Montana LGBT divorce provides same-sex couples with the same legal rights and procedures as opposite-sex couples when ending their marriage. Since same-sex marriage became legal in Montana in November 2014, lesbian couples, gay couples, and all same-sex couples have equal access to divorce through Montana's district courts. This comprehensive guide explains everything about Montana LGBT divorce, including unique considerations that may affect same-sex couples during the divorce process.
Legal Recognition of Same-Sex Marriage and Divorce in Montana
Understanding the legal history of same-sex marriage in Montana helps clarify current Montana LGBT divorce rights.
When Same-Sex Marriage Became Legal
Same-sex marriage became legal in Montana on November 19, 2014, when U.S. District Court Judge Brian Morris ruled that Montana's ban on same-sex marriage violated the 14th Amendment's Equal Protection Clause. This decision was affirmed when the U.S. Supreme Court ruled in Obergefell v. Hodges on June 26, 2015, establishing marriage equality nationwide.
Before 2014, Montana law defined marriage as the union between one man and one woman. Montana voters had approved a constitutional amendment in November 2004 that restricted marriage to opposite-sex couples. These restrictions no longer apply.
Equal Rights in Montana LGBT Divorce
Montana law provides same-sex couples with identical divorce rights as opposite-sex couples. When pursuing Montana LGBT divorce, lesbian couples and gay couples navigate the same legal process as any other married couple. District courts in Montana handle all divorce cases, regardless of the spouses' sexual orientation or gender identity.
Family law attorneys confirm that Montana LGBT divorce follows the exact same procedures under Montana law as any other dissolution of marriage.
Montana LGBT Divorce Process
The Montana LGBT divorce process follows standard procedures established for all divorces in the state.
Residency Requirements
To file for Montana LGBT divorce, you or your spouse must have lived in Montana for at least 90 days immediately before filing the divorce petition. This 90-day requirement applies equally to same-sex couples and opposite-sex couples.
If you have children from the marriage, they must have resided in Montana for at least six months before you can file for dissolution involving child custody issues. District courts require this six-month residency to establish jurisdiction over parenting matters.
Grounds for Montana LGBT Divorce
Montana operates as a no-fault divorce state for all couples, including those pursuing Montana LGBT divorce. The only ground for divorce in Montana is that the marriage is "irretrievably broken."
To prove irretrievable breakdown, you must show either:
- You and your spouse have been living separate and apart for more than 180 days before filing for divorce, or
- There is serious marital discord that negatively affects either spouse's attitude toward the marriage
Montana courts do not consider fault or misconduct when granting Montana LGBT divorce. Neither spouse must prove wrongdoing by the other.
Filing for Dissolution
Montana LGBT divorce begins when one spouse files a Petition for Dissolution of Marriage with the clerk of the district court in the appropriate county. The filing process is identical for all couples.
The petition must include:
- Names and addresses of both spouses
- Date and place of marriage
- Statement that the marriage is irretrievably broken
- Information about any children
- Requests regarding property division, child custody, and support
Montana LGBT divorce cases proceed through district courts using the same forms and procedures available to all married couples.
Unique Considerations in Montana LGBT Divorce
While Montana LGBT divorce follows the same legal process, same-sex couples may face some unique situations requiring special attention.
Marriage Before Legalization
Some same-sex couples lived together for years before same-sex marriage became legal in Montana in 2014. This creates potential complications in Montana LGBT divorce regarding:
Property Acquired Before Marriage: Assets acquired during your relationship but before you could legally marry may not qualify as marital property under Montana law. Property division in Montana LGBT divorce typically only includes assets acquired after the marriage date.
Relationship Duration vs. Marriage Duration: Even if you were together for 20 years, if you only married in 2015, Montana courts may consider your marriage length as approximately 10 years for purposes of property division and spousal maintenance.
Family law attorneys can help identify strategies for addressing pre-marriage relationship years in Montana LGBT divorce cases.
Out-of-State Marriages
Many same-sex couples married in states where same-sex marriage was legal before Montana recognized it. If you married elsewhere but now live in Montana, you can file for Montana LGBT divorce as long as you meet Montana's 90-day residency requirement.
