General

Annulment in Montana

Rather than using the term “annulment,” Montana law provides for a declaration of invalidity.  If a marriage is declared invalid, it is basically as though the marriage never occurred.

Under Montana law, there are only certain circumstances under which a declaration of invalidity is possible.  For example, invalidity is appropriate when one of the parties to the marriage lacked the capacity to consent to the marriage either because of the influence of alcohol/drugs or because they have some sort of mental disease or defect that makes them unable to consent.   If a party was forced into the marriage or induced by fraud, the court may declare the marriage invalid.

Another circumstance where the court may declare a marriage invalid is if one of the parties to the marriage lacks the physical capacity to consummate the marriage and the other party was not aware at the time of the marriage.

Age can also be a reason that marriage is declared invalid.  If one or both of the parties was under 16 years of age at the time of the marriage, the court will likely declare the marriage invalid.  If one or both of the parties was 16 or 17 years old, but failed to obtain a parent’s consent or the consent of the court, the marriage is likely invalid.

Finally, if the marriage is prohibited, it will likely be declared invalid.  For example, if one party is already legally married, an additional marriage is prohibited by law.  Marriages between relatives are prohibited by law as well.

Because Montana’s invalidity law is very fact based, anyone considering filing a petition for declaration of invalidity should speak with an attorney about their rights.

Montana and Wyoming towns top list of “100 U.S. Cities Most Doomed for Divorce”

Men’s Health magazine recently published the 100 U.S. Cities Most Doomed for Divorce.  While Men’s Health may not be the most reliable source for this information, the results are incredibly intriguing.  To determine the rankings, Men’s Health looked at divorce rates, the number of licensed marriage and family therapists, and the stringency of the state’s divorce laws. Third on the list is Billings, Montana.  First place goes to Cheyenne, Wyoming.  See which other cities made the list here.

Insurance Company Begins Offering Divorce Insurance

A recent New York Times article discusses what appears to be the World’s 1st Divorce Insurance Program.  SafeGuard Guarantee Corp. is now selling “WedLock Divorce Insurance” designed to cover the costs associated with divorce, such as attorney’s fees or costs associated with setting up a new household.

The New York Times article brings up an interesting point: if marital funds are used to purchase the policy, is your ex-spouse entitled to a portion of the insurance benefit?  Since this is the first divorce insurance program in the world, courts have likely not encountered this scenario.

The cost is approximately $15.99 per unit per month and each unit results in $1,250 of coverage, provided the policy has matured.  Not necessarily a bad payout if you divorce shortly after the 48 month maturity period.  It will be interesting to see if other insurance companies follow suite or if WedLock will fold sometime soon.

Read the New York Times Article here or go straight to WedLock’s website here.

Divorce is Bad for the Environment

A really inconvenient truth:  Divorce is not green

EAST LANSING, Mich. — The data are in. Divorce is bad for the environment.

A novel study that links divorce with the environment shows a global trend of soaring divorce rates has created more households with fewer people, has taken up more space and has gobbled up more energy and water. The findings of Jianguo “Jack” Liu and Eunice Yu at Michigan State University are published in this week’s online edition of the Proceedings of the National Academy of Sciences.

A statistical remedy: Fall back in love. Cohabitation means less urban sprawl and softens the environmental hit.

“Not only the United States, but also other countries, including developing countries such as China and places with strict religious policies regarding divorce, are having more divorced households,” Liu said. “The consequent increases in consumption of water and energy and using more space are being seen everywhere.”

Liu and his research assistant Yu started with the obvious – that divorce rates across the globe are on the rise. Housing units, even if they now have few people in them, require resources to construct them and take up space. They require fuel to heat and cool. A refrigerator uses roughly the same amount of energy whether it belongs to a family of four or a family of two.

