What is Legal Separation in Montana?
In Montana, legal separation is a legal process that is quite similar to divorce, but with key differences that are important to understand. While a divorce terminates the marriage relationship and offers a means to end a marriage, legal separation provides an alternative for some couples that may not want to end the marriage at that time. In that regard, legal separation does not lead to the dissolution of the marriage, just the dissolution of cohabitation. As a result, the couple is still married even though they no longer live together. Legal separation in Montana can be beneficial for a variety of legal and personal reasons. In Montana, legal separation allows couples to divide assets, debts and custody through the family law court system without advancing to divorce. This allows the couple to explore whether or not they can repair the relationship by providing them with more time. At the same time, while the legal separation is in place, the couple does not have to live together, which can lead to improved morale and more positive relationships within the family. In some cases , legal separation can even be the preferred option to divorce. With legal separation in Montana, the couple must have a separation agreement, which is a contract that outlines the couple’s agreements on split property, custody, support and other issues. In some cases, the separation agreement can be more complicated than a final divorce because it must address issues in the present and the future. Without the proper documentation in place, custody disputes and other legally binding issues could arise later on. As noted above, legal separation in Montana does not terminate the marriage. In that sense, the couple will have to wait six years to file for divorce after the legal separation, unless one or more of the parties agree otherwise. Thus, the separation is intended to give couples time to see if they really want to divorce, and to give them time to work out custody and other related issues. The separation can occur either before or after filing for divorce. In many cases, couples will try to live separate lives for a year and see if it leads to a real divorce or if they can work things out in a boon for their marriage.
Who Can Get Legal Separation in Montana?
To seek legal separation in Montana, a couple must meet specific eligibility criteria. While legal separation is not a requirement to get a divorce in Montana, it is an option that some people in the state will choose, which is why knowing if you qualify is critical. The first criterion is residency. One or both spouses must have resided in Montana for at least 90 days before filing for legal separation. Simply vacationing or living temporarily in Montana does not qualify for this reason. The second criterion requires at least one spouse to have lived in the state for at least 180 days immediately preceding the filing of either party’s petition seeking legal separation. For the purposes of this rule, a person who is in the armed forces and stationed outside of the state is considered a resident of the state as long as he or she grew up in Montana and has no intent to reside elsewhere when his or her military service ends. The third criterion stipulates that the petitioner (the person filing for legal separation) must have been residing in Montana for the duration of the separation. In short, you cannot take a six-month vacation to another state or country, then come back to Montana and file for this purpose. You must be physically present in the state the entire time. Finally, you must be legally married to your spouse at the time of filing the petition. This means the marriage must be valid, recognized and licensed in Montana. In short, you must be married to your spouse when you file for legal separation, as opposed to legally separated from him or her. While the decision of whether or not to file for legal separation is a complex issue that only you can determine, knowing if you’re eligible is half the equation. Once you determine you qualify, you can begin the process of filing.
The Process of Getting Legally Separated in Montana
A legal separation can be established through a straightforward process in Montana. It begins with one spouse filing a petition for separation with the local court, after which the other spouse is served with a copy of the petition. It’s important to note that the laws governing divorce and legal separation in Montana are the same, and the court treats a legal separation in the same way it would a divorce. The difference, however, is that a legal separation is not final and, if neither party fails to convert the order into a divorce, then some or all of the terms established by the order for legal separation can be amended later.
Upon reviewing the petition, the presiding judge will issue a series of temporary orders on issues such as child custody, child support and spousal support (if applicable). This temporary order remains in effect until either the parties reconcile, the court is notified that one or both parties have moved out of state or divorce proceedings are finalized. After the issuance of the temporary orders, the parties go through a process that is similar to the one for a divorce. This can include interviewing with a mediator to settle issues such as custody of children, parenting time and child support. The court will then issue a final order that addresses all marital property and debts, custody and parenting time for children, the amount of child and/or spousal maintenance to be awarded and costs of the divorce.
The court may award sole or shared parental responsibility and other joint, primary or sole custody arrangements. The court will consider what is best for the children involved in the divorce or separation when making a ruling on custody arrangements. The amount of child support that a parent is required to pay will depend on multiple factors, including the parents’ income, the number of children involved and the amount of parenting time afforded to each parent.
Assets gained during the marriage are subject to equitable distribution by the court, but some assets are exempt from consideration, such as an inheritance, property acquired before the marriage and personal gifts. Property distribution is calculated by considering the age, health, employability and financial circumstances of the parties, among other factors. The final decree for legal separation, like the decree for a divorce, will approve or deny a party’s request for temporary or permanent spousal maintenance.
Spousal Support and Other Money Issues Related to Legal Separation
Financial Implications of Legal Separation in Montana
Like divorce, legal separation in Montana involves the division of assets and debts. The parties’ estate shall be divided in accordance with the factors set forth in Montana statute, at Section 40-4-202, that are typically applied to divorce actions. The primary factor in the division of property is the length of marriage, and the types of assets and debts already obtained during the marriage, with a goal of achieving a "fair, just, and equitable result". This does not mean the assets and debts will be split 50/50, necessarily, but rather that they will be "equitably" divided. Equitable division of the estate and debts means that if the parties have invested in assets that are worth certain values, and have debts worth certain values, then the division of the entire estate can mean that one party keeps all assets valued at $100,000 and the other has all debts valued at $100,000. Without accounting for any assets or debts being toeing the line of $100,000, each party has a just and fair outcome with assets totaling $0; however, one party has made the contributions to build the substantial asset value, while the other has made the contributions in incurring the debt. Your particular situation is unique to your professional lives, as well as the specific numbers involved.
