Montana Legal Separation Agreement
Montana grants a court decree of legal separation, granted on request unless the other spouse objects, with a 90-day residency and conversion to divorce after six months. Attorney review available.
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Introduction
Montana grants a court decree of legal separation, and it does something most states do not: if a spouse asks for a legal separation rather than a divorce, the court grants the decree in that form unless the other spouse objects (Mont. Code Ann. 40-4-104). A legal separation lets a married couple formally separate through the court, addressing property, debts, support, and parenting, while staying legally married so that neither spouse may remarry. To obtain one the court must find the marriage irretrievably broken, shown either by the spouses living separate and apart for more than 180 days before the case begins or by serious marital discord that adversely affects one or both spouses toward the marriage (Mont. Code Ann. 40-4-104(1)(b)), and at least one spouse must have been domiciled in Montana, or stationed here in the armed services, for 90 days before filing (Mont. Code Ann. 40-4-104(1)(a)). A legal separation does not end the marriage and does not close off a divorce later: no earlier than six months after the decree is entered, on the motion of either spouse the court must convert the legal separation into a decree of dissolution of marriage (Mont. Code Ann. 40-4-108), which is how a Montana separation becomes a divorce. Couples choose it to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce. Montana divides the marital estate equitably rather than by a community-property split (Mont. Code Ann. 40-4-202), and the court can order maintenance on the same basis as in a divorce (Mont. Code Ann. 40-4-203); because those terms are the same ones used in a divorce, they belong in a Montana Marital Settlement Agreement, and if you decide to end the marriage instead the pleading that starts it is a Montana Divorce Petition. DocDraft builds your Montana legal separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
- 1
Montana grants a court decree of legal separation, and if a spouse requests a legal separation rather than a dissolution, the court grants it in that form unless the other spouse objects (Mont. Code Ann. 40-4-104). The couple stays legally married and neither may remarry.
- 2
To obtain a Montana legal separation the court must find the marriage irretrievably broken, shown by the spouses living separate and apart for more than 180 days before the case, or by serious marital discord that adversely affects one or both spouses toward the marriage (Mont. Code Ann. 40-4-104(1)(b)).
- 3
At least one spouse must have been domiciled in Montana, or stationed in the state as a member of the armed services, for 90 days preceding the filing for a legal separation (Mont. Code Ann. 40-4-104(1)(a)).
- 4
A Montana legal separation does not end the marriage. No earlier than six months after the decree is entered, on the motion of either spouse the court must convert it to a decree of dissolution of marriage (Mont. Code Ann. 40-4-108), which is how a separation becomes a divorce.
- 5
Couples choose a Montana legal separation over divorce to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step before deciding to divorce.
- 6
In a Montana legal separation the court can order maintenance on the same basis as in a dissolution, weighing the factors in Mont. Code Ann. 40-4-203.
- 7
Montana divides the marital estate equitably rather than by a community-property split (Mont. Code Ann. 40-4-202). Because that division is the same one used in a divorce, those terms belong in a Montana marital settlement agreement, not in the separation itself.
Key decisions before you file
Before you file a Legal Separation Agreement in Montana, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
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Montana Requirements for Legal Separation Agreement
Court Decree of Legal Separation
Montana grants a court decree of legal separation (Mont. Code Ann. 40-4-104). The couple stays legally married while living apart, and neither spouse may remarry. The marriage ends only through a later dissolution.
Grounds: Marriage Irretrievably Broken
The court must find the marriage irretrievably broken, shown by the spouses living separate and apart for more than 180 days before the case or by serious marital discord that adversely affects one or both spouses toward the marriage (Mont. Code Ann. 40-4-104(1)(b)).
Ninety-Day Residency
At least one spouse must have been domiciled in Montana, or stationed in the state as a member of the armed services, for 90 days preceding the filing for a legal separation (Mont. Code Ann. 40-4-104(1)(a)).
Granted Unless the Other Party Objects
If a spouse requests a decree of legal separation rather than a dissolution, the Montana court grants the decree in that form unless the other spouse objects (Mont. Code Ann. 40-4-104). If the other spouse objects and seeks a dissolution, the court may proceed as a dissolution.
Conversion to a Later Divorce
No earlier than 6 months after entry of the decree, on the motion of either party the court shall convert a decree of legal separation to a decree of dissolution of marriage (Mont. Code Ann. 40-4-108). The earlier separation does not block the conversion.
Maintenance in the Decree
In a legal separation the Montana court can order maintenance on the same basis as in a dissolution, weighing the factors in Mont. Code Ann. 40-4-203. This is the same standard used in a divorce.
Equitable Division of the Marital Estate
Montana divides the marital estate equitably rather than by a community-property split (Mont. Code Ann. 40-4-202). Because this is the same division used in a divorce, set it out in a Montana marital settlement agreement rather than in the separation itself.
Separation Versus Marital Settlement Agreement
A Montana legal separation sets the couple's marital status; a marital settlement agreement is the contract that divides property and sets maintenance and is used in both a separation and a divorce. Keep the money and parenting terms in the marital settlement agreement and rely on the legal separation for status.