Do you need to get divorced after common law marriage in Montana?

Montana law recognizes common law marriage, which is a marriage formed without a license and solemnization.  In order to have a valid common law marriage, three elements must be present:

(1) The parties must be competent to enter the marriage.  The competency requirements for common law marriage are the same as those in a traditional marriage.  The parties cannot be related to a certain degree, cannot already be married, cannot be members of the same sex and must have the mental capacity to enter into a marriage relationship.

(2) The parties must have entered into the marriage by mutual consent and agreement.  This means that at the time the marriage relationship was created, both parties agreed and consented to be a part of it.  It does not mean, however, that a party can simply decide to no longer be common law married.  If you and your partner agreed and consented to common law marriage, you cannot just withdraw from the marriage after created.  Instead, the parties to a common law marriage must go through a divorce in the same way a couple that married through a ceremony would.

(3) The parties must confirm the marriage by cohabitation and public repute.  In other words, the couple must hold themselves out as a married couple.  To determine whether a couple has held themselves out as married, the Montana Supreme Court has considered a number of things including, but not limited to, exchanging rings, taking the partner’s last name, filing joint tax returns, referring to one another as “husband” and “wife,” and filing out documents or forms as husband and wife.

Contrary to popular belief, there is no magic period of time that people living together are automatically assume to be common law married.  Montana law requires the existence of all elements.  As such, living together for a number of years, but not holding yourselves out as married, will not automatically result in a common law marriage.

A Common Law Marriage is a REAL marriage, meaning it requires a divorce/dissolution to terminate the relationship.  The parties to a divorce based on common law marriage are dealt with exactly as they would be if they had a traditional marriage.  Occasionally, if parties disagree whether or not they were common law married, the court will have to make a determination whether or not a common law marriage existed.  Upon death of one party, the surviving party to a common law marriage has the same right with regard to inheritance than any traditional spouse would have.

In Montana, a couple can complete an Affidavit of Common Law Marriage to remove doubt as to whether or not a couple was common law married.   Completion of the Affidavit would provide presumptive evidence if the marriage were later disputed.

Learning about courtroom procedure in a Montana divorce or custody case

There is a great deal of valuable and reliable information available for divorce litigants regarding Montana family law works and where to find forms to file.  However, there seems to be a lack of information on how divorce procedure works.  This leaves many litigants, particularly unrepresented litigants, completely terrified of walking into court.  Though it is impossible to convey the finer points of trial advocacy through a blog, some basic tips about what to expect when you walk in to court can help ease some of that anxiety.

Scheduling, practice and procedure can very from county to county and even from judge to judge.  Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case.  In Flathead County (where I the bulk of my practice takes place), you can access each of the Judges’ court schedules (also known as the “docket”) online.  Nearly all court proceedings are open to the public, so do not hesitate to go see the courtroom, watch your judge in action, and become familiar with how your judge runs her/his courtroom.  I find that seeing where your hearing/trial will take place and watching how your judge works calms a massive amount of those pre-hearing jitters.

If you are involved in a divorce case, you can pick out a hearing for another divorce case.  You will know it is a divorce case because the case will be called “In re Marriage of____.”  For parenting cases, find a case called “In re Parenting of ______.”   Though the online docket does not tell you what kind of hearing it is (i.e. child support, contempt, interim parenting, etc.), you can always contact the Clerk of District Court to find out what kind of motion the hearing is about.

Spending some time in the courtroom is one of the easiest ways to learn about court procedure.  Pay attention to where the parties sit, how witnesses are sworn, and what kinds of questions the witnesses are asked.  Taking this simple step will ease a lot of your concern about heading into a courtroom for your own hearing or trial.

Surviving the Holidays After Divorce

Though many consider the holidays to be a time to celebrate peace and love, divorced couples can find it difficult to put down their swords.  The holidays can be difficult for divorced parents, but even more so for their children.  The following tips from licensed psychotherapist Donna Ferber should help such parents help their children have a better holiday season:

  1. Money, gifts, sweets and indulging don’t “make up” for anything. Your child is going to have TWO Christmases. No need to feel guilty. Most kids say the dual holidays are the best thing about being a divorced kid.
  2. If possible, make your plans with your ex-spouse ahead of time and stick to them. Let the kids know where they will be and when. It helps them feel in control. Let them make only age appropriate decisions. A good rule of thumb: if it is not a decision you would let your children make while you were married, then don’t let them make it now. Let your kids be kids.
  3. Be flexible. No, this is not a contradiction of #2. It means that stuff happens. So if your ex is two hours late because of an ice storm or because his cousin Joey showed up late, try to let it go.
  4. Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.
  5. Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.
  6. Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.
  7. The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.
  8. Divorce is the severing of the adult relationship and should not be the termination of the parent-child relationship, no matter how much you really can’t stand him/her. If your child is not in harm’s way, the relationship needs to continue. This is the CHILD’s right. If you really feel the child is in danger, then get a lawyer, prove it and have supervised visitation. Never keep a child from being with a parent based on your own feelings!
  9. Lastly, remember that you are the adult. Suck up your anger toward your ex and make the holidays wonderful for your kids.