The date of your original marriage (regardless of where it occurred) establishes your marriage length for Montana LGBT divorce purposes.
Parentage and Adoption Issues
Parent adoption and child custody present unique considerations in Montana LGBT divorce for lesbian couples who used assisted reproduction or gay couples who used surrogacy.
- Non-Biological Parents
If only one spouse is the biological parent, the non-biological parent may need to establish legal parentage through second-parent adoption. Montana law permits second-parent adoption, which allows one partner to adopt their spouse's biological or adopted child without terminating the other parent's rights.
- Assisted Reproduction for Lesbian Couples
Montana law recognizes the non-genetic, non-gestational mother as a legal parent when a child is born via donor insemination, but only if the parents were married at conception. This protects both parents' rights in Montana LGBT divorce involving children born through assisted reproduction during the marriage.
- Adoption Rights
Both same-sex couples and opposite-sex couples can adopt jointly in Montana. In Montana, LGBT divorce cases involving adopted children, both parents typically have equal parental rights established through the adoption.
Child Custody and Parenting in Montana LGBT Divorce
Child custody decisions in Montana LGBT divorce are based entirely on the children's best interests, with no consideration of parents' sexual orientation.
Establishing Parental Rights
Before addressing child custody in Montana LGBT divorce, both parents must have established legal parental rights. This typically occurs through:
- Being listed as a parent on the birth certificate (if married when child was born)
- Completing second-parent adoption
- Being the biological parent
- Being an adoptive parent through joint adoption
If only one spouse has legal parental rights, the other spouse may have limited rights in Montana LGBT divorce unless they can establish parentage through adoption or other legal means.
Parenting Plans
Montana law requires all divorcing couples with minor children to develop parenting plans. In Montana LGBT divorce, district courts evaluate parenting plans using the same best interests standards applied to all families.
Montana parenting plans must address:
- Residential schedule showing where children will live
- Parenting time for each parent
- Decision-making authority for major issues
- Holiday and vacation schedules
- Transportation arrangements
- Child support obligations
District court judges in Montana LGBT divorce cases focus solely on what serves the children's best interests, not on parents' sexual orientation or gender identity.
Child Support
Child support calculations in Montana LGBT divorce follow the same guidelines used for all divorces. Montana uses an income shares model that considers both parents' income and the number of children.
The district court judge determines child support based on established guidelines, not on the parents' sexual orientation. Both parents have equal financial obligations to support their children in Montana LGBT divorce.
Property Division in Montana LGBT Divorce
Property division follows Montana's equitable distribution principles in Montana LGBT divorce.
Marital Property vs. Separate Property
Montana law distinguishes between marital and separate property. In Montana LGBT divorce, marital property typically includes:
- Assets acquired during the marriage
- Income earned during marriage
- Property purchased with marital funds
- Appreciation of separate property during marriage (in some cases)
Separate property generally includes:
- Assets owned before marriage
- Inheritances received by one spouse
- Gifts given specifically to one spouse
- Property acquired in exchange for separate property
Equitable Distribution
Montana courts divide property equitably (fairly) rather than equally in Montana LGBT divorce. District court judges consider factors including:
- Length of the marriage (from legal marriage date)
- Age and health of both spouses
- Income and earning capacity
- Standard of living during marriage
- Contributions to marital property
- Homemaker contributions
- Future financial opportunities
The relatively recent legalization of same-sex marriage means many Montana LGBT divorce cases involve shorter legal marriages even when couples were together much longer. This can affect property division outcomes.
Pre-Marriage Cohabitation Assets
Assets acquired while living together before same-sex marriage was legal present challenges in Montana LGBT divorce. Montana law generally does not recognize these as marital property since they were acquired before the legal marriage.
Family law attorneys may explore various legal theories to address pre-marriage assets, but outcomes depend on specific circumstances and how assets were held.
Spousal Maintenance in Montana LGBT Divorce
Spousal maintenance (alimony) in Montana LGBT divorce follows strict requirements under Montana law.
