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For many divorcing couples in Montana, their home is their most valuable asset. In a divorce, this makes it extremely important what happens to the property, how the mortgage is dealt with, and who continues to live in the home. Often, in an effort to encourage consistency for the children, whichever parent will be doing the majority of the parenting will have a preference in staying in the home.

If you own your home free and clear – congratulations. That is a major accomplishment. It also means that there is no debt to accompany the home. Often, Montana judges will require that whoever is awarded a piece of property in a divorce also take the corresponding debt. So if your home has a mortgage on it, whoever keeps the house would also be responsible for the mortgage. If there is no debt, obviously that is a great thing, but it means the asset of the home will need to be offset in other ways.

If there is other property in the marriage, often that can be awarded to the other spouse in order to create an equitable distribution. It also may be necessary that the spouse who takes the house also take some other debt in order to offset the high value of the home.

Also, a word of warning about mortgages. Although a divorce decree (and the property settlement agreement that goes along with it) may assign a debt to your spouse, this does not absolve you of  that debt with the lending company. Usually, we attempt to have the spouse who acquires the debt refinance it as quickly as possible in only their name in order to relieve their ex of liability. In cases where this is not possible, it can create a sticky and unfortunate situation.

One of the most frustrating situations I see clients dealing with is the situation when one parent refuses to follow the parenting plan. Often this occurs with small things. The other parents cancels scheduled visits at the last minute, or habitually returns the children late. It may come in the form of repeated requests to meet somewhere more convenient for the other spouse. But whatever form it takes, it breeds frustration and anger.

A violation of the parenting plan is punishable by contempt of court and can be a criminal offense. This is a very severe punishment and means that the offending parent can be arrested and fined up to $500 or imprisonment in the county jail. As you can imagine, given the severity of what I just described, taking such action is a major step. But it does provide a powerful stick to use against the other parent.

If your child’s other parent has kept him for longer than is allowed by the plan, you can ask the court for an order holding that parent in contempt of court. With that order, it should be possible to get the police involved who can help return your child to you.

Whenever a client tells me of situations like this, I always recommend that they start keeping a diary of all such events. Recording what the parent did, and in what way they violated the plan. If you do end up asking the court for a contempt order, being able to show that this behavior is a pattern and not just a single incident can go a long way to returning your children to you. As always, if you have any questions about your specific situation, please call me today and schedule an appointment so we can discuss your difficulties.

In Arnold v. Sullivan, the Montana Supreme Court recently addressed the issue of premarital property in divorce. More specifically, the court discussed how to deal with the appreciation of that property during the marriage. In the case, the wife entered the marriage owning a home as her sole property. During the marriage, the mortgage payments on the home were made from the proceeds of the couple’s business where they both worked. During the marriage, the mortgage was paid off and the home was owned free and clear. The question before the Court was what, if any, share of the home’s value is the husband entitled to.

The Montana Supreme Court restated its position that “assets belonging to a spouse prior to marriage, or acquired by gift during the marriage, are not a part of the marital estate unless the non-acquiring spouse contributed to the preservation, maintenance, or increase in the value of that property.” Remember, determining what is part of the marital estate is important in Montana because it is the marital estate which is divided between the parties during the divorce. Anything not in the estate is simply awarded to its original owner (no matter its value).

However, if the other spouse contributes to the premarital property’s preservation, maintenance, or appreciation, that spouse should be awarded his or her equitable share of that preserved, maintained or appreciated value attributable to his or her efforts. This does not include any appreciation in the value of the property due simply to market factors. Basically, this means that if the property increased in value due to the efforts of contributions of the other spouse, that increased value should become part of the marital estate and distributed equitably.

The question remains: when do the other spouse’s contributions rise to level necessary to entitle him or her to an equitable share of the increased value? Unfortunately, Arnold v. Sullivan only makes it clear that the husband’s work which enabled the payment of the mortgage was sufficient to entitle him to an equitable portion of the home’s value which was preserved, maintained or appreciated by his efforts. The Montana Supreme Court expressed no opinion on what that value was, and provided little guidance for future cases that don’t exactly match this scenario. But, this case provides an excellent review of premarital property in Montana divorce and gives us divorce attorneys a little more to go on.

