Addressing some common divorce myths....

In a recent online article entitled: "Debunking Divorce Myths"  by David Popenoe, 10 common divorce myths are addressed.  While the information is interesting, and studies that have been completed on particular topics are discussed, it is information that each person can apply appropriate weight to, and take with a grain of salt.

Each person and marriage is different, and you never know what will happen in your own life.  If you have been wondering about particular myths you have heard, this is an article to consider.

Here is Myth #9 from the article:

"9: Marriage Ups and Downs"

"Divorce Myth: Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce."

"Fact: All marriages have their ups and downs. Recent research using a large national sample found that 86 percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier. Indeed, three fifths of the formerly unhappily married couples rated their marriages as either 'very happy' or 'quite happy.'"

What is a Qualified Domestic Relations Order (QDRO) in a divorce?

A qualified domestic relations order (hereinafter, "QDRO"), is a document used to divide retirement accounts.

This is a court order that the Judge will sign directing the plan administrator of the husband or wife's pension or 401(k) to distribute a portion of those funds to the other spouse.  (In Montana, how much the portion being distributed will be depends on a number of factors you should discuss with your lawyer.)

Retirement benefits that are accumulated during a marriage are considered to be marital property.  Generally, retirement benefits that are accrued before the date of marriage will be considered non-marital property, which will not be divided between spouses during a divorce.

This allows the funds to be transferred to the other spouse without incurring a penalty or tax payment.

The receiving spouse will ultimately receive his or her own separate account.  If the participant spouse has a traditional pension, the plan administrator will need to establish a separate pension benefit for the receiving spouse. If the participant spouse has a retirement savings in a 401(k) plan, a portion of the plan funds will be rolled over to the receiving spouse, with no tax and no penalty.

Your lawyer will draft the QDRO for you, and the plan administrator for your retirement plan will review it.

Some benefits are not able to be distributed between divorcing spouses, including social security benefits.

How can I keep my lawyer costs and fees down in a divorce case in Montana?

I believe we are all looking for ways (and needing ways) to save money.  Especially in the current economy.

As much as I recommend having a lawyer to represent your interests in a divorce, I also recommend trying to keep those costs to as much of a minimum as possible.

So how do you go about doing that?

Of course you should first ask how much your lawyer charges per hour, and what a retainer may cost.  I would also ask for word-of-mouth from those you know on other lawyers they have used for their own family law issues.  Some lawyers bill more than others.

However, no matter how much you do, the main factor is that the cost of resolving your matters are very dependent on your spouse (or ex-spouse if that's the case).  Spouses and ex-spouses who can agree can keep the process much more simple.

The more time spent arguing over things, and the more time spent in court, means the more you will have to pay your attorney.  Lawyers bill by the hour.  If you are able to agree with the other party, your lawyer can draft documents for you, and finalize these in court, and you can move on quickly with your life.

If at all possible, you should try to agree to the extent that you feel is fair and equitable to the both of you.  You don't want to spend your life savings on a lawyer to argue over something that is going to be worth less than what you paid your lawyer in fees and costs.  Sometimes one should ask themselves, is it worth it?  Sometimes it is, sometimes it isn't.  That's a decision you have to make.  I recommend trying to come to the best agreement possible, and moving on with your life.  If you are forced to compromise, keep in mind the other party is most likely compromising too.

My ex-spouse has violated our parenting plan: how do I hold them in contempt in Montana?

If you and your ex-spouse have a Parenting Plan that has been ordered by a Court, and the other parent is not following the Parenting Plan or has violated the Plan in some way, then you should contact your lawyer.

If the only way to get your ex-spouse to abide by the Parenting Plan is by getting the Court's help, your lawyer can file a Petition for Contempt.  A petition for contempt asks the court to force the other parent to follow your Plan and to punish the other parent for failing to follow the court's order.

Your lawyer will ask you to write an Affidavit, with their help, that will demonstrate to the court how the other parent is failing to abide by your final Parenting Plan.

The other parent will be given the opportunity to show up in court and tell the court why that parent should not be held in contempt.  This opportunity for the other parent is called an Order to Show Cause.

Advice from a Whitefish Divorce lawyer: Listen to your lawyer

The number one piece of advice that I can give is to listen to your lawyer.

Your lawyer is there to help represent your best interests.  If they recommend you do or don't do something, then follow their advice.

Your lawyer will know what will and what won't help your case, and can try to minimize the damage when something is not in your favor.

This especially applies to people with children and parenting issues.  Your lawyer is on your side, and is there to look out for you.

If your lawyer asks you to complete documents by a certain date, that means your lawyer needs these completed. Remember that your lawyer has to abide by the dates required by law for filing documents. 

This means that you need to get the paperwork done in the time frame that they ask.

Allow your lawyer to guide you, and you will be much better off at the end of your case.

How is child support calculated in Montana?

Child support is calculated the same in the state of Montana, no matter where you live.  I mainly do calculations for the Flathead Valley, including Whitefish, Kalispell, and Bigfork, but can do calculations for anyone in Montana.

So how is child support calculated in Montana?  Courts in Montana decide what amount is reasonable or necessary to raise a child or children by looking at several factors:

1) The financial resources available to the child;

2) The financial resources available to each parent (income, pensions, etc.)

3) The standard of living the child would have had if the parents were still together

4) The child's emotional, educational, and medical needs

5) The age of the child

6) The cost of day-care, and

7) How much time the child spends with each parent.

These are all considered in calculating child support.  I would recommend you speak to your family law attorney about how child support is calculated for your specific situation and needs.  It is also possible for your family law lawyer to write up your parenting plan and have MT Child Support Enforcement Division calculate child support.

What if the other parent has violated the parenting plan in Montana?

So, you have a parenting plan set up for yourself and the other parent to follow on caring for your children.  Everything's going to go according to plan, right?  Unfortunately, not always.

What happens if one parent violates the parenting plan?  A parenting plan should address child support.  What if the other parent doesn't pay their child support, thus violating the parenting plan?  Do you still have to follow the parenting plan?

Yes.  The other parent is still obligated to follow the plan, even if one parent didn't return the children on time, or hasn't been paying child support.

Visitation with the children and child support payments are two separate issues in Montana.  Even if a parent never visits their child, they are still obligated to pay court-ordered child support.  If they don't pay child support that has been ordered by the court, the parent is still allowed to see their children.  The other parent cannot withhold visitation time because the other parent hasn't paid their child support.

Contact with each parent and child support are considered children's rights in Montana.

If you think that the other parent has violated the parenting plan, you should contact a family law lawyer.  Violating the plan is punishable by contempt and the offending parent can be subject to arrest and a fine or imprisonment.  You will need to go to court and get an order holding the other parent in contempt for violation of the plan.  In the meantime, if the situation warrants, you can call the police.
I recommend keeping a personal record of violations of the plan.

Best case scenario, you each work together to co-parent, and abide by the parenting plan that you both previously agreed to.  Remember what is best for your children, and try to minimize conflict to the greatest amount possible.

Questions about paternity in Montana

In Montana, the law presumes that any children born during a marriage is the biological child of the husband.

If you are not sure that your husband is the father, you may want to separately establish paternity.  This is something to discuss with your family law lawyer.

If you are not married and have a child, and one of the parties questions paternity, you will need to establish paternity before getting a parenting plan.

Things to think about before meeting with your lawyer for a parenting plan

If you are meeting with a lawyer regarding a divorce with minor children, or meeting with a lawyer where you are not married, but need to have a parenting plan, there are some things to think about before meeting with them to save some time (and saving time is saving money).

Consider a visitation schedule.  What hours do each of you work?  Do you travel for work?  Do you live close to the children's school? Who do you want to be the primary parent?

Consider summer vacations.  If your children are in school, or if they aren't yet but obviously will be before long, you should consider how you want to handle their summer vacations from school.  Summer vacations can be a great opportunity for the child to spend a lot of quality time with each parent once they are in school.

Consider holidays.  Courts generally try to alternate holidays by year to make it equal to each parent.  You should consider what years you want.  You should also consider specific holidays, such as, who wants Christmas Eve and who wants Christmas day? Do you want to alternate these?  Do you each specifically celebrate on one of the specific days? These will help you advise your lawyer what to write in your proposed parenting plan.
Consider frequent contact.  Montana courts presume that "frequent and continuing" contact with both parents is in the best interests of the child.  This does not mean that time spent with each parent has to be equal.  It does mean that when a child resides with one parent the majority of the time, the other parent will be expected to be allowed reasonable contact with the child.

