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Montana Information

Selected Family Law Sections of the Montana Code

40-4-107. Irretrievable Breakdown:

  1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken or one of the parties has so stated and the other has not denied it, the court, after hearing, shall make a finding whether the marriage is irretrievably broken.
  2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation, and shall:
    1. Make a finding whether the marriage is irretrievably broken; or
    2. continue the matter for further hearing not fewer than 30 or more than 60 days later or as soon thereafter as the matter may be reached on the court’s calendar and may suggest to the parties that they seek counseling. The court at the request of either party shall, or on its own motion may, order a conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken.
  3. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.
  4. Nothing in this section shall be interpreted to affect the provisions of chapter 3 of this title, known as the Montana Conciliation Law.

40-4-130. Summary Dissolution — Conditions Necessary At Commencement Of Proceedings:

A marriage may be dissolved by the summary dissolution procedure specified in 40-4-130 through 40-4-136 if all of the following conditions exist on the date the proceeding is commenced:

  1. Each party has met the requirements of 40-4-104 with regard to dissolution of marriage.
  2. Irreconcilable differences have caused the irretrievable breakdown of the marriage, and both parties agree that the marriage should be dissolved.
  3. The wife is not pregnant and:
    1. There are no children from the relationship born before or during the marriage or adopted by the parties during the marriage; or
    2. The parties have executed an agreed-upon parenting plan and the child support and medical support have been determined by judicial or administrative order for all children from the relationship born before or during the marriage or adopted by the parties during the marriage.
    1. Except as provided in subsection (4)(b), neither party has any interest in real property.
    2. The limitation of subsection (4)(a) does not apply to the lease of a residence occupied by either party if the lease does not include an option to purchase and if it terminates within 1 year from the date of the filing of the petition.
  4. There are no unpaid, unsecured obligations in excess of $8,000 incurred by either or both of the parties after the date of their marriage.
  5. The total fair market value of assets, excluding secured obligations, is less than $25,000.
  6. The parties have executed an agreement setting forth the division of assets and the assumption of liabilities and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.
  7. The parties waive any right to maintenance.
  8. The parties, upon entry of final judgment of dissolution of marriage, irrevocably waive their respective rights to appeal the terms of the dissolution and their rights to move for a new trial on the dissolution.
  9. The parties have read and state that they understand the contents of the summary dissolution brochure provided for in 40-4-136.
  10. The parties desire that the court dissolve the marriage.

40-4-131. Joint petition — Filing — Form — Contents:

  1. A proceeding for summary dissolution of marriage is commenced by filing in the district court a joint petition in the form prescribed by the court.
  2. The petition must:
    1. Be signed under oath by both parties;
    2. State that, as of the date of the filing of the joint petition, each condition set forth in 40-4-130 has been met;
    3. State the mailing address of both parties; and
    4. State whether or not the wife elects to have her maiden or former name restored and, if so, state the name to be restored.

40-4-134. Final Judgment As Final Adjudication Of Rights And Obligations:

Except as provided in 40-4-135, entry of final judgment constitutes a final adjudication of the rights and obligations of the parties with respect to the status of the marriage and property rights and constitutes a waiver of their respective rights to maintenance, rights to appeal the terms of the dissolution, and rights to a new trial.

40-4-202. Division Of Property:

  1. In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
    1. The nonmonetary contribution of a homemaker;
    2. The extent to which such contributions have facilitated the maintenance of this property; and
    3. Whether or not the property division serves as an alternative to maintenance arrangements.
  2. In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.
  3. Each spouse is considered to have a common ownership in marital property that vests immediately preceding the entry of the decree of dissolution or declaration of invalidity. The extent of the vested interest must be determined and made final by the court pursuant to this section.
  4. The division and apportionment of marital property caused by or incident to a decree of dissolution, a decree of legal separation, or a declaration of invalidity is not a sale, exchange, transfer, or disposition of or dealing in property but is a division of the common ownership of the parties for purposes of:
    1. The property laws of this state;
    2. The income tax laws of this state; and
    3. The federal income tax laws
  5. Premarital agreements must be enforced as provided in Title 40, chapter 2, part 6.

40-4-203. Maintenance:

  1. In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
    1. Lacks sufficient property to provide for his reasonable needs; and
    2. Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
  2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
    1. The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
    2. The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
    3. The standard of living established during the marriage;
    4. The duration of the marriage;
    5. The age and the physical and emotional condition of the spouse seeking maintenance; and
    6. The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

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