When they calculated the cost in terms of increased utilities and unused housing space per capita, they discovered that divorce tosses out economy of scale. Among the findings:

  • In the United States alone in 2005, divorced households used 73 billion kilowatt-hours of electricity and 627 billion gallons of water that could have been saved had household size remained the same as that of married households. Thirty-eight million extra rooms were needed with associated costs for heating and lighting.
  • In the United States and 11 other countries such as Brazil, Costa Rica, Ecuador, Greece, Mexico and South Africa between 1998 and 2002, if divorced households had combined to have the same average household size as married households, there could have been 7.4 million fewer households in these countries.
  • The numbers of divorced households in these countries ranged from 40,000 in Costa Rica to almost 16 million in the United States around 2000.
  • The number of rooms per person in divorced households was 33 percent to 95 percent greater than in married households.

To track what happens when divorced people returned to married life, the study compared married households with households that had weathered marriage, divorce and remarriage. The results: The environmental footprint shrunk back to that of consistently married households.

Liu, a University Distinguished Professor of fisheries and wildlife and Rachel Carson Chair in Ecological Sustainability at MSU’s Center for Systems Integration and Sustainability, has spent more than two decades integrating ecology with social sciences to understand the complex interrelationships between nature and humans and how those interactions affect the environment and biodiversity. Liu and Yu began to discuss this research project when Yu was a high school student.

This new work also acknowledges that divorce is not the only lifestyle trend changing family living structures – the demise of multigenerational households and people remaining single longer are examples.

“People’s first reaction to this research is surprise, and then it seems simple,” Liu said. “But a lot of things become simple after research is done. Our challenges were to connect the dots and quantify their relationships. People have been talking about how to protect the environment and combat climate change, but divorce is an overlooked factor that needs to be considered.”

The research, Liu said, shows that environmental policy is more complex than one single solution. Governments across the world may need to start factoring in divorce when examining environmental policy, Liu said.

“Solutions are beyond a single idea,” Liu said. “Consider the production of biofuel. Biofuel is made from plants, which also require water and space. We’re showing divorce has significant competition for that water and space. On the other hand, more divorce demands more energy. This creates a challenging dilemma and requires more creative solutions.”

The research was funded by the National Science Foundation, the National Institutes of Health and the Michigan Agricultural Experiment Station.

A copy of the paper can be downloaded from www.pnas.org or www.csis.msu.edu/research.htm#publications.

Keeping Your Home in MT Divorce

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.

What if I am unable to afford my Montana child support payment?

With the not-so-recent economic downturn, more and more parents are finding themselves unable to pay the monthly child support payment they could once easily afford.  Northwestern Montana is no exception, as I often receive calls from prospective clients regarding child support modification.  According to the U.S. Census Bureau’s 2007 Report on Custodial Mothers and Fathers and Their Child Support, only 46.8% of parents received the full amount of child support due to them.  That means over 50% of parents owing child support were either unable to pay or did not pay their full child support obligation in that year.   The Report also indicates that over 25% of individuals that were owed child support contacted a government office for issues reltated to collection of past-due support.   The 2007 report came out before the most recent economic dive, so it is possible that unpaid child support has increased since then.

If you are a parent unable to meet your child support obligation, you may have legal options.  First, you must determine if it is time for you to modify child support.   Many parenting plans have a built-in review date in the child support section.  If you do not have a parenting plan or there is no review date specified, child support can be recalculated only when there has been a “substantial change in circumstances.”   Major financial changes or significant changes in the number of days the child spends with each parent could qualify.

Once you have determined if you can modify your child support, you must decide where/how you want to do the modification.  There are essentially two options: (1) at your local District Court; or (2) through the Department of Health and Human Services Child Support Enforcement Division (CSED).   There are pros and cons to either option and your individual circumstances will likely determine which option is a better fit for you.  If you determine that going through the local District Court is your best option, I highly encourage you to contact an attorney to assist you with drafting the necessary paperwork.   If, on the other hand, you decide that you would like to have your child support modified by CSED, you can contact them at: http://www.dphhs.mt.gov/csed/contactthedivision.shtml.  You may seek the assistance of an attorney if you go through CSED and it is important to remember that CSED does not represent your individual interests.

Also, it is important to understand that a child support modification may not always benefit you.  If your income has increased or your time with your children has decreased, you may end up owing more child support at the end of a modification.   Many attorneys can run preliminary calculations for you to see if you would be benefited by a modification.

