General

What to do if you have been defaulted in a Montana divorce or parenting case

If you have ever been served with legal paperwork, you have likely seen and, hopefully, read a Summons.  Though drafted by opposing counsel or the opposing party, a Summons is actually issued by the Clerk of Court.  The Summons announces the deadline by which to respond to the paperwork you were served.  In a divorce/dissolution or parenting plan case, you are allowed twenty days from the date of service to respond to the Petition.  If you fail to respond in twenty days, the opposing party may request the court enter your default.

If your default has been taken and you wish to continue with the case, you will be unable to do so until you first have your default set aside.  This means, you must prove to the court that the default was incorrectly entered against you or you have some reason that you were unable to respond in a timely manner.

Under the Montana Rules of Civil Procedure, the court may set aside a default for good cause.  In order to establish good cause, a defaulting party must show: (1) the defaulting party proceeded diligently; (2) the defaulting party’s neglect was excusable;  (3) the defaulting party has a meritorious defense claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously.  See Mountain Sports, Inc. v. Gore, 85 P. 3d 1286, 320 Mont. 196 (2004).

If successful in having the default set aside, a divorce or parenting case then proceeds normally, as if the default had never happened.  Setting aside a default can be complicated and I am not aware of readily available forms for pro se litigants to use in such a circumstance.  If you have been defaulted in a case, contact an attorney as soon as possible.  If you cannot afford an attorney, contact Montana Legal Services or your self-help law center.

Depositions in Montana Family Law

While many Montana divorces/dissolution or parenting cases are fairly quick and amicable, some cases are very litigious and carry on for months or years.  If a divorce or parenting case is headed to trial, an attorney or party may determine it is necessary to take a deposition of a party to a case or a witness.  Because depositions are relatively rare in family law cases, litigants are often intimidated and unsure what to expect.

A deposition is basically sworn testimony taken outside of the court room.  A court report is present to keep a record of your testimony.  At a deposition, the person being deposed must be sworn, like they would if they were testifying at trial.  This means you are testifying under penalty of perjury and you must answer the questions both completely and truthfully.  It also means that the information you provide at a deposition could be used against you at trial if you testify to different facts at a later time.  Depositions are often used to gather information about a case.  For example, an attorney may choose to depose you if you have not provided answers to written requests for information.

Once sworn in, the attorney that requested the deposition will have the opportunity to ask the witness questions.  Once finished, the other attorney can ask clarifying questions to gather additional information.

Depositions can take a very long time, often more than one day, if there is a great deal of information to gather.  Though they can seem like a marathon, you are entitled to breaks and you may speak with your attorney during the deposition.  Once complete, the court reporter will provide a booklet of your deposition testimony for you to review for consistency.

Planning to Move After a Montana Divorce or Parenting Case

If you have minor children and had a Montana divorce or parenting plan case, you must be aware of the notice requirements under Montana law before you make a residential move that significantly affects your parenting plan.

Under M.C.A. 40-4-217, you MUST provide written notice to the other parent if you intend to make a residential change that will significantly affect the other parent.  Along with the written notice of your intent to move, you must supply the other parent with a proposed revised parenting plan, laying out how the residential schedule should work after your move.  Notice must be provided to the other parent no less than 30 days before you plan to move.  The notice must be provided either by certified mail or by personal service (i.e. served by a process server or sheriff’s officer).  Proof of services must be filed with the court.  Even if it has been many months or years since your dissolution or parenting case was completed, usually you may file the notice under the same cause number.

Once written notice and a proposed amended parenting plan has been supplied to the other parent, you must allow the other parent 30 days to respond to you.  If the other parent fails to respond in 30 days, it is deemed the parent accepted your proposed revised parenting plan.

If the other parent does not agree to your proposed revised parenting plan, the two of you would then need to follow the law for Amendment of a Montana Parenting Plan.

Modifying an Existing Montana Parenting Plan

Though Final Parenting Plans are designed to carry the parties to a dissolution or parenting action through the foreseeable future, there often comes a time when parents need to make changes to their Final Parenting Plan.  A parent may move, remarry, or obtain a new job.  Or as a child ages, their needs may change that make an old parenting plan impractical.  Occasionally, an emergency may arise with a child or parent that requires an immediate change to the parenting plan.

In order to modify a parenting plan, a parent must follow Montana’s statute governing the Amendment of Parenting Plans – M.C.A. 40-4-219.  Under Montana law, a parenting plan can be modified anytime both parents agree to the amendment.  If one parent does not agree, the other must prove that there has been a change in circumstances that makes an amendment necessary to serve the best interest of the child.  The change in circumstances must be based on facts that were unknown to the court when the prior plan was ordered or new facts that have arisen since the prior plan was put into place.

