Montana Divorce

Grounds are legally acceptable reasons for divorce. In Montana, neither spouse is required to accuse the other of any fault or wrongdoing to be eligible for a divorce. To file for divorce in Montana, you or your spouse can file a petition stating that your marriage is “irretrievably broken,” which means there is no reasonable potential for getting back together. The judge will decide that your marriage is irretrievably broken if:

• you and your spouse have lived separate and apart for more than 180 days before filing for divorce; or
• there is serious marital disagreement (discord) that negatively affects your or your spouse’s attitude about your marriage.¹

If you and your spouse agree about the breakdown of your marriage, the judge will determine whether your marriage is broken by looking at evidence of the above factors.²

If you and your spouse disagree about the breakdown of your marriage, the judge will have to determine whether in fact the marriage is irretrievably broken by also considering:

• the circumstances of your divorce; and
• any potential for reconciliation.³

The judge may continue your case for 30-60 days and suggest that you and your spouse go to counseling if you disagree about the breakdown of your marriage. At the next hearing, the judge will decide if your marriage is irretrievably broken.³

¹ MT ST § 40-4-104(1)(b)
² MT ST § 40-4-107(1)
³ MT ST § 40-4-107(2)

When a petition for divorce is filed, an ”automatic economic restraining order” will be issued by the court and served upon the respondent along with the divorce summons. The order will immediately prohibit both parties from:

1. transferring, hiding, putting a lien or mortgage on (encumbering), or getting rid of (disposing of) any marital property without the written consent of the other party or permission from the court;
2. canceling jointly held credit cards; 
3. terminating the other’s spouse’s authority to use a credit card;
4. racking up (incurring) unreasonable debt except if it is to cover permitted expenses; 
5. making any withdrawal for any purpose or borrowing from any deferred compensation, retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan, or from any individual retirement account or Keogh account except if it is to cover permitted expenses;
6. withdrawing or borrowing any part of the cash surrender value of any life insurance policies on either party or any of their children except if it is to cover permitted expenses;
7. changing the beneficiary designation on any life insurance policies on either party or their children or on any other account or asset;
8. canceling, changing, or allowing to lapse any existing insurance policies for property, life, automobile, or health that insures the parties, their children, or their property;
9. negotiating any instrument, check, draft, income tax refund, insurance payment, or dividends payable jointly to the parties or individually to the other party without the personal signature or prior written consent of the other party;
10. opening, turning away (diverting), or withholding mail, e-mail, or other electronic communications that is addressed only to the other party; and
11. intentionally damaging or destroying joint property or property of the other party while the divorce is ongoing, including any electronically stored materials, electronic communications, or financial records without written consent of the other party or a court order.¹

Each party is allowed to do any of the following:

• create, change (modify), or cancel (revoke) a will;
• cancel (revoke) or change a power of attorney; or
• create an unfunded revocable or irrevocable trust.¹

¹ MT ST § 40-4-126(1)

While divorce laws vary by state, here are the basic steps:

• First, you must meet the residency requirements of the state in which you wish to file.
• Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
• Third, you must file divorce papers and have copies sent to your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)
• Fourth, if your spouse disagrees with anything in the divorce papers, he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does not disagree with anything, he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
• Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?