Source:  “Children, Divorce & the Holidays: Making it Happy not Horrible!” by Donna F. Ferber, LPC, LADC, a licensed psychotherapist in Connecticut and the author of From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com.

Divorce Rates Soar…Online???

We are constantly faced with articles and stories about the divorce rate.  So much so that nearly every American can quote the current divorce rate (about 50%) without skipping a beat.  Amazingly, there is one place were the divorce/annulment rate has soared to 75% – the internet.

The hugely successful online role-playing game MapleStory recent reported that the divorce rate in cyberland is currently at about 75%.  Nexon, the makers of MapleStory, recently reported that of the 26,982 in-game marriages (which cost $25.00 a pop, by the way) that took place this year, 20,344 ended in annulment/divorce.

Just like divorce in the real world, MapleStory players don’t divorce for free.  An in-game divorce costs 500,000 Mesos (aka MapleStory money) and players must relinquish their wedding ring.  Players must also wait ten days before marrying someone else.



Kalispell Child Custody / Parenting Plan Resources – Attorneys, Mediation, Etc.

It has been several months since I have blogged about the resources available to those in the process of divorcing or dealing with child custody/parenting issues in the Kalispell area.  Whether or not you have a Kalispell attorney to assist you with your Kalispell child custody/parenting case, you may want to look into the following resources, many of which are at little to no cost.

1.  Kalispell/Flathead County Self Help Law Center

If you are able to visit the Flathead County Justice Center in Kalispell, you can find the Self-Help Law Center on the third floor.   The Self-Help Law Center is open from 9:30 a.m. to 5:00 p.m. on Monday, Tuesday, Thursday and Friday.  There is generally a resource officer on staff and can help you locate the documents needed to file for divorce or parenting on your own.

2.  Nurturing Center

From supervised visits to parenting education, the Nurturing Center provides comprehensive support to families in the Flathead Valley.  Located at 146 Third Avenue West in downtown Kalispell, the Nurturing Center can provide valuable parenting resources to those involved in Kalispell child custody/parenting cases, whether or not an attorney is involved.

3.  MontanaLawHelp.org

Whether or not you live in the Flathead, MontanaLawHelp.org offers free fill-in-the-blank dissolution and parenting plan forms.  While I highly recommend all people looking into filing for a dissolution or parenting plan at least meet with an attorney to discuss their legal options, the Montana Law Help forms can keep the overall cost of your divorce down.

As always, I encourage anyone going through a child custody or parenting case to meet with an attorney to discuss their options.  Even when you may not be able to afford an attorney to assist you throughout your case, an hour consultation is likely worth your time and money.

Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

Montana’s Constituion allows for direct appeals from Distrt Court judgments or orders (whether the case is civil or criminal), directly to the Montana Supreme Court.  Unlike many other states, Montana does not have an intermediate appellate court.  Instead, cases go directly from District Court to the state Supreme Court. 

The party that initiates an appeal is called the “Appellant.”  The party responding is called the “Appellee” or “Respondent.”  Appellate is a very different animal than district court.  Appellate procedure has its own set of rules, separate from the Montana Rules of Civil Procedure.  The appellate rules are called the Rules of Appellate Procedure and can be found in Title 25, Chapter 21 of the Montana Code.  

The Montana Supreme Court is located in Helena, MT.  This means that any documents filed in your appeal are filed in Helena and any oral argument would take place in Helena (except in a few very limited circumstances).  Oral argument does not happen in all cases.  In fact, many appeals never require an appearance in person at the Montana Supreme Court.   The great thing about that is Montana litigants have a much larger pool of attorneys to choose from.  You could easily hire an attorney at the other end of the state to handle an appeal.  All the documents go to the place regardless ofwhere you live! 

If you are appealing a family law case from a Montana District Court to the Montana Supreme Court, you will likely have to head back to mediation.  Under Rule 7 of the Montana Rules of Appellate Procedure, domestic relations (divorce/parenting/child support/maintenance) cases are submitted to mandatory appellate alternative dispute resolution (i.e. mediation).   

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work.  It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal.   Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.

Montana Supreme Court: Mediation not mandatory in divorce/parenting cases where abuse is suspected

In a case decided on April 12, 2011, the Montana Supreme Court ruled that domestic violence victims no longer can be forced into mediation over parenting plans in Montana divorce cases.

