In Montana, under certain circumstances, you may have your marriage declared invalid. This declaration may be granted and applied either retroactively, back to the date of the marriage certificate, or non-retroactively from a date certain following the date of the marriage certificate. Mont. Code Ann. §40-1-402
Divorce/Dissolution of Marriage
A party seeking to end their marriage, may petition the district court for a dissolution of marriage, otherwise known as “divorce.” If the parties to the marriage are in agreement to all issues including the distribution of assets and debts and parenting, parties are allowed to file for a joint dissolution of marriage. Because there are often issues at controversy, one party to a marriage typically commences the dissolution process by filing a Petition for Dissolution of Marriage. In order to obtain an order dissolving your marriage, you are required to show that: your marriage is irretrievably broken and that either the parties have lived separate and apart for at least 180 days prior to the filing of the Petition, or that there is serious marital discord. In addition, at least one party must be domiciled within Montana for 90 days before filing the Petition. Mont. Code Ann. §40-4-104.
You may also file for legal separation in Montana. In order to have a district court grant a legal separation you must establish the same grounds as in a Petition for Dissolution. The primary difference between legal separation and dissolution of marriage, is that an Order of Legal Separation does not end your marriage. Neither party can remarry if legally separated. An order of legal separation can later be amended to dissolve the marriage. Sometimes, parties prefer this option when they are experiencing marital distress, but are not certain they want to end their marriage. Mont. Code Ann. §40-1-302.
If you are seeking a dissolution of marriage and there are children as a result of the marriage, you will also be required to file a proposed parenting plan and have the district court issue an order for child custody, visitation, child support, and any other matters related to your children. In dissolution cases involving children, these documents will be filed with the initial Petition for Dissolution or Legal Separation.
In addition, parenting actions are often commenced between parents who are not married. Another common parenting action occurs when one party seeks to amend an existing parenting plan. In parenting actions, many factors are considered by the district court. The primary factor is the best interests of the children. The criteria considered by district courts in final parenting plans is listed at Mont. Code Ann. §40-4-234.
Restraining Orders/Orders of Protection/Emergency Parenting Plans: A party may apply for a restraining order or an order of protection if they fear they are in “imminent danger or fear of bodily harm.” There may also be circumstances where a parent requires an emergency parenting plan to protect their child(ren). Such plans may include a requirement that a parent have limited, supervised parenting.
Couples preparing to marry may wish to have a prenuptial agreement prepared. Prenuptial agreements can cover : rights and obligations of the parties to property whenever the property was acquired; the parties’ abilities to control property; how property is disposed of/distributed in the event of dissolution of marriage; ownership rights in death benefits; and any other matter with regard to property and assets. Prenuptial agreements become effective upon marriage. Mont. Code Ann. §40-2-605 & 606.
At times, paternity may be at issue. Parties can petition the district court for a determination of paternity. Paternity needs to be established in order to determine child support obligations, as well as parental rights. Paternity may be scientifically determined by a DNA swab or blood test on the potential father and the child. There are other cases where a person may have parental rights to the child, even when they are not the child’s biological parent. If a person has a “parent child” relationship with a child that is not biologically theirs, Montana law provides recognition of that relationship and affords such persons rights in parenting proceedings. Mont. Code Ann. §40-4-211(4)(b)
Legal Name Changes
You may petition the district court to legally change your first, middle, or last name. Parents may also bring an action to change their minor child’s name.
At times, a parent may be unable to care for their child(ren). In these cases, a parent can agree to another party serving as a child’s legal guardian. In addition, if a person other than a parent wishes to be a child’s legal guardian, either with or without the parents’ consent, that person may petition the district court to be appointed the minor child’s legal guardian. You can receive a temporary guardianship of a child (last six months or less) or a permanent guardianship. Letters of Guardianship afford guardians full parental rights and the ability to make decisions on the minor child’s behalf. Permanent guardianships can only be dissolved upon the parents’ showing that the circumstances resulting in the guardianship have been resolved, or upon the parties’ agreement to dissolve the guardianship. Mont. Code Ann. §72-5-223.
Parties can petition a district court to legally adopt a minor child. An adoption proceeding may be agreed to by the biological parents (when the biological parents relinquish their parental rights and sign consent forms to the adoption). Adoption proceedings may also be contested (a parent’s consent is not necessary in order for a party to adopt a child). Adoption proceedings may take place between the biological parents and individual parties. Adoptions may also take place through state agency placement (Department of Family Services) or private adoption agency placement.
Grandparents may petition the district court for an order allowing contact with their grandchildren. This contact can be ordered over the objection of the child’s biological parent(s) if certain statutory criteria are met. Grandparent-grandchild contact will be ordered upon a showing of criteria including: parental unfitness and the child’s best interests.
Step parents may petition the district court to adopt the biological children of their spouse. Step-parent adoptions may be granted with or without the biological parent’s (the parent being divested of parental rights) consent. Step-parent adoptions do require the consent of the petitioning party’s spouse. Mont. Code Ann. §42-4-302.
Guardian ad Litem Investigations
In contested parenting cases, the parties may agree, or a district court may order, that a Guardian ad Litem be appointed to investigate the parties and make recommendations regarding parenting schedules, contact, and terms, as determined to be in the child’s best interests.
Representation of Parents in State Child Custody Cases
Parents facing an investigation by the Department of Family Services, or who have had their children removed from their home are entitled to a court-appointed attorney to represent them through all stages of the formal court proceeding. Parents may not qualify financially for court-appointed counsel, or may opt to hire private counsel rather than being represented by the Office of Public Defender.