Many parenting plans include a “built in” review date.  In the event a parenting plan has a built in review date, a party may not need to show that a change in circumstance has occurred, provided the review date has passed.

Often parenting plans include a Dispute Resolution section which requires the parents attempt mediation before either of them can ask the court for an amendment of their parenting plan.   If that is the case, you may obtain names of mediators in your area from the Montana Mediation Association on their website.

If a modification of your parenting plan is appropriate, the court will consider the factors in Montana’s Best Interest of the Child statute.  Read the full text of the Best Interest of the Child statute.  The court may also consider the following:

– whether the parents agree to the amendment;

– whether the child has been integrated into the family of the petition with consent of the parents;

– whether the child is 14 years of age or older and desires the amendment;

– whether one parent has refused contact between the child and other parent or denied/frustrated contact between the child and the other parent; and

– whether a parent has or intends to change residences in a manner that will significantly affect the child’s contact with the other parent.

If you wish to modify your parenting plan, the first is to review your existing parenting plan for a review date and/or Dispute Resolution language.  If you do not have a copy of your parenting plan, you may obtain one for the clerk of court in the county your parenting plan was filed in.  Once you have a copy of your parenting plan, I encourage you to speak with an attorney about the modification process.


National Marriage Project Identifies Marriage Trouble Among Middle Americans

The National Marriage Project at the University of Virginia and the Center for Marriage and Families at the Institute for American Values released its 2010 “State of Our Unions” report earlier this week.  According to the study, “New data indicate[s] that trends in non-marital childbearing, divorce and marital quality in Middle America increasingly resemble those of the poor, many of whose marriages are fragile. However, among the highly educated and affluent, marriage is stable and appears to be getting even stronger – yet more evidence of America’s marriage gap.”

The study is reportedly the first to examine and address the causes of Middle America’s retreat from marriage in the last few years.  Some identified factors include Middle America’s shift in attitude about marriage, economic problems and declining religious attendance.  The report also found that marriage among affluent Americans is on the rise and more stable than ever.

Read the full report here.

Grandparent Visitation Rights in Montana

In many families, parents and grandparents get along well and share time with minor children without issue.  Because that is not always the case, occasionally a grandparent will find themselves in the unenviable situation of asking a court to grant them time with their grandchild.
In Montana, third party contact is generally within a parent’s discretion.  Provided a parent is fit, the law generally allows a parent to determine whether or not their child has contact with grandparents, other relatives, etc.
Before a Montana court may grant a grandparent’s petition for grandparent-grandchild contact over the objection of a parent, the court must first determine if the parent is a fit parent.  When determining if a parent is fit, the court will examine whether or not a parent adequately cares for the child.

If the court determines the parent is unfit, the court then must make a determination if grandparent-grandchild contact would be in the best interest of the minor child.

If the court determines the parent is fit, a grandparent must show both: (1) grandparent-grandchild contact is in the child’s best interest; and (2) the presumption in favor of the parent’s wishes has been rebutted.

Occasionally,  parents and grandparents will enter into a specific visitation schedule.  Much like a parenting plan, a grandparent visitation schedule outlines specific dates and times the child is to spend with the grandparent.   In the event parents and grandparents make such an agreement, a drawn-out court process may be avoided.

Huffington Post Launches Divorce Section

Huffington Post Editor-in-Chief Arianna Huffington announced earlier this week that the news site would be launching a divorce section.  “If you want to know about planning a wedding or things like that, there are so many places for people to go, but there isn’t one go-to place around divorce,” says Editor-in-Chief Arianna Huffington.

American film director, journalist, and screenwriter Nora Ephron has been tapped to be the founding editor.  You know Ephron from her work on such films as Julie & Julia, When Harry Met Sally, and Sleepless in Seattle. No stranger to the Huffington Post, Ephron originally got involved with the site when she was tapped by Arianna Huffington to write about her knowledge of the identity of “Deep Throat” from the Watergate Scandal.

According to reports, the new divorce vertical will discuss topics such as dating and raising children post-divorce.   Last summer, Arianna Huffington blogged about her own post-divorce experience.  See the article here.