The case, entitled Hendershott v. Westphal, makes clear that MCA 40-4-301(2) “explicitly prohibits courts in family law proceedings from authorizing or continuing mediation of any kind where there is a reason to suspect emotional, physical or sexual abuse.”  In other words, a court can no longer mandate dispute resolution or mediation when abuse is reasonably suspected.

Perhaps more significant is the Court’s determination that the statute does not require proof of abuse “by clear and convincing evidence, a preponderance of the evidence, or even probable cause.”  Instead, a court must simply have a “reason to suspect” that emotional, physical, or sexual abuse has taken place.  If a reason to suspect is found, no mediation can be mandated.  

Read the full opinion of the case at the Montana Courts website

Part III – Five Questions Every Client Should Ask Their Montana Divorce Attorney

This post is the third in a five part series on questions you should ask your divorce attorney before you sign on the dotted line.  Check out Part I here and Part II here – and look forward to Parts IV and V in the next few days.


Imagine it:  you have hired an attorney, plopped down the several thousand dollar retainer fee and you are feeling confident and secure in the future of your case.  Then, a few weeks later, you get your first bill.  You realize how truly expensive it can be to have an attorney represent and you  see that a huge chunk of your retainer has been spent.  A month later, little money is left.  A month after that, you receive a bill a realize you owe your attorney money.   Panic sets in.  Despite the warnings form your attorney, you figured (or hoped) your case would be cheap and easy.   If you haven’t spoken to your attorney about this scenario, you haven’t adequately prepared yourself for the sticker shock that often occurs during the first few months of representation.

Because every divorce case is different, some clients end up in a much lengthier and expensive divorce than they expected.   At times, clients are unable to keep up with their bill and fall behind in payment.  Depending on the divorce lawyer, this can affect how your case is handled.   Find out how your perspective attorney handles these situations.  Does he/she allow you to make payments over time?  Does he/she accept credit card payments, which allows a client the opportunity to pay over time?  Does he/she stop representing a client if the client owes them money?  Does he/she send her clients to collections?  Does he/she charge late fees?

It is important to have this conversation before the situation arises, so that both you and the attorney are on the same page.   One of the worst things that can happen in a divorce is for a client to run out of money part way through and be left without an attorney.  In that case, you’ve paid an attorney to get you part of the way through, but not to the light at the end of the tunnel.  If the advance deposit is the only money you are going to be able to put towards the case, perhaps you should explore the options discussed in Part I of this series.


Part II – Five Questions Every Client Should Ask Their Montana Divorce Attorney

This post is the second of a five part series on questions you should ask your divorce attorney before you sign on the dotted line.  Check out Part I here and look forward to Parts III through V over the coming days.


Question 2 can be a bit misleading, because the big cost question is a loaded one!  Because most divorce lawyers charge their clients hourly, it can be very difficult to say exactly how much a divorce will cost.  As such, it can be very difficult (nearly impossible) for a divorce lawyer to give you a good estimate on the overall cost of your case.  There are a few things, however, your divorce attorney should be able to tell you about the costs:

(a) the attorneys’ hourly rate ($150-$250 is average for Kalispell divorce lawyers);

(b) the advanced-deposit or retainer that will be necessary (anywhere from $1,500 – $5,000+ for Kalispell divorce lawyers);

(c) if they have paralegals or staff that do work for them, what the paralegal/staff’s hourly rate is; and

(d) will I have filing fees or any costs other than your hourly fees?

Ideally, the answers to all of these questions will be able to be found in the divorce attorney’s Representation/Fee Agreement.  If you decide not to hire the attorney, you may never even get to see the Fee Agreement – all the more reason to ask the questions first!

If you are unsatisfied with any of the answers, ask follow up questions and find out why the office works the way it does.  Is the hourly rate for the attorney higher because they have more experience?  If so, you may feel a lot better about shelling out an extra $50.00 per hour.  Is your case complex?  It may explain an increase in the advance deposit or retainer fee required.  As always, shop around for an attorney until you feel comfortable with one.


Montana 2011 Legislative Session Update – Bill Requiring Counseling in Montana Divorce

House Bill 438, which would have required parties with minor children undergo counseling before they can divorce, appears to be dead.   After being revised in Committee and read for a second time, the bill failed 40 votes to 60 votes on February 19, 2011.   A few days prior, the bill made it out of the House Judiciary Committee with a vote of 13 – 7.  If it had passed, the bill would have required all parties with minor children to undergo counseling before the court could dissolve their marriage.

Read the full history of the bill, along with the most recent draft here.