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Montana Uncontested Divorce

This information is an overview of the uncontested Montana divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Montana.

To file for a divorce in Montana, one of the spouses must be a resident of Montana for 90 days prior to the filing, and the action should be filed in the county where that spouse has been a resident for the 90 days.

Montana is a No-Fault state, which means "the 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 or 2) living separate and apart for 180 days prior to the filing." Divorce actions are called dissolutions.

Montana permits a legal separation under the grounds of irretrievable breakdown when one of the spouses has been a resident of the state for 90 days.

Actions are filed in the District Court, which is the county court. The spouse filing the action is the Petitioner; the spouse responding is the Respondent. When both spouses file jointly under the stateís simplified or summary divorce law, they are Co-Petitioners.



Montana permits a summary dissolution of a marriage for couples, provided they meet a number of conditions, as follows:

> One spouse or the other has lived in Montana for at least 90 days before the couple file a Joint Petition for Summary Dissolution;

> Both spouses agree that irreconcilable differences have caused the irretrievable breakdown, and both agree that the marriage should be dissolved;

> The wife is not pregnant and a) there are no children from the relationship, or b) the parties have an agreed-upon parenting plan and child support and medical support have been determined for all children of the marriage;

> Neither spouse has any legal interest in any real estate (except the lease on a residence occupied by one spouse so long as the lease terminates in one year and does not have an option to purchase);

> There are no unpaid, unsecured debts in excess of $8,000 incurred by either or both parties after they married;

> The total fair market value of the coupleís assets is less than $25,000;

> The couple have negotiated a separation agreement regarding the division of assets and payment of bills;

> Each spouse gives up the right to maintenance;

> Both permanently give up the right to appeal the terms and conditions of the dissolution;

> Both agree to they do not want any help from the county conciliation court;

> Both have read a state pamphlet about summary dissolution;

> Both indicate they want the court to end the marriage.

A hearing is held some time after 20 days from the date the joint petition is filed. Both spouses must appear. If the couple meet all the required conditions, the district court judge enters a final judgment dissolving the marriage. Without a doubt, a summary dissolution is the least expensive and least problematic way to end a marriage in Montana.

A couple who cannot meet the requirements for a summary dissolution may file for a Joint Dissolution (no children) or a Joint Dissolution (with children). All joint dissolutions are by definition uncontested.

When filing for a Joint Dissolution (no children), the following forms are required:

> A Joint Petition for Dissolution, which is signed by both spouses;

> A Final Declaration of Disclosure of Assets, Debts, Income and Expenses, which profiles the finances of the spouses, individually and jointly;

> Request for a Hearing and Order, which sets a date for a hearing;

> Consent to Entry of Decree, which certifies agreement with the action by both spouses;

> Findings of Fact, Conclusions of Law, and final Decree of Divorce, which also includes the separation agreement of the couple;

> Notice of Entry of Decree, which certifies that the decree has been handed down;

> Vital Statistics Form, which records the dissolution with the state.

If both spouses are planning to attend the final hearing, the Consent to Entry of Decree is not required. At the hearing the judge reviews the cases, asks a few routine questions, and then signs the dissolution decree.

When filing a Joint Dissolution (with children), all of forms required for a Joint Dissolution (no children) are required, plus the following:

> A Proposed Parenting Plan, which establishes the terms and conditions of custody and visitation;

> A Notice of Filing Child Support Guidelines Financial Affidavit, which stipulates child support;

> A Notice and Acknowledgment to Child Support Enforcement Division, which stipulates third-party enforcement of child support.

As is the case with a Joint Dissolution (no children), when both spouses are planning to attend the final hearing, the Consent to Entry of Decree is not required. At the hearing the judge reviews the cases, asks a few routine questions, the signs the dissolution decree.

The following forms must be used when one spouse files to end a marriage when there are no children:

> A Petition for Dissolution, which is signed by him or her;

> A Petitionerís Preliminary Declaration of Disclosure of Assets, Debts, Income and Expenses, which is a profile of his or her finances;

> A Summons, which puts the respondent on notice of the action, and a Temporary Restraining Order, which prohibits the parties from dissipating financial assets subject to distribution.

Later, the Defendant must file these forms:

> a Notice and Acknowledgment of Reciept of Summons and Petition for Dissolution;

> A Praecipe, which is an order to the clerk of the court commanding the filing of the case.

A Respondent who will accept the service of process may be served by mail. In this case, he or she receives the Notice and Acknowledgment, the Petition for Dissolution, the Summons, the Petitionerís Preliminary Declaration of Disclosure of Assets.

Service may also be done by the Sheriff in the county of residence. In this case, the following forms are sent to the Sheriff for delivery: the Praecipe, Summons (original and one copy), Petition for Dissolution, and Petitionerís Preliminary Declaration of Disclosure of Assets, Debts, Income and Expenses.

If service by mail and by the sheriff fail to locate the Respondent, or if he or she will not accept service, the Plaintiff must make a diligent search for him or her. This involves a good faith effort to locate the spouse through exhaustive checks of telephone books, friends, relatives, former employers. If this fails, the Plaintiff must prepare an Affidavit for Publication of Summons, an Order for Publication of Summons, and a Summons for Publication. The summons is then published in a newspaper.

A Respondent who files an answer within 21 days of the date of service may be preparing to contest the dissolution. Contested dissolutions require all the forms used in uncontested actions, but their trajectory is impossible to predict because both the Plaintiff and the Respondent jockey for tactical and strategic advantages in the event the action goes to trial. A Respondent may file a counter-petition challenging some or all of the allegations in the Petition.

If after 21 days, the Respondent has not responded, the Plaintiff prepares the following documents:

> Findings of Fact, Conclusions of Law, and final Decree of Divorce;

> Request of Entry of Default, Application for Default Judgment, and Waiver of Final Disclosure Requirements;

> Entry of Default, which orders the default judgment;

> Request for Hearing and Order, which sets the final hearing;

> Vital Statistics Form, which records the dissolution with the state.

A Dissolution of Marriage (with children) requires all of the forms for a Dissolution (no children) plus the following:

> A Proposed Parenting Plan, which describes the terms and conditions of custody and visitation;

> Notice of Filing Child Support Guidelines Financial Affidavit, which describes child support;

> Notice and Acknowledgment to Child Support Enforcement Division, which stipulates third-party enforcement of child support.

Service is identical to the route for a Dissolution (no children). If the Respondent cooperates, he or she receives the Notice and Acknowledgment of Receipt of Summons and Petition for Dissolution, Summons, Petition, Proposed Parenting Plan, Petitionerís Preliminary Declaration of Assets, Debts, Home, and Expenses, Notice of filing Child Support Guidelines Affidavit and Notice of Acknowledgment to Child Support Enforcement Division. If he or she is serviced by the sheriff, the Respondent receives Praecipe, Summons, Petition for Dissolution, Petitionerís Preliminarily Declaration of Assets, Debts, Home, and Expenses, Notice of filing Child Support Guidelines Affidavit and Notice of Acknowledgment to Child Support Enforcement Division.

A Respondent has 30 days after the Entry of the Divorce of the Decree to appeal it.