Consider decision making.  Who is going to make decisions on behalf of your children?  There will be decisions about school, religion, and medical care.  Generally, both parents will be able to make emergency decisions and day-to-day decisions when a child is in that parent's care.

Consider conflict.  I prefer parenting plans to be a specific as possible to minimize conflict.  Ideally, the parents will work together on co-parenting and decisions arranging times and places to meet for exchanging children. Unfortunately, this is not always the case.  I recommend specific information on how the children will be exchanged for visits.

Any questions about these topics, as well as any other questions, should be directed at your family law attorney.  They can help you with this entire process.

What is family law in Montana?

You will often hear people refer to the terms "Family Law," "Family law lawyer," and "Montana Family Law Lawyer."  Often, I am asked what family law actually means.  These terms can be confusing.  What does family law refer to exactly?

Family law is a single term to cover several items.  The term "family law" is a broad word that covers a wide variety of topics: divorce, separation, prenuptial agreements, child custody, support, maintenance, parenting plans, child support, property division, and paternity.

Any topic that covers the idea of family is what a family law lawyer/attorney should be able to help you with.

Does the mother always get custody of the child in Montana?

In Montana, courts look at factors to decide what is in the best interests of the child.  See my blog post on the Best Interests of the Child standard in Montana.

Although it seems that mothers are always awarded "custody" (now called parenting or residential parent in Montana), that is not always the case.  Courts are gender neutral.  Montana courts decide what will be in the best interests of the minor child, and award parenting time accordingly.

If a mom is a stay-at-home mom, she may be awarded more time with the child because she doesn't work and is able to spend more time parenting (depending on how equal other factors are, etc.). This is especially true when the child is very young and still breast-feeding, the infant at this time cannot be away from their mother for long periods of time, and thus will spend more time with their mother.

In general, courts in Montana (especially Flathead County) appreciate the need to have both parents involved, and would like to see parenting time divided accordingly.  The least intrusive, easiest transition for the children to have the most time possible spent with each parent, and still be in the best interests of the child, seems to be the best arrangement.

All cases are unique.  Discuss this with your family law lawyer, who can give you advice on your particular case and needs.

You are not alone in divorce: it happens to celebrities too

I think that one feeling that a lot of people experience when they are going through divorce is the feeling of being alone.  Your entire life will change, and you will be adjusting to being alone after any number of years of having your spouse by your side.  You may also feel as though you are the only one going through this hard time.

The important thing to remember is that you are not the only one that is experiencing or has experienced this in the past.  Although unfortunate that many people have experienced the same feelings, the truth is, you are not alone.

Here is a link to a blog written about celebrity divorces, custody issues, paternity, you name it, between their spouses and partners: http://myfamilylaw.com/celebrityblog/.  You can follow the recent issues celebrities have faced while experiencing something that you may be able to relate to.  Knowing that you are not alone can certainly help one manage this difficult time.

How is parenting time decided in Montana?

In Montana, courts decide parenting arrangements based on the "best interests of the child." 
How does the court determine what is in the best interests of the child?  Some of the of factors the court will consider are:

1. The wishes of the parents

2. The wishes of the child (dependent on age)

3. Interaction of the child with each parent, siblings, relatives and persons who affect the child

4. Either parent's physical abuse or threat of physical abuse against either the child or other parent

5. Chemical dependency or abuse of either parent

6. Continuity and stability of care

7. Developmental needs of the child

8. Whether a parent has not paid birth costs or child support that they are able to pay

Keep in mind, Montana law presumes that frequent and continuing contact with both parents is best for the children unless it is proven to the court that that is not true.   If you want to restrict the other parent's contact with your child, you will have to show the court why you want to do so, and why it is in the best interests of the child to do so.

Information from a Whitefish Divorce Lawyer: Montana child custody basics

In Montana, "child custody" is no longer called custody and visitation.  Rather, Montana now uses "parenting" and "parenting plans" to demonstrate that both parents should be involved in a child's life.

In each parenting case and/or divorce case, lawyers must create a Parenting Plan for the parents, that will explain where the child or children will live, how much time the children spends with each parent, and how decisions will be made.   The Plan will also address child support, holidays, extracurricular activities, health insurance, day to day decisions, summer vacations, telephone contact, who has access to school information, etc.

This Parenting Plan is a guidebook for all decisions you and the other parent will make together as you co-parent the child for the rest of their life.

If you and the other parent cannot agree to the terms of a Parenting Plan, then the plan will be determined by a judge after hearing both sides and determining what is in the best interests of the children.  Whether you agree or the judge ultimately decides for you, the court will approve a Final Parenting Plan that will outline parental responsibility and guidelines so that the parties can work together on co-parenting and attempt to prevent future court actions.

In a divorce case, your lawyer will file a proposed parenting plan for you along with your petition for dissolution (divorce).  As part of the divorce, the court addresses the children's parenting arrangements.

If you and the other parent were never married, the court addresses parenting arrangements, and child and medical support.  The court does not address property or debts, as they do in a divorce.

Advice from a Whitefish lawyer: What if I want to move with my children?

In Montana, a parent is required to give the other parent 30 days notice before making a move that will "significantly affect" the other parent's contact with the children.

Notice is required by certified mail or by personal service, and then proof of service is to be filed with the court.  A proposed revised plan will also be filed with the notice.  Ask your family law lawyer for further details.

Obviously, even if you move to the house down the street, the other parent should know about the move.  The other parent should always have your current address, and should know where their child is living when their parenting time is with you.

Thirty days notice gives the other parent time to respond and ask the court to change parenting plan.
My advice is to not leave the state of Montana with your children without giving written notice to the other parent or obtaining the other parent's consent.  You could be held in contempt of court, and can be fined and imprisoned.

How do I get a legal separation in Montana?

If one party requests, and the other party does not object, the court can grant you a decree of separation rather than a decree of dissolution (divorce).

The requirements to obtain a legal separation are similar to that of a dissolution.

But if you are legally separated, your marriage has not ended.  You are still considered married by law, and cannot legally remarry until you change the legal separation into a dissolution.

After 6 months of being legally separated, either party may ask for the court to change the decree of separation into a decree of dissolution.

Information from a Whitefish divorce lawyer: How do I get spousal support (alimony) in Montana?

In Montana, alimony is referred to as spousal maintenance.

This refers to the money that one spouse is ordered to pay to the other.  This is separate from child support, so sometimes one spouse will be ordered to pay child support, as well as maintenance.

If you have been married to your spouse for several years, if you lack the means to provide for your reasonable needs, and if you are unable to support yourself through employment (because you've been a stay-at-home mom, or have a lack of qualifications and skills, etc.), then you should ask your lawyer about requesting maintenance in your Petition.

Attorney Fees Awards in Montana divorce, custody, and child support proceedings

Montana law provides that after considering the financial resources of both parties a district court may order a party to pay the other party's reasonable attorney fees for maintaining and defending dissolution, custody, and child support proceedings.

The Supreme Court of Montana has set forth three factors to consider in awarding attorney fees.  An award of attorney fees must be based on necessity, they must be reasonable, and they must be based on competent evidence.  In re Marriage of Pfeifer, 282 M 461, 938 P2d 684 (1997).

In In re Marriage of Schmieding, the husband appealed to the Montana Supreme Court regarding the necessity question after the district court awarded the wife her attorney fees from the dissolution action.

The wife had been primarily a stay-at-home mom.  She had helped her husband in his dental practice as a receptionist in Florida, before moving to Montana.  Since living in Montana, she had worked part-time at Big Sky Ski Resort as a ski patroller, at a rate of $7.80 per hour.  The district court determined that initially, after their divorce, the wife would be earning minimum wages, as she had never used her college degree previously for any type of employment.

The husband had a dental degree from the University of Florida, and prior to moving to Montana, he had earned between between $220,000.00 and $257,576.00 per year in his dental practice.
The parties had investment accounts, IRAs, properties, stocks and many other things worth value that were accounted for in their marital estate.