The parties may not include the division of future interests in a legal separation at the time of the dissolution; however, it is common practice to include the division of retirement accounts and life insurance proceeds (for example) for one another’s benefit in the event that something tragic should happen to the other party.
Montana statute also requires that spousal maintenance may be requested in a legal separation, and courts have the jurisdiction in law and equity to order spousal maintenance.
Legal separation has the same effect for tax purposes as divorce, and nothing should change in the way you file your taxes. Child support payments and spousal maintenance received by either party can be taxable income for the other party.
Child Custody and Child Support Issues During Legal Separation
When you are legally separated, the amount of parenting time you have with your child can be determined by mutual agreement or by the Court based on the best interests of your child. Whether there is an agreed parenting plan or a strictly enforced determination from the Court, it is essential to keep updated parenting schedules and to follow the scheduled plans. Parenting plans are not final and can change as families grow or due to other extenuating circumstances. In even the most conflict-free parenting situations, the parenting plan is the ultimate enforcement tool to ensure safe and regular reunification time between a parent and a child. The Child Support Guidelines provide the assessment tool to ensure that both parents equally share the responsibility of financially supporting their child. Parents can agree to a child support amount or the Court can determine the amount. In Montana, the Child Support Guidelines are calculated based on three primary factors: the number of overnights spent with each parent, the after-tax income for each parent, and the number of children in need of support. Much like parenting schedules, the child support amount can change with shifting parenting time or financial conditions of the different households.
Key Components of a Legal Separation Agreement
In a separation agreement in Montana, spouses will typically include the dates of separation, the names, ages, and birth dates of all children and the provision for that separation affecting each child. Further, in a separation agreement, you will include what period of time the separation is intended to last. In a separation order, your termination of the separation will not impact the period of time it is, and therefore , will state as "until further notice." Under the separation agreement, the couple can include which spouse is responsible for which debts, property or assets (including business debts, business interest or personal bills). Also included may be the distribution of property, child support obligations and health insurance responsibilities. As with any family related agreement, the separation agreement can be used as the basis of a court order.
How to Change a Legal Separation into Divorce
A legal separation which is sought in Montana is not a final order of dissolution of the marriage. If one or both parties wish to convert the decree to an actual dissolution of the marriage, that is also possible. Such a conversion only requires a new filing rather than a two year waiting period. The process of getting the legal separation converted into a divorce is essentially the same as filing for a dissolution of marriage in the Montana Courts. One party must file a petition for dissolution and then serve the other party. The other party can either respond to the petition or simply fail to respond. If a petition is filed in the Court in which the original proceedings were filed, the process will be transferred to the Family Law Department in that District Court. If a petition is filed in the wrong court, the matter will be transferred back to the Family Law Court in the County in which the original proceedings took place. If the respondent answers the petition for dissolution, the case will proceed through full litigation as any case would. If the other party does not answer the petition, a default judgment may be entered.
The Advantages and Disadvantages of Legal Separation in Montana
Pros:
Preserving Religious Doctrines: For certain Montana residents, particularly those belonging to religious groups that do not condone divorce, legal separation may offer a middle ground. A legal separation allows for living apart while remaining legally married, consistent with the requirements of faith. Maintaining Legal Status: In some cases, people prefer legal separation to divorce in order to keep benefits that require a legal marriage. This might apply to the military, Social Security and insurance benefits. Time for Reconciliation: For some couples, living apart may be an effective way to maintain emotional independence while determining if reconciliation is possible. In this situation, the Family Law Courts of Montana will insist in addition to the one-year separation, that one of the spouses attend counseling. An agreement for reconciliation may also eliminate the requirement for a one year separation. Access to Spousal Support: A legal separation can allow a spouse to receive support from the other without the stigma of divorce. Cons: Perpetuating Conflicts: For some people, legal separation allows them to avoid "setting the groundwork" for steps that could lead to a more permanent situation. In many cases, however, a legal separation only extends conflict and the parties inevitably divorce. Estrangement from Benefits of a Legal Divorce: People who opt for legal separation will not be relied upon by the state or federal government for disposition should one spouse die. Many benefits are contingent upon marital status and separation from a spouse precludes access to those benefits, should the spouse be the sole beneficiary. Difficulty of Resolving Issues: Legal separation allows Montana residents to pursue a change in marital finances or status without affecting the legal status of the marriage. However, truly resolving the issue often cannot occur while the couple is only separated.
Legal Help and Resources
Legal separation in Montana involves a complex legal process that requires an awareness of both state and federal laws. While a legal separation gives married couples space to either get back together after some time or proceed to a divorce without the worry of using this time against them in a litigation, it is still a big legal step with many implications to consider going forward. Many disagree and question whether it is worth the time, expense, and commitment to separate rather than to pursue divorce at this time. For many couples, however, they are readier to pursue divorce than to apply for legal separation , a process that is almost identical to divorce.
If you are thinking about applying for legal separation, you need as much legal assistance and knowledge as possible. Legal aid organizations can provide full services, as do many private law firms. In fact, Montgomery Law has helped clients from all walks-of-life on matters related to separation, divorce, mediation, and other family law issues. From counseling to mediation, our team has worked with legal clients throughout the state to provide professional assistance on important legal matters.