Divorce

Sample Montana Parenting Plan: Misc. Provisions

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.

Sample Montana Parenting Plan: Residential Changes

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.

Sample Montana Parenting Plan: Parental Responsibilities

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.

Sample Montana Parenting Plan: Introduction

This is the first of a series of articles where I will show you parts of an actual parenting plan prepared by my office. I’ll also shed some light on the considerations that go into drafting each section to give you an idea of a few things that are important to keep in mind when approaching this topic. Because it is just not practical (or very beneficial) to do so, I will not be posting the entire parenting plan. Remember, these are just pieces of the picture and not a substitute for legal advice. If you are creating a parenting plan on your own, Montana Legal Services has created a series of forms to help. I recommend starting with the Questionnaire link at the top of the page.

The following is actual language (with the names changed) from a parenting plan my office created. These are some of the general provisions and are relatively common across all parenting plans. In fact, as we’ll discuss in a moment, this information is generally required in all plans.

GENERAL PROVISIONS

Identification of Child. The parties have one child, as identified below:

NAME                    BIRTHDATE
Only Child             See Confidential Disclosure Statement

Residency of Parents. The legal residences of the parties are:
Homer Simpson                                     Marge Simpson
P.O. Box 123                                           P.O. Box 999
Springfield, Montana 59911               Springfield, Montana 59911
406-555-1234                                         406-555-9876

Objectives of Parenting Plan. This plan is intended to:

  1. Protect the child’s best interests;
  2. Provide for the physical care of the child;
  3. Maintain the child’s emotional stability and minimize the child’s exposure to parental conflict;
  4. Provide for the child’s changing needs as the child grows and matures, in a way that minimizes the need for future amendment to this Parenting Plan;
  5. Set forth the authority and responsibilities of each parent with respect to the child during the pendency of this action; and
  6. Help the parties avoid expensive future court battles over the child.

Obviously, I have not represented the fictional Simpsons in a divorce. But, no matter who the client is, most of these provisions would be identical. Obviously, the identifying information changes from person to person. The name and made-up address for Homer and Marge would be changed to reflect that of yourself and your spouse. Also, notice that the name of the child is not mentioned, it says “only child.” This is because Montana law requires that we protect the identity of minor children involved in a divorce. Instead of identifying the child by name in this filing, which is public record, a separate document is filed which includes the child’s name and social security number, and other personal information. That document is sealed by the court protecting it from prying eyes and identity thieves.

The first item under Objectives of Parenting Plan should look familiar if you have been reading my past entries. The best interests of the child is paramount in all divorce proceedings involving children. So in a parenting plan, we put it front and center to make it clear that this plan attempts to provide for the child’s best interests, and not necessarily the parent’s. Items two and three share this same idea, and I don’t believe require any further explanation.

Items four, five, and six all share the common theme of demonstrating that the plan contemplates the future and not just the immediate needs of the child. The process of creating a Montana parenting plan between two divorcing spouses (or two spouses who were never married) is time consuming and expensive. Ideally, you should only have to do it once. These provisions indicate to the court that this plan is not a band-aid, but a (hopefully) permanent solution that will allow the parents to work together in raising their child. Obviously, these provisions do little or nothing on their own, but they do signify to the court what to look for in the rest of the plan.

As we examine other parts of this sample Montana parenting plan, you will see how these basic ideas are specifically addressed. As a divorce attorney practicing in Kalispell, Montana, I have a great deal of experience drafting parenting plans, and would be happy to share my expertise with you. Please call anytime to set up an appointment.

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.

Parenting Plans in Montana – more than just a Residential Schedule

When a divorcing couple first thinks of a parenting plan or visitation schedule, they often think only about where their children will spend their time, what days of the week will be dad’s or mom’s, and which parent will have more time with the children.  While the Residential Schedule is certainly a huge part of a Parenting Plan (and often the most contentious ), Parenting Plans are designed to deal with a number of other issues that arise between divorced parents.  