Are you Married? The Ins and Outs of Montana Common Law Marriage

There is a lot of misconception regarding common law marriage.  Many believe that if a couple lives together for a certain period of time they will simply “wake up common law married one day.”  Luckily for thousands of couples sharing a residence, it takes more than a few months under the same roof to create a common law marriage in Montana.
Under Montana law, it is presumed that a man and woman deporting themselves as husband and wife have entered into a “lawful contract of marriage.”  This means that if you hold yourself out as being married, the law presumes that you are, in fact, married.
In order to show you and your partner “held yourselves out as married,” you must prove the following:
(1) You and your partner were competent to enter into the marriage;
(2) There was an assumption of a marital relationship by mutual consent and agreement;
(3) Cohabitation occurred; and
(4) You and your partner acquired the reputation, character and status of marriage in public (i.e. others think you are married).
Some common facts seen in common law marriage cases are things like filing taxes as a married couple; exchanging rings; calling each other “husband” and “wife;” introducing one another as a spouse; checking the married box on forms for insurance, etc.; and, for a woman, going by the man’s last name.
I am often asked why someone would deny they were common law married or why someone would claim they were common law married even if they were not.
Generally, you see disputes about the validity of common law marriage in two kinds of cases.  First, common law marriage is often disputed in divorce cases.  Because there is no such thing as common law divorce, if a couple is common law married, they must go through the official dissolution process to have their marriage dissolved.  Sometimes a party to a disputed common law marriage would be entitled to a significant amount of assets if they were common law married.  Or a person may deny a common law marriage in an attempt to protect their finances.
Another common area of law where common law marriage is seen is probate/estate cases.  If a couple is common law married and a spouse dies, the remaining spouse may be entitled to a more significant portion of the estate if the couple was married versus if they were simply in a cohabitating/dating relationship.
If you believe you may be common law married and you and your spouse are separating.  It is important that you see an attorney to assist you in protecting your rights during a divorce proceeding.

Proxy Divorce in Montana

If you were married by proxy and now need a divorce, or are stationed overseas and need somewhere to get divorced, there is now an option. A new service is offering proxy divorces for the first time. As I understand it, there are two requirements: 1) There can be no minor children of the marriage; and 2) You and your spouse have to agree about everything. If you meet those requirements, and need a way to get divorced – check out Proxy Divorce and see if they can help.

One thing I’ve learned from my practice is that there are a lot of people unable to get divorced because no courts will take their cases. This is a great option for people caught in that limbo. If you’re not sure whether you qualify, go ahead and contact that people at Proxy Divorce to learn more. From personal experience, I can tell you they’re friendly and helpful.

A proxy divorce takes about six weeks, can be done from anywhere in the world, and requires no travel. This service has already helped a lot of people, and hopefully it can help you if you’re in this kind of a situation.

 

Because Montana is the only state that allows double proxy marriage, I often receive questions from individuals seeking a proxy divorce.  Although a proxy divorce is now possible, the lawyer in me wants to mention the fact that it is not technically a proxy situation. That being said, it still provides a legal and easy divorce.

First, “proxy” is defined as “a person authorized to act for another.”  In a proxy marriage, an individual stands in for one of the parties during the ceremony.  So, there are actually three people that are part of the ceremony:  the wife, the husband, and the proxy (who is standing in for one of the spouses).  Most often you see proxy marriages when one party is overseas or on military duty.   During the marriage ceremony, the proxy stands in for the person that is not available.  The marriage ceremony takes place, just as it would if both of the parties to the marriage were there an in person.  In a double proxy marriage, both the husband and wife are unable to be present, so proxies stand in for both.  See more information on proxy marriages and double-proxy marriages here.  If you are interested in obtaining a proxy marriage or double-proxy marriage, check out Armed Forces Proxy Marriages at their website.

Because the term “proxy” actually requires an individual to act on behalf of someone, a “proxy divorce” does not really exist.  In a divorce/dissolution, the only parties to the case are the husband and wife.  No third party is needed to stand in for either party.  When someone requests a proxy divorce, they likely are asking if they can get divorce somewhere other than where they are that day.   With today’s technology and easy access to internet and long-distance telephones, it is absolutely possible to get divorce when you live out of state.

 

Economic Downturn Results in Decreased Divorce/Infidelity Rates

A recent Wall Street Journal article reports that the Center for Disease Control and Prevention released new data indicating the national divorce rate is at its lowest point since the 1970s.  According to a University of Virginia project analyzing the CDC data, the divorce rate per 1,000 married women dropped from 16.9 in 2008 to 16.4 in 2009.  The last two years’ figures pale in comparison to the rate in 1980, which was 22.6 divorces per 1,000 married women.
The data also reflects that infidelity rates have decreased over the past several years. Specifically, the Wall Street Journal reports,  “For those who are married currently in the 2000s, 16% of men and 10% of women said they had an affair while married. In the previous decade, 16% of men and 11% of women said they’d cheated. The number of women who said that infidelity was “always wrong” increased to 84% in the 2000s, up from 73% in the 1970s. Some 78% of men in the 2000s said infidelity was wrong, compared with 63% in the 1970s.”
Read the full article here or read the CDC statistics for yourself here.