Qualifying for Maintenance
To receive spousal maintenance in Montana LGBT divorce, the requesting spouse must prove:
- They lack sufficient property to provide for reasonable needs, AND
- They cannot support themselves through appropriate employment, OR they have custody of a child whose condition makes employment inappropriate
If these requirements are met, the district court considers additional factors:
- Financial resources of each spouse
- Time needed for education or training
- Standard of living during marriage
- Length of the marriage
- Age and physical/emotional condition
- Ability of the paying spouse to meet their needs while paying maintenance
Length of Marriage Considerations
The length of the marriage significantly affects spousal maintenance in Montana LGBT divorce. Because same-sex marriage only became legal in Montana in 2014, even long-term couples may have relatively short legal marriages.
Courts typically award longer-term maintenance for longer marriages. Same-sex couples who were together for many years but only recently able to marry may receive less maintenance than their relationship duration would suggest.
Working With Family Law Attorneys
While some Montana LGBT divorce cases can be handled without attorneys, legal representation often proves valuable.
When to Seek Legal Help
Consider consulting family law attorneys experienced in Montana LGBT divorce when:
- Children are involved and only one spouse has established legal parentage
- You lived together for years before you could legally marry
- Significant assets were acquired before your legal marriage
- You married in another state before Montana recognized same-sex marriage
- You face contested issues regarding child custody or property division
- Your spouse has legal representation
Family law attorneys familiar with Montana LGBT divorce understand unique issues facing same-sex couples.
Finding LGBT-Friendly Attorneys
When seeking representation for Montana LGBT divorce, look for family law attorneys who:
- Have experience with same-sex divorce cases
- Understand unique parentage issues for lesbian couples and gay couples
- Are familiar with assisted reproduction and adoption law
- Demonstrate comfort and competence with LGBT family issues
- Have positive reviews from LGBT clients
Many bar associations and LGBT legal organizations maintain directories of family law attorneys experienced in Montana LGBT divorce.
Living Separate and Apart
Many Montana LGBT divorce cases involve periods of living separate before filing. Montana law recognizes living separate and apart for 180 days as evidence of irretrievable breakdown.
Living separate means maintaining separate residences, not just sleeping in different rooms. This 180-day period can help establish grounds for Montana LGBT divorce when serious marital discord is difficult to prove.
Timeline for Montana LGBT Divorce
Montana LGBT divorce follows the same timeline as other divorces:
- Minimum 21-day waiting period after serving divorce papers
- Uncontested divorces typically take 2-4 months
- Contested divorces generally take 6-12 months or longer
- Complex property division or child custody disputes extend the timeline
District courts in Montana handle Montana LGBT divorce cases with the same efficiency and procedures used for all divorces.
Before You File a LGBT Divorce in Montana
Montana LGBT divorce provides same-sex couples with equal legal rights and procedures for ending their marriage. Since same-sex marriage became legal in Montana in 2014, lesbian couples and gay couples have full access to dissolution of marriage through district courts, with the same rights regarding child custody, child support, property division, and spousal maintenance as opposite-sex couples.
While Montana LGBT divorce follows identical procedures under Montana law, same-sex couples may face unique considerations regarding pre-marriage cohabitation, parent adoption for non-biological parents, and the relatively short period during which same-sex marriage has been legal. These issues can affect property division and spousal maintenance in ways that require careful attention from experienced family law attorneys.
Whether you're a lesbian couple or a gay couple considering Montana LGBT divorce, understanding your rights under Montana law helps you make informed decisions. The 180-day separation option, no-fault grounds, and equitable property distribution principles apply equally to all couples. Child custody decisions focus solely on children's best interests without regard to parents' sexual orientation.
Resources, including the Montana Legal Services Association, family law attorneys experienced with same-sex couples, and LGBT legal organizations can provide valuable support during a Montana LGBT divorce. With proper information and appropriate legal assistance when needed, same-sex couples can navigate the dissolution process with the same rights and protections available to all Montana families.