The most important thing to remember if you are considering a modification is that you absolutely MUST have your child support obligation formally modified in order to protect yourself.  If your ex-spouse verbally agrees to lower your monthly obligation, he/she could still seek back support for the amounts that went unpaid.  The only way to ensure that your child support obligation is modified is to take the necessary legal steps.

Read the full Census Report at:   http://www.census.gov/prod/2009pubs/p60-237.pdf

Changing Your Name after a Montana Divorce

 

During the dissolution process in Montana, a wife may request that the Court restore her maiden name or her former name.  If a wife chooses to change her name, the court will order her name changed as part of the decree of dissoltuion.   It is then up to the wife to take the necessary steps to inform others of her name change.  Here are some necessary steps to make a name change take affect:1.  Contact the Social Security Administration and complete the necessary paperwork.  SSA will then issue you a new social security card with your restored name.

2.   Contact the Department of Motor Vehicles and have a new drivers’ license issued. 

3.  Change your name on other forms of identification: passports, credit cards, etc. 

4.  Change your name on important legal documents such as wills and powers of attorney.

5.  Notify important institutions and individuals of your name change.  For example, contact your insurance carrier, bank, school, employer, landlord and friends and family. 

When taking any of these steps, you will likely need a copy of your Decree of Dissolution.  You may obtain certified copies from your local Clerk of Court’s office.

Divorce by Default in Montana

Once you have filed your Petition for Dissolution and served your spouse with it and the Summons/Temporary Economic Restraining Order, your spouse has 20 days to file their Response.  If after 20 days, your spouse fails to file a Response to the Petition for Dissolution, you can request the Clerk of Court enter your spouse’s default. 

Though you still have to attend a hearing and appear in court to finalize your dissolution, the court generally grants you the property division and/or parenting plan you request – provided the property division is equitable and the parenting plan is in the best interest of the children.  A default dissolution can move incredibly quickly.  Essentially, if your spouse does not file a Response in 20 days, you can be officially divorced a few days after the 20 day mark. 

If you are someone that has been served with a Petition for Dissolution and Summons/Temporary Economic Restraining Order, the worst thing you can do is ignore it and hope it goes away.  The dissolution process will go forward with or without you and it can be difficult to set aside a default.  If you have been served, I urge you to consult with an attorney as soon as possible so that you can ensure you will have a Response filed with the court within the 20 day mark.

Montana Divorce Tax Issues

With the deadline to file 2009 taxes looming, many divorced and separated couples are in the process of determining how they will file their taxes and which parent will claim the children for tax purposes.  Though I am not an accountant and I highly encourage everyone with tax questions to discuss them with a tax professional, here is some basic tax information to keep in mind this tax season.

First, your marital status for tax purposes is set as of the last day of the calendar year.  If you are legally married as of December 31st of a given year, you must file as “married.”  If your marriage has been dissolved or invalidated as of December 31st of a given year, you must file as “single.”  

If you are filing as married, you must make the decision whether to file “married, filing jointly,” or “married, filing separately.”  Many couples will see a tax benefit by filing jointly, even if they are living separately.  As such, I always encourage my clients to explore both options with an accountant before making the decision how to file. 

Another major issue for separated or divorced couples is determining which parent is entitled to claim the exemptions for the minor children.  Dependency exemptions and the corresponding child tax credit can be traded back and forth.  However, the IRS assumes that the parent who has the children the majority of the time is entitled to the exemptions, so parties must use IRS tax form 8332 if they will be trading the exemptions back and forth.  

Unlike the dependency exemption and child tax credit, the Earned Income Credit and day care credit go to the parent who has the children in their care more than half the time.  The Earned Income Credit is also only available if the parent claiming the credit has an income of under a certain amount.  Check with a tax professional if you are unsure if you qualify.  

Tax exemptions can be a major issue in divorce cases, as claiming minor children can provide a huge tax benefit to one or both parents.  Because tax exemptions can also affect child support, I encourage clients to discuss all the options with an accountant.