Montana law presumes that a child born during the marriage is the biological child of the husband. Sometimes this is not the case, but as a general rule it works fairly well. If you believe someone else is the father, you can establish paternity by a court or administrative judgment, decree, or order.

Likewise, if the parents of a child are not married, and one of the parents questions or denies paternity – you will need to bring an action to establish paternity. Establishing paternity can be very important for child support and (when questioned or challenged) an important fact to establish. And, aside from child support reasons, simply knowing the true biological father of a child can bring certainty and security that is worth the effort.

If you are unsure of a child’s father, or interested in pursuing an action for paternity, please call me today to schedule an appointment.

Most parenting plans include a dispute resolution provision. This means that if there is a disagreement about the plan, the parties need to engage in the dispute resolution process before proceeding to Court. Even if your parenting plan does not have this, in Montana the judge can order you to try dispute resolution before returning to Court. In most family law disputes, you will need to at least try dispute resolution before a Judge will hear your case.

Dispute resolution can take many different forms. You can ask a friend, pastor, or any agreed-upon third party to mediate. You may try mediation or a settlement conference, or something even more informal. However you do it, remember the that purpose of dispute resolution is so that you and your child’s other parent can solve whatever problem exists on your own, without brining in a Judge to make major life decisions for your family.

A final note: Mediation is not appropriate for cases where domestic abuse is involved. If there has been physical abuse, or the threat of physical abuse by one parent against the other, the requirement of mediation is waived and the dispute should be heard by a judge. This is a safety issue, and a way to protect victims of abuse from being bullied into accepting terms they would not otherwise agree to.

If you are unsure whether your parenting plan contains a dispute resolution clause, or would like to discuss dispute resolution with a Montana divorce attorney, please call me today.

For those considering divorce in the Kalispell, Montana area there are a number of options you should consider in how to proceed. Although typically people think of hiring a lawyer and going to court in order to get a divorce, our system in Montana provides less confrontational options that are quicker and less expensive. Which option is best for you is a decision that needs to be based on an individual assessment of your situation. Remember, even if you ultimately decide not to hire an attorney, most will still have a consultation with you at an affordable rate. This may be the best way to determine which option is best for you.

Kalispell Divorce Attorney

A Kalispell divorce attorney can be very involved in your case or only provide some legal advice and guidance. One option is to hire the attorney to represent you in your divorce. From that time on, they will be responsible for communicating with your spouse’s attorney, drawing up the relevant paperwork, and advising you on the best course of action. This can take a great deal of stress off of people and enable them to focus on their daily lives instead of being bogged down in the minutia of the divorce process. An attorney may represent you all the way to a trial, but as I’ve discussed before I think the best possible outcome in family law cases is usually reached through an agreement between the parties. This usually takes the form of a settlement conference, mediation, or simply discussions between the parties. The benefit of having a divorce attorney at your side in these type of negotiations is that he can advise you on Montana divorce law and help protect your best interests under the law.

As I mentioned earlier, you can also hire a divorce attorney in a more limited manner. Often, this takes the form of a consultation where you schedule an appointment with an attorney, discuss the specifics of your situation, and receive legal advice tailored to you. A word of warning: when scheduling this type of an appointment, make sure that the attorney is willing to give advice if you do not ultimately retain him. Some attorneys see a consult simply as a way to sign up new clients, and are less cooperative when that is not going to happen.

Mediation and Settlement Conferences in the Kalispell Area

Another option is for you and your spouse to meet with a mediator. There are many excellent options in the Flathead Valley and I would be happy to provide a recommendation if you are interested. In Mediation, a neutral third party attempts to craft an agreement between you and your spouse. Because most of our local mediators are also attorneys, they can then help you prepare the proper documents for filing with the court. You could use a mediator without the aid of an attorney, or with one – the choice is yours.