The District Court divided their marital estate, and determined that the husband would have a monthly income of $7,625.00 from his practice and investments, as well as $3,896.55 from the sale of the Florida practice which gave him $11,521.55 per month. He claimed monthly personal expenses of $5,533.00.   He was also ordered maintenance to his wife of $3,000.00 per month and child support of $2,539.00.

The District Court then determined that, based on the financial conditions of the parties, husband should reimburse wife for her reasonable attorney fees and costs incurred, totaling $26,561.88.

The husband then appealed the order to pay for his ex-wife's attorney fees and costs.

The husband argued that his ex-wife had been awarded sufficient marital assets to pay her own attorney fees.

The Supreme Court affirmed the award of attorney fees for the wife, by noting three things for the question of necessity:
1) the requesting party must be able to show an inability to pay their attorney fees (the wife in this case)
2) a District Court should consider the other party's ability to pay an award of attorney fees (the husband in this case)
3) a District Court should consider the relative financial positions of the parties in deciding necessity.
The husband argued that the District Court should have set forth in more detail its reasons why he should pay.
The Supreme Court upheld the attorney fees for the wife, holding that the District Court did not abuse its discretion in awarding these fees, because the husband's financial situation was much better than his wife's, that he earned five times more than his wife, and that he had the ability to acquire substantial assets while the wife did not.  Furthermore, the husband would no longer have to pay maintenance once the parties homes sold and they split the proceeds.
The disparity between the parties financial abilities allowed the Supreme Court to uphold the District Court's decision to pay the attorney fees.

Again, keep in mind that all cases are different.  Every case depends on the facts.

Montana Step-Parent Adoption

In a step-parent adoption action in Montana, a birth parent may give their parental rights to either the child's stepparent or a member of the child's extended family (such as a grandparent).  In a step-parent adoption, certain requirements for other types of adoption are waived.

The child's custodial parent must consent to the adoption by their new spouse.  If the other birth parent does not consent, an adoption cannot take place unless a Judge terminates the other birth parent's parental rights (such as for unfitness or non-support of the child).  So if the mother is re-married, and wants her new husband to adopt her child, if she consents and the birth father refuses to consent, an adoption will not be allowed unless a Judge terminates the birth father's parental rights for some reason.

A stepparent may adopt their spouse's child if:  the spouse has custody of the child and the child has been living with the spouse and stepparent for at least 60 days before the petition for adoption is filed; the spouse has died but previously had custody of the child, and the child has lived mostly with the stepparent for 12 months before the adoption is filed; or the Department of Public Health and Human Services or an agency in Montana has placed the child with the stepparent.  The first one listed is probably the most frequently used in a step-parent adoption in Montana.

The court may also allow a person who has the consent of the custodial parent, but is not actually a stepparent, to file a petition for adoption as well.

Can I represent myself in court in Montana?

The Constitution of the United States protects your right to represent yourself in court.  You can represent yourself, which is called "pro se," a latin term meaning "for oneself."

Unfortunately, representing yourself can be at your own peril.   As you have the choice between many lawyers, the only benefit I see to representing yourself is to save money, which most anyone can appreciate the necessity of at times.

However, the following are some reasons I do not recommend taking on a case without at least consulting with a family law (divorce) lawyer first:

1.   You will still be responsible for knowing the court's standard operating procedures,  just as any other lawyer.
Courts operate under a strict operating procedure which includes complex rules, in order to maintain order in the judicial process.  You will be expected to follow this procedure.  There is no guidebook to learning this procedure.  There is a reason lawyers have gone to law school, and are there to protect and represent your interests.  If you don't know the process, it can be a longer, time-consuming process, where you may end up losing your case because you don't know how to best defend and represent yourself.

2.  The other party may have a lawyer.
Why is this bad for you?  This means that they have an experienced, trained person representing their interests.  I would recommend you have the same.  In divorce, you are often dealing with your children and custody issues, property, and everything you have built as an estate together since getting married.  This is your entire livelihood.  It is certainly not something to take lightly.  It would certainly be scary to face another attorney, who knows the rules, the defenses, and the exact process that is to be followed when dealing with such important matters in your life.

3.  You wouldn't perform your own surgery.
Just as a doctor has been trained to investigate your medical conditions, diagnose, and help you get through something, a lawyer has been trained the same way for legal issues.  You wouldn't consider performing surgery on yourself if surgery was necessary.  You would consult a doctor.  You should always consult a lawyer if you have legal questions.  Even if you don't ultimately hire them, a lawyer can guide you through the process, diagnose the issues in your case, and help you by representing your interests to the best of their ability.

4.  There are other options.
What do you do if you can't afford the retainer a lawyer in Montana quotes you?
You can always have a one-time consultation for guidance from a lawyer. You can also hire a lawyer for limited scope representation (you can see my previous blog on this topic), which will allow you to hire a lawyer for assistance on specific pieces of your case, rather than the entire matter.  This will save you money, and you will still be representing yourself.

What documents should I collect for my lawyer in Montana for a divorce?

Do you need a divorce?  Although not necessary to have at the initial consultation, the following (noninclusive) list assist your lawyer in proceeding with a divorce:

• All credit card statements (both joint and individual)
• Documents that show gifts and inheritances
• Loan documents
• Stock options
• All checking and savings accounts (both joint and individual)
• Appraisals of property owned
• Pension & retirement plans
• Motor vehicle titles
• Real estate deeds
• 1099's
• State and federal income tax returns
• Pay stubs and W-2 forms
• Records of all debts
• Health insurance policies
• Auto insurance policies
• Automobile policies
• Any records you have of monthly living expenses

Any records that prove your income, your debt, potential income (such as inheritance), your expenses, etc., is helpful to your attorney in divorce proceedings.  All of your property will need to be divided (including debts!), and therefore, an accurate record is necessary.

Domestic Violence Resources Near Flathead County

There are many resources in the Flathead and surrounding counties for those suffering from domestic violence.  Please contact them if you need any assistance.

1. Violence Free Crisis Line in Kalispell, Montana.  Call them for help at (406) 752-4735.  Their office is located at 1203 Highway 2 West in the Gateway West Mall, Suite 28 & 29, in Kalispell, MT.

2.  Domestic Violence Education and Services (DOVES).  All services are free of charge.  Their Crisis Hotline is (800) 831-9987.  Their local number in Polson is (406) 883-3350.  They focus on Crisis intervention, personal and court advocacy, information and referral, support groups, community education, assistance with Orders of Protection.

3.  Flathead County Child and Adult Protective Services.  Located at 2282 Highway 93 S. in Kalispell, MT, in Flathead County.  Their number is (406) 751-5950.  This is an official reporting agency and protective services for suspected child abuse and neglect cases.

4.  Lincoln County Women's Help Line.  The Lincoln County women's help line can be reached at: (406) 293-3223.

5.  Child Abuse Hot-Line.  The Child abuse crisis line is (800) 332-6100.

6.  Emergency Shelter, Basic Needs.  If you need emergency shelter, you can go to the Samaritan House at 9th Ave. W. and 2nd St. W. in Kalispell, in Flathead County.
Lincoln County's Family Services is located at 117 Commerce Way, in Libby, MT.

Do I have to pay child support if I'm unemployed?

What if you are unemployed? Do you still have to pay child support?  The general answer is, yes.  You will still be responsible for paying child support even if you are unemployed.  Generally, a court will assume that every person could work 40 hours a week at minimum wage.  The court will also look at a parent's earning potential, and will ultimately impute income.

The following is a discussion of a case that addresses an issue like this.

Husband and wife married in 1994, and had one child together.  They ran a logging company together during their marriage.  The couple separated in 2004, and wife moved with the minor child to Polson, 40 miles away from where the couple had been living.  The wife then filed for divorce.

The wife gave the District Court her child support calculations.  Wife stated that husband earned around $23,000 each year from logging, which was correct.

By the time of the trial, the wife was only working part-time.  Wife testified at trial that she could increase her employment to full-time and earn at least minimum wage.

The District Court accepted the wife's Child Support calculations.

The husband appealed to the Supreme Court of Montana on a couple of issues other than the child support, but I am only discussing the child support aspect here.

Here is important law regarding child support:  Income for child support may include imputed income in order to reflect fairly a parent's resources available for child support. See Rule 37.62.106, ARM. The District Court should impute income when a parent is voluntarily unemployed or underemployed. Rule 37.62.106(7), ARM; In re Marriage of Bee, 2002 MT 49, ¶ 22, 309 Mont. 34, ¶ 22, 43 P.3d 903, ¶ 22.