The Montana law regarding final parenting plans allows parents to divvy up or share parenting functions.   Parenting functions are defined in the statue as “those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child.”  Parenting functions can include anything from providing daily care for a child to major decision making.   Some of the functions that should be addressed in a parenting plan are set forth in the relevant part of the Montana Code Annotated: 

M.C.A. 40-4-234 (2) Based on the best interest of the child, a final parenting plan may include, at a minimum, provisions for:
     (a) designation of a parent as custodian of the child, solely for the purposes of all other state and federal statutes that require a designation or determination of custody, but the designation may not affect either parent’s rights and responsibilities under the parenting plan;
     (b) designation of the legal residence of both parents and the child, except as provided in 40-4-217;
     (c) a residential schedule specifying the periods of time during which the child will reside with each parent, including provisions for holidays, birthdays of family members, vacations, and other special occasions;
     (d) finances to provide for the child’s needs;
     (e) any other factors affecting the physical and emotional health and well-being of the child;
     (f) periodic review of the parenting plan when requested by either parent or the child or when circumstances arise that are foreseen by the parents as triggering a need for review, such as attainment by the child of a certain age or if a change in the child’s residence is necessitated;
     (g) sanctions that will apply if a parent fails to follow the terms of the parenting plan, including contempt of court;
     (h) allocation of parental decision making authority regarding the child’s:
     (i) education;
     (ii) spiritual development; and
     (iii) health care and physical growth;
     (i) the method by which future disputes concerning the child will be resolved between the parents, other than court action; and
     (j) the unique circumstances of the child or the family situation that the parents agree will facilitate a meaningful, ongoing relationship between the child and parents. 

While this section of the statute sets forth the minimum requirements of a parenting plan, some parties end up negotiating and agreeing upon provisions that are even more specific.  For example, I had a client that included a provision regarding when their child could receive a haircut.  I have also had numerous parents include a provision about where their children will attend school long-term.  Religious upbrining is also a popular issue to spell out specifically in the parenting plan.    

Clearly, parenting plans are not just for residential schedules.  The goal is to come up with a plan that will work for the family and, as always, addresses the best interest of the minor children.

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.

Summary Dissolutions – the Quickie Divorce?

Montana’s 1991 Legistlature created a simplified process for couples to more quickly and easily end their marraige.  Summary dissolutions are reserved for those couples who are in agreement about ALL aspects of their divorce from property distribtuion to parenting.   In addition, you and your spouse must meet the following statutory requirements:

1.         You or your spouse have lived in Montana (or either of you was a member of the armed services stationed and residing in Montana) for at least 90 days before the filing of the action;

2.         Irreconcilable differences have caused the irretrievable breakdown of the marriage, and you both agree that the marriage should be dissolved;

3.         The wife is not pregnant AND (a) there are no children from the relationship; or (b) you have agreed-upon and executed a parenting plan and child support and medical support has been determined;

4.         Neither of you has any legal interest in real property such as homes, land or buildings.  This provision does not apply to a lease on a residence which is occupied by either spouse as long as the lease does not have an option to buy and the lease terminates withint one year from the date the Petition for Dissolution is filed;

5.         There are no unpaid, unsecured obligations in excess of $8,000 incurred by either or both of the parties after the date of their marriage.  “Unsecured” debts are those that are not secured by a specific piece of property.  For example, a credit card debt is generally unsecured debt;

6.         The total fair market value of your and your spouse’s assets, excluding secured obligations, is less than $25,000.  Assets include all things of value such as vehicles, personal belongings, furniture, etc.;

7.         Both of you have signed an agreement agreeing to the division of property and who will be responsible for any bills or obligations.  Signed documents, title certificates, bills of sale, or other evidence of transfer or agreement should be presented to the court at the time of your hearing to confirm the division and responsibilities;

8.         Both spouses  give up their individual right to maintenance (also known as alimony or spousal support);

9.         Both spouses give up their individual right to appeal the terms of the dissolution and your right to move for a new trial once the marriage is formally dissolved by the court;

10.      Both spouse have read and state that you understand the contents of this summary dissolution booklet; and

11.       Indicate to the court that you want the court to end the marriage.

While the steps can seem a bit cumbersome at first glance, the summary dissolution process is usually signficantly faster, easier and cheaper than the full dissolution process.   Forms for the summary dissolution process can be found online on the Montana Courts website.