children's needs, and the standard of living that the children would have enjoyed had the parents stayed married. Child support continues until a child is emancipated or graduates from High School, but no later than the child's 19th Birthday, unless either the parties agree or the court orders otherwise. Some parents agree to review support periodically. In some instances, child support may be determined in an administrative proceeding. Montana law requires that all divorce decrees address health insurance coverage for the children. Child support must be paid automatically from a parent's wages, unless good cause exists to waive automatic deductions. If you intend to move with your children, you must give the other parent a minimum of 30 days written notice of your intended residential change. Notice must be served personally or by certified mail. Notice must include a revised parenting plan.
How Long Does it Take to Dissolve a Marriage in Montana?
You or your spouse must make your home in Montana prior to filing a petition for dissolution. A dissolution may be finalized twenty days after the other spouse is served with the dissolution papers, but it usually take much longer than twenty days. Generally, your lawyer can tell you how long it will take to get a dissolution after consideration of the issues in your case and the court's calendar.
What is Mediation?
Mediation is a voluntary process wherein parties attempt to find common ground to resolve their differences. A neutral third party works with the parties to assist in the direction. Lawyers may or may not be present. Mediation can occur at any time in the dissolution process. Mediation has several advantages, to include: cheaper expenses; the overall process is shorter in time than going to trial; and solutions are created by the parties, not the judge, and therefore have a higher chance of success. The court may require that parents participate in mediation to resolve disputes that arise under parenting plans. The Supreme Court also requires that all dissolution cases proceed to mediation at the beginning of the appellate process.
This information is intended to inform you about Montana Law generally, it is not intended as advice. You are encouraged to speak to an attorney regarding the specifics of your situation.