Therefore, income will be imputed if necessary when a person is voluntarily unemployed or underemployed.  The Supreme Court found that the District Court failed here to impute income to the wife/mother.  Since the District Court failed to account for the mother's voluntary underemployment when they considered the child support calculations, the Supreme Court remanded for further calculations.

See this case here: In re Marriage of Dennison , 2006 MT 56, 331 M 315, 132 P.3d 535 (2006).
Nowadays, imputing income may be more difficult than in prior years.  The economy is not at its best right now, and employment may be harder to obtain than before.  It will depend on whether a person voluntarily quit their job, and the specific facts of the case.

When can child support be modified? In re Marriage of Midence

In re Marriage of Midence, 2006 MT 294, 334 M 388, 147 P.3d 227 (2006), is a case about modification of child support.

In this case, husband and wife filed for divorce.  Wife had been a stay-at-home mother, and husband was an oncologist.  When they divorced, they agreed the wife would primarily care for the children, and the husband would pay child support.  The husband was leaving his current employment at the time of the divorce and looking for a new job.

At his current practice, husband was earning $266,252 each year.  Based on this, he was required to pay $2,994.00 per month in child support under the Montana Child Support Guidelines.  Since he was in the middle of looking for new employment, the parties agreed to $2,500 per month for temporary child support, and agreed that this amount would be revised when husband found new employment.

When husband found a new job, wife petitioned the court to modify child support.  In 2004, the District Court held a hearing regarding the recalculation of the child support.  Wife requested the amount be increased to $3,723.00, pursuant to the Child Support Guidelines and the father's new income at his new job.   Wife also requested the new amount be applied retroactively back to when the husband had began this new employment.

The District Court determined that $2,990.00, which was offered by the husband, was a reasonable amount and that even the original award of $2,500.00 was enough to meet the needs of the minor children.  The District Court noted that the wife had not provided any evidence as to what type of lifestyle the children had enjoyed before the divorce, and that $2,990 per month would be between $578 and $1,155 more than the children's monthly needs as documented by the wife.  The Court determined that this would essentially be a tax-free maintenance award for the wife.  The District Court also refused to apply the new amount retroactively.

The wife appealed to the Supreme Court.

Before modifying child support, Montana requires a finding of substantial and continuing changed circumstances that make the terms of the original support award unconscionable.
Admin. R.M. 37.62.102(1) states that the "guidelines create a presumption of the adequacy and reasonableness of child support awards. However, every case must be determined on its own merits and circumstances and the presumption may be rebutted by evidence that a child's needs are or are not being met."

The Supreme Court focused on the fact that the District Court had found that if the Guidelines were applied, it would be unjust to the husband.  The District Court had further found that even though the husband's higher salary was substantial and continuing, this fact did not support a change in circumstances so substantial as to make the original decree unconscionable.

The Supreme Court upheld the District Court's decision, finding that without specific evidence of changed economic circumstances or actual increased need, a change in a party's income is not enough to modify child support or support a substantial change in circumstances.

Since the children's needs were being met, and it would have been unfair to the husband to modify the child support significantly when the children were not in need of more money, the revised amount from the District Court was affirmed for $2,990.00.  The Supreme Court also upheld the District Court's decision not to apply it retroactively.

Main lesson I get from this case: One must show actual increased need or changed circumstances, not just increased income, in order to modify child support.

Read this case here: In re Marriage of Midence

Montana Child Support Guidelines Financial Affidavit

One of the factors in determining child support is the financial resources available to each parent.  The court or CSED must first determine what these financial resources are.  Does one spouse have a pension? Does each spouse work? What is their income? etc.

In order to find out each parties' financial resources, both parents complete a Child Support Guidelines Financial Affidavit in Montana.  This affidavit must be signed in front of a notary (a notary requires picture identification), swearing that the information in the affidavit is true.  You also need a copy of your pay stub or something showing your income.

All of this information that each parent provides is used to do the child support calculations.  A copy of this affidavit is filed with the court, and a copy of it must be served to the other parent as part of your dissolution or parenting action.

Amount of property and money brought into a marriage is a major factor in property distribution in Montana: In re Marriage of Summerfelt

In re Marriage of Summerfelt, 688 P.2d 8 (1984) is a case demonstrating how much the financial contributions of spouses at time of marriage matter upon divorce.

In this case, husband and wife were married in Townsend, Montana, in 1963.  At the time of the marriage, the wife had significantly more property than the husband.  The wife owned a ranch near Townsend with 3,880 acres, as well as an additional 120 acres of ranchland.  The wife further had 170 head of livestock, a 1/3 interest in three rental properties in Billings, as well as household furniture.
At the time of the marriage, the husband had a house in Helena that was subject to debt, a few vehicles and a trailer.

Although the husband and wife dispute how much wife's property was worth at the time of the marriage, it was clear that wife had significantly more value in her property than did the husband.

In 1980, the wife filed for dissolution (divorce). The District Court determined that both husband and wife had worked hard during the marriage and contributed to their estate, and awarded property accordingly.

Although the wife appealed a few issues from the District Court decision to the MT Supreme Court, the most pertinent issue to us is:  Whether the award to the wife was inadequate in light of the financial condition of each of the parties at the outset of the marriage.
The well-established rule in Montana is:

"The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantial inequitable division of the marital assets resulting in substantial injustices." In re the Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361.

Although the District Court did not determine the financial condition of the parties at the time of marriage,the Supreme Court determined that it was clear that the wife had brought substantially more into the marriage than the husband.  Therefore, the amount awarded to the husband was an abuse of discretion because of the parties' financial condition when they got married.

The case was reversed and remanded to divide the marital assets.

You can view the case at: In re Marriage of Summerfelt

Resources for Representing Yourself in Montana

There are resources in Montana for pro se litigants, those representing themselves without the help of a lawyer.  Montana is a state that tries to have justice accessible to all in need, regardless of their income level.

1. Montana Legal Services Association.  This organization provides free legal services for low-income Montanans.  You do have to qualify as low-income to be eligible for assistance with this program.  The closest office to Flathead County is in Missoula, at 211 North Higgins Ave., Suite 401, Missoula, MT.   Their hours are Monday to Friday, 7:30 a.m. to 5:15 p.m. They are also open on Saturdays from 9:15 a.m. to 12:45 p.m.  They can be reached at: (406) 543-8343.  I would recommend looking at their website: http://www.mtlsa.org/.  Their website provides all the information you need on the organization and how to receive their assistance.  You can also call their helpline directly at: 1 (800) 666-6899.

2. Flathead County Self-help Law Center. Flathead County is one of only two counties in Montana (the other county is Yellowstone County) that has a self-help law center.  Flathead County's Self Help Law Center is located at the Flathead County Justice Center, at 920 South Main, Kalispell, MT.  The law center is now located in the basement of the Justice Center, and is by appointment only.  They cannot give legal advice but can provide basic information on forms, etc.  You can reach them at: (406) 758-2496.

 3. Limited Scope Representation.  A lawyer can provide limited scope representation, meaning that they do not represent you through an entire case, but instead can assist you with the portions that you request help with, such as writing a reply brief for you.  This means that you can avoid the cost of a full retainer, and only pay limited fees for what the lawyer helps you with.  This is a great way to obtain affordable legal help for your Montana divorce.  This also means that the lawyer may not respond to the court or other side on your behalf, or appear in court for you, depending on your agreement.  Ask any family law lawyer about limited scope representation.

 4. Montanalawhelp.org.  A great resource for Montanans looking for basic legal information.  They provide free fill-in-the-blank forms for dissolution and parenting plans.  If you choose to use their forms to help lower the costs of a divorce or parenting action, I would recommend you consult with a lawyer at least once for guidance on your particular case and needs.

5.  Need information? A one time consultation with a family law lawyer such as myself can lead you in the right direction on your case, and where to go from here.

Resources for Divorcing Families

The following is a list of resources for divorcing families provided in a brochure called "Stepping Back From Divorce: Protecting Your Children During a Divorce," by Montana Family Court Services:

1) For a brochure on joint custody:
Association of Family and Conciliation Courts.  329 W. Wilson St., Madison, WI, 53703.  (608) 251-4001.