Settlement conferences are an excellent way to settle cases, and generally come about between two parties represented by divorce attorneys. Where a mediation is an effort to bring the parties to an agreement, a settlement conference is much more about an assessment of each parties’ chances at court of getting what they want. It usually involves an experienced Kalispell divorce attorney who is familiar with the local courts and our judges and can give an accurate assessment of your chances.

Self Help Divorce in Kalispell

A final option is to use our self-help law library here in Kalispell to get the proper forms and fill them out yourselves. Generally, this option only works between spouses who are still able to communicate well and have a very civil relationship. This option also has a number of options in terms of how involved other people may be. You could hire an attorney for a consult prior to beginning the process, to get a better idea of what the results should be. You could also hire a mediator to help settle the one issue that the two of you don’t seem to be able to work out. Either way, this is generally the least expensive option – but also the most difficult to successfully complete. While you may think that the two of you can agree on everything, when it actually comes down to dividing the China, things may look a little differently.

In keeping with the theme of a parenting plan in Montana being as comprehensive as possible, we have a number of provisions that don’t fit neatly into a category. Today’s post includes two of those sections from the sample parenting plan I’ve been posting on here.

1. Designation of Custodian: Neither party is at this time designated the “custodian” of the child. Should any state or federal law or regulation require that a parent be designated as “custodian,” the parties agree that such a determination shall be made premised upon the best interests of the child at the time such designation becomes necessary, but both parties acknowledge and agree that such designation shall in no way affect either parent’s rights or responsibilities under this Parenting Plan or any Court Order or Decree approving the same.
2. Option to Care for Child: In the event we cannot personally care for our child during the times allocated to each of us other than on an occasional basis, we shall contact the other parent to allow that parent first chance to be with our child before seeking a friend, baby-sitter, significant other, relative, or other care provider to watch our child in our absence.

Although many people still refer to it as custody, Montana is very adamant about referring to the process as parenting. For this reason, under state law no single parent has “custody” under ordinary circumstances.  Instead they have parenting time in varying quantities. However, the federal government and other states have not yet seen fit to change their laws to fit ours – meaning that the custodial parent can sometimes have important meaning. This provision states that while it may be necessary to refer to one parent as such, it in no way changes the actual relationship or the arrangement set forth in the parenting plan.

The second section is about practically planning for the future. As much as you want to spend time with your children, there will come an occasion when you cannot be present during your scheduled parenting time (the same applies to the other parent).  This section states that when that happens, the other parent has the option of caring for the child in your absence. This is based on the common-sense belief that a child is better off with his parent than with a baby-sitter. Unfortunately, there are situations where this is not the case – and in those cases we would probably not want to include this provision. But the divorce this parenting plan is based off of was fortunate enough to have two good parents (who unfortunately couldn’t get along with one another).

A Montana parenting plan is a flexible document that can say many many different things. Remember, just because I solved a problem in a certain way in this plan does not mean that things will always play out that way. There are as many different solutions as there are people trying to arrange parenting for their children. My time preparing parenting plans for the citizens of Kalispell, Montana has taught me that there are many paths to the top of the mountain.

As we’ve discussed before, one of the primary goals of a Montana parenting plan is to craft an agreement that will grow along with the child. The process is lengthy, intensive, and expensive – ideally you will only need to do it once. One of the ways we can ensure that you do not have to reinvent the wheel each time is to include provisions that anticipate future events.

Although not something that always happens, often one parent will move from one location to another. They may just move across town, or they may cross Montana and move from Kalispell to Billings. For that reason, my parenting plans typically include the following language:

Residential Changes Significantly Affecting the Child: If either parent’s change of residence will significantly affect the child’s contact with the other parent, the parties shall follow the following procedure:

