The dissolution of marriage is a trying circumstance and hiring a professional divorce attorney is critical at a time like this. Learn more about the process of divorce in Montana and how a divorce attorney can help.
General Process With Your Divorce Attorney
- Petition for Dissolution
To start off the divorce, one of the spouses gets a divorce attorney, who prepares a Petition for Dissolution declaring why the “Petitioner” wants a divorce and how he or she wants to settle financial, parenting, and other issues.
- File Documents
The divorce lawyer files these documents with the court.
- Petition Served
The Petition is served on the other spouse, together with a Summons that requires that spouse’s response.
- Response is Filed
The served spouse has to file a written “Response” with the court within twenty calendar days after being served. The Response says whether or not the served spouse agrees with the Petition and how the Respondent would prefer to deal with the divorce issues. If the Respondent doesn’t file a Response to the Petition, the Judge assumes he or she agrees to its terms and enters a Default against the Respondent. A Decree hearing will be set without the Respondent’s participation.
- Documents are Exchanged
The couple then exchange documents and information through their respective attorneys, on issues such as property and income. By examining this information, the couple, their attorneys, and the Judge can decide how to divide up property and how to deal with parenting (formerly called “custody”), child support, and maintenance (formerly called “alimony”).
- Potential Resolution
Sometimes, the couple can voluntarily resolve all their issues through negotiation by their attorneys; if so, the timeline is much shorter.
- Settlement Filed
If a settlement is reached, the settlement agreement documents are filed with the court, and a Decree hearing is then set at which only one party has to testify.
- Final Decree of Dissolution
If both parties have agreed and the terms of the settlement are deemed by the Judge to be acceptable under Montana law, the Judge will issue a “Final Decree of Dissolution” that includes the terms of the agreement(s) reached. If the Judge does not approve it, or if the couple does not reach an agreement, the case will go to trial, which in Montana is without a jury.
- If Resolution is Not Reached…Trial
At trial, divorce attorneys present evidence and arguments for each side, and the Judge will decide the unresolved issues, including parenting arrangements, child and medical support, spousal maintenance, and property/debt division. Once the Judge has reached his or her decision, the Judge will grant a dissolution.
Dissolution of Property In Divorce
For the division of property in dissolutions of marriage, determinations are made based upon an equitable division of property. Division of property is an additional issue in Dissolutions of Marriage (Divorces).
Montana courts have jurisdiction over all property of the parties to a dissolution, regardless of the origin of the property or in whose name it is titled, and will equitably divide the property between the parties.
In making an equitable division, Montana courts will often first award premarital property and inheritances to the person who originally owned the property. All remaining property is then divided equitably, with a common benchmark of an approximately 50/50 division of the core, “joint” marital property.
Parenting Plan (Child Custody) In Divorce
Aside from the distribution of marital assets and obligations, the other main function of the Judge is to create a parenting plan for child custody.
Judges base their decisions as to how to allocate parenting time on a set of statutory factors formulated to promote the “best interest” of the child, so the decisions can vary drastically from case to case and Judge to Judge.
Cardinal Rules For Child Custody Parenting Plans:
- “The best interest of the child” is the guiding principle in child custody cases. Because the best interest of the child means something different to every participant in a divorce case, don’t presume your point of view is the same as that of the Judge.
- Always refer to the children as “our” children, not “my” children or “my” child.
- Never, ever, ever, talk disparagingly about the child’s other parent to or near one of your children. If your child asks you a question and the honest answer requires you to address a less than flattering aspect of your spouse, speak to a professional about how best to respond.
- The Judge knows that you and your spouse may differ in your philosophies of how to raise the children. The Judge realizes that you have differences in how rules are enforced, how you punish the children, and how you treat the children. The Judge does not intend to impose one parenting style over the other, so try to communicate and work with your soon-to-be-ex-spouse.
- If you believe that you are going to be in a contested parenting case, you need to see a divorce attorney experienced in contested parenting cases immediately, so this person can give you advice on what to do, and just as importantly, what not to do.
- Judges look disapprovingly at restricting access to a child. Possibly the biggest reason a parent would win custody over the other is if the other parent had the bulk of time with the child and he/she then restricted the child’s access to the parent.
- Introducing new boyfriends and girlfriends into the life of a child before being divorced is potentially dangerous and damaging to your child and therefore to your parenting case. Short answer: Don’t do it!
- Never deny parenting time because you have not received the child support check. In the eyes of the Judge, the two are unrelated and it is unreasonable to deny contact even to a nonpaying parent.
- Do not let off steam by venting to your children’s teachers, coaches, etc., about your ex. You do not want to appear as the angry ex in court.
- Parenting is about CHILDREN, not fault!