2) Listings of Marriage and Family Therapists nationwide.  If your area does not have a chapter, call your state's psychological association:
American Association for Marriage and Family Therapy.  1133 15th St. NW, Suite 300, Washington, DC 20005.  (202) 452-0109.  http://www.aamft.org/

3) Assistance in locating a family mediator in your area:
Academy of family mediators.  5 Militia Drive. Lexington, MA 02173.  (781) 674-2663.  http://www.igc.apc.org/afm

4) Local chapters dealing with custody issues and divorce reform:
Children's Rights Council.  300 "Eye" Street NE, Suite 401, Washington, DC, 20002.  (202) 547-6227.  http://www.vix.com/crc

5) Referral service of social workers who provide family counseling and/or mediation:
National Association of Social Workers.  750 First Street NE, Suite 700, Washington, DC 20002.  (202) 408-8600.  http://www.socialworkers.org/

6) For a quarterly bulletin and booklet of educational resources for stepfamilies:
Stepfamily Association of America, Inc.  650 J. Street, Suite 205, Lincoln, NE, 68508.  (800) 735-0329.  http://www.stepfam.org/

How is Child Support calculated in Montana?

Child Support awards are based on the Montana Child Support Guidelines, which are presumed to be an "adequate and reasonable support award" unless proven otherwise by clear and convincing evidence.  See MCA Section 40-4-204; In Re Marriage of Kotecki.

Income of each party must be determined.  The Guidelines define income as "actual income, imputed income, or any combination thereof which fairly reflects a parent's resources available for child support." Admin. R.M. 37.62.106(1).

The following factors are considered when the court considers what is reasonable and necessary for raising a child:

• Financial resources available to the child;
• Financial resources of each parent (income, etc.);
• Standard of living the child would have had if the parents had stayed together;
• The age of the child;
• The child's emotional, educational, and medical needs;
• The cost of day-care;
• The needs of any person, other than the child, whom either parent is legally obligated to support;
• Any parenting plan that is ordered or decided upon; and
• How much time the child spends with each parent.

*The amount of child support is not affected by marital fault or misconduct

How do I get Child Support in Montana?

Child support is money paid from one parent to the other to provide care for any minor children.  Child support can be ordered by a court or an administrative agency such as CSED, the Montana Child Support Enforcement Division.

1) By a court
If the parties have minor children, child support must be ordered as part of a court-ordered parenting plan.  Your lawyer can calculate this for you using a computer software program and include it in your parenting plan for you.  This means that when a final parenting plan is established (see future blogs about parenting plans), the District Court will also order one or both parties to pay child support.
If the parties already have a valid Child Support and Medical Support Order, the court can just refer to that and deem it valid.

2) By CSED
You can also elect to get a Child Support calculation through CSED (MT Child Support Enforcement Division) rather than through a dissolution action through a court. CSED will calculate your child support for free, so this is a good way to save money.  However, keep in mind that they use a certain format for everyone, so there are advantages to having a lawyer calculate this for you to allow for more flexibility for you and your ex.

If you would like CSED to do your calculations, you need to contact them to request application materials.  Application materials are available on their website:
Montana Department of Public Health and Human Services.

CSED has different field offices around the state of Montana.  Region 5 is Flathead, Lake, Lincoln, Mineral, Missoula, and Sanders counties.  Their office is located in Missoula.  They can be contacted at: (406) 329-7910.  Their address is: 2675 Palmer Street, Suite C.

Child Support is not something to take lightly.  It is an important factor that will affect your and your child's life post-divorce.

For more information on calculating Child Support for your minor children, please contact me.  I, or other family law attorneys can calculate this for you.

Please keep in mind, too, if you need child support calculated, and this is the only thing that you need done, limited scope representation is available.  Please see my blog on this topic: Limited Scope Representation.  This means that a lawyer can just do these calculations for you for a fee instead of having a lawyer represent you on all aspects of your case.

See my blog on how Child Support is calculated.

How does the Court system in Montana work for Divorce?

There are 56 District Courts in Montana.  These courts are split into 22 Judicial Districts.
District Courts are courts of general jurisdiction.  This means that these courts process all felony cases, all probate cases, most civil law cases at law and in equity, naturalization proceedings and various writs.  Most importantly, to you, is that District Courts process divorce, as divorce is civil law.  So when you file for dissolution (divorce), you file in District Court.

Flathead County is the Eleventh Judicial District Court, which currently has 4 District Court Judges.
If you lose your case, you may want to appeal it, in hopes of a better outcome.  An appeal from a District Court in Montana (including Flathead County), goes directly to the Supreme Court of Montana, the highest court in the state.  Montana is one of ten states in the U.S. that does not have an intermediate appellate court.  This is how the Supreme Court of Montana receives civil and criminal appeals directly from Montana District Courts.

The Montana Supreme Court currently has a Chief Justice and 6 Associate Justices.  Although only 4 Associate Justices are provided for in the Montana Constitution, the Montana Legislature is allowed to increase this number to 6.  Each Justice is elected for a term of 8 years.  All Supreme Court justices must be United States citizens, and have resided in Montana for at least 2 years prior.  They must also have been licensed to practice law in the state of Montana for at least 5 years prior to being elected.

The Montana Supreme Court also has original jurisdiction (the power to hear a case for the first time, rather than the power to review a lower court's decision) for cases not heard in District Court if there are no facts in dispute and the cases presents only legal or constitutional questions.

The Montana Constitution grants the Montana Supreme Court broad authority over the entire states courts to ensure smooth and effective operation.  The Montana Supreme Court also regulates admission of attorneys to the State Bar, as well as the conduct of attorneys and judges.

Will I automatically receive an asset if my spouse fails to disclose?

Full disclosure is required by law in Montana when going through a dissolution.

While the statute does give the court discretion to award an undisclosed asset to the other party, this does not mean that the court will always do so.  It is within the court's discretion.

A Montana Supreme Court case discussing this topic is: In Re Marriage of Gerhart, 2003 MT 292, 78 P.3d 1219 (2003).

In this case, the husband received a bonus and profit-sharing award and deposited the funds in an investment bank account.  The husband then failed to disclose this account in his Final Declaration of Disclosure.  The counsel for the wife requested the husband's W-2 forms for the year 2001, and the husband amended his disclosure to include the account.  The wife received this amended disclosure only 2 days before trial.

Kevin testified that he had forgotten about the account, and had accidentally omitted the bonus and profit-sharing award, having placed his W-2 tax form in an envelope marked for his 2001 taxes without looking at it.
The District Court acknowledged the account containing the bonus and profit-sharing award, but decided not to include this account as a marital asset to be divided.

The wife appealed to the Supreme Court of Montana because the District Court denied her motion for amendment of the property distribution.

The Supreme Court discussed Section 40-4-253(4), MCA, which provides that a party's failure to disclose an asset on his or her final disclosure declaration is presumed to be grounds for the court to award the undisclosed asset to the other party separate from the equitable division of the marital estate.   Therefore, it is clear that the statute authorizes a court to award undisclosed assets to the opposing party.

The question here is, is a court required to? The Supreme Court of Montana found that the statute only creates a presumption.

The following is the court's reasoning:  ¶ 20 "Section 26-1-601, MCA, sets forth a list of conclusive presumptions, including “any other presumption, which, by statute, is expressly made conclusive,” while § 26-1-602, MCA, provides that all other presumptions are disputable and may be controverted by other evidence.  Section 40-4-253(4), MCA, on which Kimberly [the wife] relies, does not state that the presumption therein is conclusive.   Consequently, the presumption at issue is disputable."

Since the husband had given testimony as to his reasoning why he was late in disclosing this account, it was within the District Court's discretion to decide whether the husband's testimony was credible.
Since the District Court accepted the husband's explanation, the Supreme Court declined to disturb the decision, as the Supreme Court determined that the District Court did not abuse its discretion.

You can see this case here: In Re Marriage of Gerhart

Therefore, the presumption that failure to disclose an asset is grounds to award the asset to the other party is now considered disputable.  This means that you will not necessarily be awarded an asset the other party fails to disclose.  It will depend on the facts of the case, and it will be up to the court to decide what is proper.

What is the penalty for failure to disclose an asset or liability in Montana?

What is the penalty for failure to disclose an asset or liability?