1. The moving parent will:
   • Prepare a written notice of his or her intention to change residences;
   • Prepare a proposed revised residential schedule;
   • Serve the non-moving parent, personally or by certified mail not less than 30 days before the proposed change of residence, with the written notice of intention to change residences and with the proposed revised residential schedule; and
   • File proof of service upon the non-moving parent with the court.
2. If the non-moving parent fails to respond to the written notice of intention to change residences and the proposed revised residential schedule, then the non-moving parent will be deemed to have accepted the proposed revised residential schedule. If the non-moving parent objects to the proposed revised residential schedule, the non-moving parent shall:
   • Prepare an alternative proposed revised residential schedule or state why the existing residential schedule should continue;
   • Serve the moving parent, personally or by certified mail within 30 days of receipt of the notice and proposed revised schedule from the moving party, with the alternative proposed change of residence or statement why the existing residential schedule should continue; and
   • File proof of service upon the moving parent with the court.
3. If the parties cannot agree upon a revised residential schedule for the child, they shall promptly make arrangements to mediate their differences as provided below.
4. If the parties cannot agree upon a revised residential schedule for the child after mediation, they may file appropriate motions with the court.

This portion of the parenting plan creates a series of steps that must be followed before one parent may make a residential change that effects the child. It requires that the moving parent notify the other parent in writing at least 30 days before the move. The moving parent must also provide a new residential schedule for the child. Although we have not seen one yet, the residential schedule determines where the child is to be and when. I will provide an example of a residential schedule in a later article.

The non-moving parent may then object to the move or the proposed changes in the residential schedule by writing back to the moving parent. It should be noted that this is done outside of court, saving the parties the expense of having to litigate every dispute immediately. If the non-moving parent does not respond in writing, then we assume that he or she accepts the changes. If there is a dispute, the parties may try to resolve it themselves, but need to begin participating in the mediation process quickly. Again, this is an effort to help the parties avoid going back to court. If mediation fails, then the parties will need to go back to court and incur that substantial expense.

While a parenting plan describes how a child will be cared for by two separated parents, it really is a limitation on how the parents may behave and what they may do. In addition to limits on when the parent may see his child, or when he must deliver the child to the other parent, there are also more general restrictions. Again, this all comes down to the best interests of the child (the standard we’ve seen again and again in the parenting context).

The following are sections from an actual parenting plan prepared by my office outlining some general responsibilities of each parent and discussing how communication between the parents will take place in the future. I will note that the communication section in this plan is fairly vague. I usually recommend that my clients flesh this out more thoroughly. In this case, my client decided to ignore my advice and I know it has been the cause of some problems between them.

PARENTAL RESPONSIBILITIES

1. Neither parent shall use illicit drugs or misuse prescription drugs while the child is in their care. Both parents shall refrain from the use of cigarettes or any tobacco products, or excessive alcohol during their time of residential care of the child and both parents shall do their best to prevent the child from being exposed to or around illicit drugs, cigarettes or any tobacco products, or excessive alcohol consumption, even if being used by other individuals.
2. Both parents shall do their best to prevent the child from being exposed to profanity or sexually explicit material. The parents shall screen television shows, music, movies and video games to ensure they are age-appropriate for the child.
3. Both parents shall provide their own supplies and necessities for the child when the child is in their home (i.e., clothes, food, et cetera).
4. Both parents shall use appropriate child safety restraints when transporting the child, and will make the appropriate child safety restraints available to any third party they ask to transport their child.
5. Both parents shall ensure the child always utilizes appropriate safety gear for any activity requiring such (e.g., bicycle helmet, life jacket).

COMMUNICATION BETWEEN PARENTS

1. Each parent shall promote a healthy, beneficial relationship between the child and the other parent, and will not demean or speak or act out negatively in any manner that would damage the natural flow of love and care between either parent and the child. The parents shall communicate to implement the Parenting Plan and shall communicate only in positive ways. The parents shall not make and shall not allow others to make derogatory remarks about the other parent in the child’s presence.
2. Each parent shall share important information with the other parent about the child’s physical and mental health, education, discipline and all aspects of the child’s upbringing.
3. At least 24 hours notice of a schedule change shall be given to the other parent. The parent requesting the change shall be responsible for any additional child care that results from the change.

Again, this is only one section of a parenting plan. Hopefully this gives you some idea of the considerations that go into drafting such an agreement, but every situation is unique and requires a lot of time and thought to make sure all the important topics are covered.