Here's where it shows how important it is to be honest.  You can always try to work with your spouse on how to divide things so that you can both come out as satisfied as possible.

The failure of a party to disclose an asset or liability on the final declaration of disclosure is presumed to be grounds for the court, without taking into account the equitable division of the marital estate, to award the undisclosed asset to the opposing party or the undisclosed liability to the noncomplying party.

This means that the other party may be awarded something that you didn't disclose.  There is absolutely never a reason not to disclose everything.

What if the court finds that a party committed perjury on their disclosure down the road?

In addition to any other civil or criminal remedy available under law for the commission of perjury, the court may set aside the judgment, or part of the judgment, if the court discovers, within 5 years from the date of entry of judgment, that a party has committed perjury in the final declaration of disclosure.

What do I have to disclose to my spouse when I get divorced?

To see what the statute says about disclosures when going through a divorce, please see my blog: Do I have to Disclose all Assets During a Divorce in Montana?

Here are some examples of what my firm has our clients disclose.

• Gross Income (including, but not limited to: interest, dividends, pensions, retirement, trust income, gifts, rental income, child support, alimony, unemployment, wages, salary)
• Deductions
• Vehicles
• Housing (water, phone, TV, gas, electricity, real estate taxes)
• Insurance
• Any miscellaneous (pets, work uniform, maintenance to prior spouses, entertainment)
• Groceries
• House repairs
• All personal effects

Honesty is the best policy.  Everything you can possibly think of should be disclosed to each party.

Do I have to disclose all assets during a divorce in Montana?

If you are going through a divorce, you must disclose everything that you own in an Income, Expense, Asset and Liability Disclosure Statement.

Full disclosure of all income and expenses is required by law.  It doesn't matter if you have been living together for 20 years and are now getting divorced. Everyone has to fill this statement out, providing full disclosure.  This ensures that property can be divided equitably, as required in Montana.

Full disclosure is covered by section: MCA Section 40-4-253.

Each party must serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury:

(i) before or at the time that the parties enter into an agreement for the resolution of property or support issues, other than pendente lite support; or
(ii) in the event that the case goes to trial, no later than 45 days before the first assigned trial date.
The parties are allowed, by written stipulation or by oral stipulation made in open court, to change the time that they exchange the final declarations of disclosure, as long as they are in agreement.

The final declaration of disclosure must include all material facts and information regarding:

• characterization of all assets and liabilities;
• valuation of all assets that are contended to be marital or for which it is  contended that the marital estate has an interest;
• amounts of all obligations that are contended to be marital obligations or for which it is contended that the marital estate has liability; and
• expenses and earnings and accumulations of each party that have been set forth in the income and expense declaration.

Along with this final declaration of disclosure, each party must serve on the other party an updated income and expense declaration unless a current income and expense declaration is on file.

Montana Divorce Process

Are you wondering about how the divorce process works in Montana?  Here is some information for you.

First, a divorce is not a divorce in Montana.  It is referred to as a dissolution.  So when I refer to dissolution proceedings in my blogs, I am referring to divorce.

What happens in a dissolution? 
A dissolution ends your marriage.  This will allow you to legally marry someone else if you so choose.  The judge will divide the property and debts of the two sides and order any spousal support (aka alimony) and child support as necessary.  The wife may restore her maiden name if she so chooses.  If the parties have minor children, the parties will enter into what is called a "Parenting Plan" in Montana, to decide the living arrangements and support for their children.

How do I file for dissolution?
The divorce process is started by filing a petition for dissolution with the Clerk of District Court in your county.  This office is located at your local county courthouse.
For Flathead County, the Clerk of District Court is located at: 920 South Main St., Kalispell, MT.  They can be reached by phone at: (406) 758-5870.  Their hours are Monday - Friday, 8:00 a.m. to 5:00 p.m.
A person filing for divorce are required to have the petition and a summons officially delivered (a.k.a. served) to your spouse.  The petition will alert the court to what each of you are asking for in the dissolution.

Depending on the facts of your case and whether you have children, you may be required to file other forms.  All forms must be served upon your spouse.  Your family law lawyer can help you sort out your individual case needs, and what will need to be filed.
Here is a link to their website: Flathead County Clerk of District Court Contact Information

How much does it cost? A petition for dissolution in Flathead County costs $200.00.

You can view a list of the Flathead County Clerk of District Court's fees here:
Flathead County Filing Fees

Requirements to file for divorce in Montana

In Montana, a divorce is not called a divorce.  A divorce is referred to as a "dissolution".
As I mentioned in previous blogs, a court can grant a divorce with only the consent of one spouse.  In other words, it doesn't matter if only one spouse wants the divorce.
In order to get a divorce, one must:

• Be legally married.
• The person who files for the divorce must have lived in the state of Montana for at least 90 days prior to filing the petition for dissolution.
• If you have children together, usually those children must have lived in the state of Montana for at least 6 months.
• One spouse must believe that the marriage is irretrievably broken, with no chance of reconciliation.

Pro se litigants: Limited Scope Representation is an option in Montana

It appears that especially in Family Law (which incorporates Divorce, Child Custody, Property Division, Child Support, etc.) that more and more litigants are pro se, meaning that they are representing themselves in court without an attorney present.

While the obvious benefit to doing this is certainly saving money, I do not recommend handling legal matters without at least consulting a lawyer on your matters first.  Even in one consultation, lawyers can direct you where to go, what the outcome most likely will be, and how to handle the process.  And that means only a one time fee.

There is another option for those people trying to save money, however.  There is an option called Limited Scope Representation.

Recently, the Montana Supreme Court Equal Justice Task Force, the Montana Supreme Court Commission on Self-Represented Litigants, and the State Bar Access to Justice Committee petitioned the Montana Supreme Court to adopt changes to the Montana Rules of Professional Conduct and the Montana Rules of Civil Procedure.  The intent of this was to encourage Limited Scope Representation (LSR) by Montana lawyers, as one way of addressing the legal needs of low-income Montanans.

This means that I can now assist clients on one-time matters, instead of clients having to retain me to represent them on all matters, requiring a retainer fee.  Now, if you need help with one document, or one part of your case, I can represent you in a Limited Scope.  This limits the attorney's role to one or more individual proceedings in an action.  This means that the lawyer will not show up in court on your behalf, or necessarily be required to answer pleadings, papers or other documents.  It means that lawyers will now only be responsible for that part of your case that you agreed on beforehand, by signing a limited scope agreement.

Myself or any family law attorney can assist you in these matters, and fully discuss limited scope options with you.  This is a great way to still represent yourself but have input from an attorney where you need help.  (And save some money!)

For more information on how helpful this can be, you can read the article by Klaus Sitte, Montana Legal Services Association Director, a link provided here: Limited Scope Representation: Increasing Access for Pro Se Litigants.

Safe havens: a safe place for a child to see their parent

The Nurturing Center in Kalispell offers a program called, Safe Havens.  This is a place for parents to meet with their children in a safe environment.  This is a supervised visitation program where one parent can meet with their child if there is a court ordered supervised visitation and/or exchange of the child.  This can also work where one parent desires to have no contact with the other parent.  If there are any child safety concerns, or domestic violence, or there has been a long period since the minor child has seen a parent, this can be a wonderful, safe place for a child to meet with one parent and be supervised.

You can view their website here:  Safe Havens

You can also contact them at (406) 756-1414.  Or email at info@nurturingcenter.org to arrange an appointment.  You can discuss fees with them upon calling.

Required class for parties to a divorce with minor children: Children In the Middle

The Flathead County Court is the Eleventh Judicial District Court.  This Court requires parties to a divorce and/or parenting dispute that involve a minor child to complete an approved educational program that will discuss the effects of divorce and parenting time on children in accordance with MCA Section 40-4-226.

Family Court Services of the Eleventh Judicial District Court requests the following topics be addressed:

• Divorce Impact on the Family- Dynamics of Divorce, Separation, and/or loss of a relationship.
• Parenting Strategies- Adversarial versus Cooperation.
• Children's Reactions to Separation and Divorce- Developmental and Emotional.
• Maintaining Attachment with Children.
• Children's Responses to Conflict.
• Conflict Resolution.
• Characteristics of Parents who Succeed with Shared Parenting Arrangements.
• Mediation-- when it may be appropriate.
• When counseling may be necessary.

This is so that divorcing parents can better understand how a divorce will impact their children, and how to (hopefully) make the changes in the child's life easier for them.

Once you begin the process of a divorce or parenting dispute through the Court system in the Eleventh Judicial District Court, you  are required to contact The Nurturing Center , located at 146 Third Avenue West, Kalispell, Montana 59901.  Their number is: (406) 756-1414.  The fees and costs of the program must be paid by the parties.  You can call them directly to register for the program.
The link I have provided to the Nurturing Center will link you to the list of programs available.

It is important that parties comply with this requirement, because failure to comply may result in contempt of Court proceedings, and a finding of contempt is punishable by a fine and/or incarceration.  It is also important to comply because this requirement is in place to help parents help their children through this difficult time and adjustment.

How do I handle my emotions while going through a divorce?

A divorce can be a difficult time for anyone.  Suddenly, the world that you have known and have invested yourself financially and emotionally can be turned upside down in an instant.  Sometimes, only one party wants the divorce.

If you are having a difficult time dealing with a divorce, it can be helpful to seek advice and assistance from licensed counselors and therapists.  Professionals can help you handle this time emotionally.
Lawyers are there to help you divide property equitably, and assist in getting through the process as soon as possible.  No one wants to be stuck in what I call, “divorce land” any longer than necessary.  The sooner that parties are divorced and able to divide their things, the sooner each can move on with their lives.

If you have children together, you will always be a part of each other’s lives.  This is where local classes are useful in assisting you in handling high conflict divorces, as well as helping parents co-parent together after a divorce.  Please see:  The Nurturing Center Class Information for more information on this matter in the Flathead County area.

What if only one spouse wants a divorce in Montana?

There is nothing you can do to prevent the other party from divorcing you if they so choose.  The court only needs to conclude that you and your spouse have irreconcilable differences, with no reasonable prospect of reconciliation.  Therefore, one spouse may obtain a divorce without the other spouse's consent.

This can often be an easy standard to meet in the state of Montana.

What if my spouse is at fault?

In Montana, divorce is considered “no fault.”  This means that you do not have to prove fault on the part of either party in order to file for divorce.   Therefore, the court does not consider such things as adultery or abuse as a basis for granting a divorce.  Your spouse does not have to agree to the dissolution, and you do not have to show that either of you have been involved in wrong-doing.

As I posted in my blog,  How Do I Get A Divorce In Montana?, one may get a divorce by living separate and apart for more than 180 consecutive days before filing a petition for divorce, OR having a serious marital discord between the parties with no reasonable prospect of reconciliation.

As long as the court finds that one of these two things is true, a divorce should be granted.  It doesn't matter whether one party is more at fault than the other.

How do I get a divorce in Montana?

In Montana, to grant a divorce, the court must determine that:

1) the couple has lived separate and apart for more than 180 consecutive days before the petition for divorce is filed; or

2) that there is serious marital discord between the parties and there is no reasonable prospect of reconciliation.

Most frequently, my firm sees those falling under #2.  Most people are still living together when they determine that a divorce is going to happen.  As long as there is serious marital discord between the parties and there is no reasonable prospect of reconcilation, a couple is able to get divorced in Montana.

How much does a divorce cost?

The cost of a divorce may vary depending on the facts of your case, how complicated the issues are, how much time will be spent in court, and so on.  It also depends on your spouse.  Whether a case settles or goes to trial will also make a difference in costs.  You should discuss this matter with your lawyer in the initial consultation.

You will meet with a lawyer for the first time in what is called the initial consultation.  You may meet with several lawyers for these consultations, as you decide whom you are going to hire.  The initial consultation will be a one-time fee for the amount of time that you meet.

When you decide which lawyer you are going to retain, you may be required to pay a retainer.  Some things may be billed hourly, depending on the lawyer and the case.  If you do pay a retainer, that money is held in a trust account for you.  The lawyer will bill you out of that retainer as work is done on your case.  If there is any money remaining when your case is finished, that will be refunded to you.  If the lawyer does more work for you than the funds that the retainer will cover, you will be billed additionally for the cost of that work.

Your lawyer in the first meeting should be able to give you an estimate of the costs, once they hear about your case.   Keep in mind: this is almost always an estimate.  They should let you know if something comes up so that it ends up being more than expected.  Cases vary on how long they take to be completed, especially if your spouse does not agree with you.

Do I need a lawyer?

You do not need a lawyer to get divorced, but there are many advantages to having a lawyer during a divorce.  A lawyer is trained to identify the issues and give you the best advice on your case.  A lawyer is most importantly there to represent your best interests.  In matters such as divorce and parenting, you may be dealing with such things as your children, your home, and all financial matters between you and your spouse.  These are the most important things in your life, the things that make up your existence.  Therefore, you may feel more comfortable having a trained person representing you in these matters.

A lawyer can analyze your individual case and needs, explain the process to you step by step, and handle matters quickly, so that you are able to move on with your life as quickly as possible.  The last thing that you want to be concerned with during this process is what form you need to file.  I have seen pro se people (people representing themselves, without an attorney), and while I recognize the need to save costs, I see the difficulty they have with representing themselves.  If the correct procedure is not followed, the Court will not accept what is submitted, and it may take a much greater amount of time than it would have had you had an attorney.

Further, you may have rights that you do not know about.  The "how-to best represent yourself" handbook is really a law degree.  It is possible to lose these rights without the proper advice.  This is especially important when you and your spouse disagree on the terms of your dissolution (divorce).
Also, a lawyer is there to give the best arguments and the best defenses to help you arrive at the best possible scenario for your case.

One option for those who cannot afford a lawyer is to have a lawyer represent you only for particular things that you need done, which is called Limited Scope Representation.  Stay tuned for my Blog on this topic.

The quicker a person can move through the process of a divorce, the better it is for everyone involved, and that includes financially and emotionally.  A lawyer can help you move through the process.

How do I find a lawyer?

Choosing your attorney is one of the most important decisions you will make during a divorce, or in any family law matter.  This is also the first decision you make when you determine (or find out!) you will be involved in a civil litigation matter.

So you begin looking for a lawyer.  You may use Google to search for lawyers, as I use Google these days to search for anything and everything.  I personally find it difficult to find an attorney this way, because what you will find are plenty of law firm websites, with not a whole lot of information provided.

You should focus your search on what area of law you need.  Do you need a divorce?  Do you need a will?  Do you need a parenting plan?  Do you need a personal injury lawyer?  Find a law firm that can represent the type of law you need.  The Yellow Pages or Google can find this information for you.
The next thing I would recommend is word-of-mouth.  Asking people you know is the best way to find out what they know, the experiences they have had, and who will best fit you and your needs.

It is most important to find an attorney that you believe will best represent your interests, without running up unnecessary costs.  Lawyers’ fees can be expensive, and the shorter the process can possibly be, the better it is for all parties' involved.  Ask questions.

What if I live in a different county than my lawyer in Montana?

Lawyers licensed in the state of Montana are licensed for the entire state.  Therefore, lawyers can help you state-wide, no matter what city you live in.

Local rules may vary from county to county.  My focus in my practice is in the Flathead County, which covers mostly Columbia Falls, Whitefish, Kalispell, and Bigfork. Johnson-Gilchrist Law Firm, P.C., the firm where I work, is located at 6336 Hwy 93 S. in Whitefish.

You can see our website at:
Johnson-Gilchrist Law Firm, P.C.

We also handle the occasional case in Libby or Eureka, which are outside Flathead County.  This can be done by handling a lot of the matter over the phone so as to prevent travel on behalf of the attorney or client as much as possible in order to keep costs down.  So if you are looking for an attorney in Flathead County, myself or other attorneys are able to assist you even if you reside outside the Flathead.

Keep this in mind when you are looking for a lawyer to represent you.  The most important thing is that you find the right lawyer for you, who is going to best represent your interests.

Children and Divorce in Montana

Divorce is generally an extremely difficult experience, not only for each spouse, but also for any children involved.  Avoiding a battle over children is the best way to handle a divorce.  It is important to keep in mind a child's well-being during and after a divorce matter.

The following is taken from "Stepping Back from Anger: Protecting Your Children During Your Divorce," provided by Montana Family Court Services.  This section of the article is entitled "Children's Bill of Rights":

Every kid should know he or she has rights, particularly when their mom and dad are splitting up.  Below are some things parents shouldn't forget -- and kids shouldn't let them -- when the family is in the midst of a break-up.

You have the right to love both your parents. And you have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times, such as a divorce.
You do not have to choose one parent over the other. If you have an opinion about what parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.
You're entitled to all the feelings you're having. Don't be embarrassed by what you're feeling. It's scary when your parents break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.
You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone-- either your other parent or a trusted adult, like a teacher.
You don't belong in the middle of your parents' break-up.  Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries.
Grandparents, aunts, uncles and cousins are still part of your life.  Even if you're living with one parent, you can still see relatives on your other parents' side. You'll always be a part of their lives, even if your parents aren't together anymore.
You have the right to be a child.  Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need our love. They can handle the rest.


These suggestions are important to keep in mind when struggling with a divorce when children are involved.

Tips for Divorcing Parents.

The following is a list of ten tips for divorcing parents from a publication called "Stepping Back from Anger: Protecting Your Children During Divorce," provided by Montana Family Court Services.

I would highly recommend spouses embarking on divorce keep these tips on mind, as divorce is never easy, especially not on children.

1.  Never disparage your former spouse in front of your children.  Because children know they are "part mom" and "part dad," the criticism can batter the child's self-esteem.
2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.
3. Reassure your children that they are loved and that the divorce is not their fault.  Many children assume that they are to blame for their parents' hostility.
4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.
5. At every step during your divorce, remind yourself that your children's interests- not yours- are paramount, and act accordingly. Lavish them with love at each opportunity.
6. Your children may be tempted to act as your caretaker. Resist the temptation to let them.  Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.
7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.
8. If you are the non-custodial parent, pay your child support.  The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.
9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.
10. If at all possible, do not uproot your children.  Stability in their residence and school life helps buffer children from the trauma of their parents' divorce.

In Re: The Parenting of A.P.P.: When will the Court award visitation rights to a third-party nonparent in Montana?

A lot of people may have a similar situation to this one.  What happens when a third-party non-parent wants visitation rights?

In In Re: The Parenting of A.P.P., the Montana Supreme Court awarded a third-party nonparent visitation rights when the mother passed away.

Section 40-4-228 MCA, governs the award of a child-parent interest and visitation rights to a third-party nonparent.  Under this statute, a court may award a parental interest to a person other than a natural parent when it is shown by clear and convincing evidence that:
(1) the natural parent has engaged in conduct that is contrary to the child-parent relationship;
(2) the nonparent has established a child-parent relationship; and
(3) it is in the best interest of the child to continue that nonparent relationship. Section 40-4-228(2), MCA.

A court may award visitation rights to a third-party nonparent based upon the best interests of the child. Section 40-4-228(3), MCA.

The facts of this case are as follows.  Judith had two children from a previous marriage, one named Angelina.  Judith gave birth to A.P.P. in late 2000.  Brian and Judith married in May 2003, and divorced in January 2007.  Judith was given custody of all three children, and Brian had visitation rights with A.P.P. and child support obligations.

Judith then married Gerald in July 2009.  Two months after their marriage, Judith was killed in a motorcycle accident.  All three children remained with Gerald.  When Brian learned of Judith’s death, he requested Gerald return A.P.P. to his care.  Gerald took A.P.P. to Brian who, in March 2010, moved out of state with her.

In July 2010, Gerald and Angelina petitioned for a determination of parental interest and visitation rights for A.P.P.  The District Court held that: (1) Brian had engaged in conduct that was contrary to his child-parent relationship with A.P.P.; (2) Gerald had established a child-parent relationship with A.P.P.; and (3) it was in A.P.P.'s best interests to continue her relationship with her step-father and sister. The District Court granted to Gerald and Angelina parenting/visitation time with A.P.P.

Brian appealed the matter to the Supreme Court of Montana.

The Supreme Court of Montana then addressed and confirmed each of the District Court’s three rulings:

(1)   Brian had engaged in conduct that was contrary to his child-parent relationship with A.P.P.
The District Court determined that Brian had engaged in conduct contrary to his parental relationship with A.P.P. because prior to Judith’s death, Brian had missed several visits with A.P.P. that he was entitled to, with months going by without Brian seeing A.P.P.  Further, Brian failed to make all of the child support payments he owed.
The Supreme Court recognized that there was conflicting evidence brought forth from Brian and Gerald.  However, the Court decided not to reweigh or disturb the District Court’s decision in weighing the evidence, and agreed that there was sufficient evidence to support the District Court’s findings.

(2)  Gerald had established a child-parent relationship with A.P.P.
The Supreme Court found that Gerald had established a child-parent relationship with A.P.P. as defined in § 40-4-211, MCA, which is a finding that is required by § 40-4-228(2)(b), MCA.   Section 40-4-211(6), MCA, states that a “child-parent relationship” between a child and a nonparent “means a relationship that”:
(a) exists or did exist, in whole or in part, preceding the filing of an action under this section, in which a person provides or provided for the physical needs of a child by supplying food, shelter, and clothing and provides or provided the child with necessary care, education, and discipline;
(b) continues or existed on a day-to-day basis through interaction, companionship, interplay, and mutuality that fulfill the child's psychological needs for a parent as well as the child's physical needs; and
(c) meets or met the child's need for continuity of care by providing permanency or stability in residence, schooling, and activities outside of the home.
The Supreme Court agreed with the District Court that Gerald had established a child-parent relationship with A.P.P.   This was due to the fact that the District Court had sufficient evidence that Gerald had financially supported A.P.P., helped her with her homework, provided transportation, prepared meals, attended her sporting events and school activities, and had taken care of A.P.P. while her mother was working.
As far as Angelina was concerned, Brian argued that Angelina should not be awarded visitation rights without finding a child-parent relationship between Angelina and A.P.P.

(3)  Whether it was in A.P.P.’s best interests to continue her relationship with her step-father and sister.
The Supreme Court determined that it would be in A.P.P.’s best interests to maintain the relationships with Gerald and Angelina, after hearing testimony from all parties except for A.P.P.

Clearly, each case is factually different, and thus, may yield different results.  But this is a case to consider for the rules of law if and when you are a non-parent, and are seeking visitation rights.  Each MCA Section listed here can guide a person in determining whether to seek visitation rights.

I would recommend contacting a lawyer, including myself, if you are in a similar situation in Montana and need legal advice.

You may read this case here:
In Re the Parenting of A.P.P., 2011 MT 50

What is adoption, and who may adopt in Montana?

Adoption is a legal term for creating a parent-child relationship where it did not previously exist.  An adoption terminates the parental rights and duties of the child’s birth parent, effective immediately. 

The child’s birth parent whose rights are being terminated will still be required to pay any past due child support.

After an adoption, the parties adopting will assume all of the parental rights and duties of the parent-child relationship, including the adopting parent’s duty to pay child support and the adopted child’s right to inherit from the adopting parent.

Many people may wonder who may be able to adopt a child.  The following may adopt:

• A stepparent;
• A husband and wife;
• An unmarried person over age 18;
• A married person over age 18 who is legally separated from his or her spouse and whose spouse and been declared incompetent.

What child can be adopted?  A child can be adopted if:

•  The child has no living parent
•  A parent, the Department of Public Health & Human Services (DPHHS) or an adoption agency with custody of the child consents to the adoption; or
•  The rights of the child’s living parents have been terminated by a Court in Montana or another state.

What kinds of adoption are there in the state of Montana?    There are 4 ways a child can be adopted in Montana:

1. Through a stepparent adoption,
2. Through a placement by a licensed adoption agency,
3. Through a direct parental placement, Or
4. Through a placement by the DPHHS.

What is a default divorce in Montana?

When one spouse files for divorce, they file a Petition for Dissolution.

The other party, your spouse (also referred to as the Respondent) will be given 20 days to respond to your Petition once they are served with a copy of it.

If your spouse does not answer within 20 days, a default judgment will be awarded to you by the court.  Your lawyer will still have to schedule a hearing and appear in court with you to obtain your Final Decree of Dissolution.

As long as what you requested in your Petition is considered fair by the court, if a default judgment is entered, you will be granted everything you asked for in your Petition.  If children are involved, you must have filed a Parenting Plan, which the court must also determine is in the best interests of the minor children.