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Family Law. UBE Seminar August 1, 2013. Premarital agreements MCA 40-4-601 to -610. A premarital agreement must be in writing and signed by both parties prior to the marriage. It is enforceable without consideration .

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Family law

Family Law

UBE Seminar

August 1, 2013


Premarital agreements mca 40 4 601 to 610

Premarital agreementsMCA 40-4-601 to -610

  • A premarital agreement must be in writing and signed by both parties prior to the marriage.

  • It is enforceable without consideration.

  • The contract may address property rights, modification or elimination of spousal support upon a dissolution, execution of wills, and other matters.

  • A premarital agreement may not adversely affect child support.

  • A premarital agreement becomes effective upon marriage.


Enforceability

Enforceability

  • A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

  • the party did not execute the agreement voluntarily; or

  • the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

    • (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

    • (ii) did not voluntarily and expressly waive, in writing, any right to disclosure; and

    • (iii) did not have knowledge of the property or financial obligations of the other party.


Marriage

Marriage

  • Marriage is a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential. 40-1-103, MCA.

  • Mont. Const., Art. XIII, Sec. 7: Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.


Marriage by license

Marriage by license

  • The most typical method of marriage in Montana is through the issuance of a license, followed by solemnization by an authorized official.

  • The license is issued by the clerk of court. 40-1-201, MCA.

  • $53 fee.

  • Both parties must be 18, or have judicial approval if 16 or 17.

  • Rubella test for female, or waiver of test signed by both parties.


Marriage by proxy

Marriage by proxy

  • If a party is unable to be present at the solemnization of the marriage, the party may authorize in writing a third person to act as proxy. 40-1-301, MCA.

  • One party to a proxy marriage must be a member of the armed forces of the United States on federal active duty or a resident of Montana at the time of application.


Marriage by declaration

Marriage by declaration

  • Instead of having the marriage solemnized in a ceremony, a couple may execute and file with the clerk of court a declaration of marriage. 40-1-311, MCA.

  • The declaration must be subscribed by the parties and attested by at least two witnesses and formally acknowledged before the clerk of the district court of the countyin which the marriage contract was executed.

    • $53 filing fee

    • Rubella certificate or waiver required


Common law marriage

Common law marriage

  • Montana recognizes common law marriages.

  • A party asserting a common law marriage must establish:

    • (1) the parties are competent to enter a marriage

    • (2) the parties assumed a marital relationship by mutual consent;

    • (3) the parties confirmed their marriage by cohabitationandpublic repute that the parties are married (i.e., a “holding out” to the public that they are married.

  • There is no “magic” number of years of cohabitation that results, ipso facto, in a common law marriage.

  • People who cohabitate but who do not hold themselves out as married do not have a common law marriage.


Prohibited marriages

Prohibited marriages

  • The following marriages are prohibited under MCA 40-1-401:

  • a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

  • a marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood, or between first cousins;

  • a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood;

  • a marriage between persons of the same sex.


Civil unions not recognized

Civil unions not recognized

  • A contractual relationship entered into for the purpose of achieving a civil relationship that is prohibited is void as against public policy. 40-1-401(4), MCA.


Uniform marriage divorce act

Uniform marriage & divorce act


No fault

‘no-fault’

  • Concept of “no fault” divorce.

  • A court must enter a decree of dissolution if the statutory requirements are met.

  • A dissolution proceeding is initiated by the filing of a verified petition by either one or both parties.

    • Co-petitioners rather than petitioner/respondent


Jurisdiction

jurisdiction

  • The court has jurisdiction if either party, at the time the action was commenced, was domiciled in this state,

  • or was stationed in this state while a member of the armed services and

  • that the domicile or military presence has been maintained for 90 days preceding the filing of the action.

  • Venue: county where one of the party has resided for 90 days, but can be changed by consent of both parties.


Irretrievably broken

Irretrievably broken

  • The court must find that the marriage is irretrievably broken, which must be supported by evidence:

    • that the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding; or

    • that there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage.


Family law

  • If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall:

    • make a finding whether the marriage is irretrievably broken (no prospect of reconciliation); or

    • continue the matter for further hearing and may suggest to the parties that they seek counseling.

  • The court at the request of either party shall, or on its own motion may, order a conciliation conference.


Other decree provisions

Other decree provisions

  • To the extent it has jurisdiction to do so, the court’s decree of dissolution must consider and provide for:

    • parenting, if minor children;

    • the support of any child entitled to support and provision of health insurance or medical support,

    • the maintenance of either spouse, and

    • the disposition of property (which includes the allocation of debt).

  • Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order the wife's maiden name or a former name restored.


Legal separation

Legal separation

  • If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects. 40-4-104(2), MCA.

  • After 6 months (and not before), either party may request that the decree of separation be converted into a decree of dissolution.


Summons

summons

  • Unless both parties have filed and signed the petitioner as co-petitioners, the clerk of court issues a summons to the respondent.

    • If serving by mail, DON’T mail the original!

  • The summons contains a temporary restraining orderthat restrains bothparties from transferring, encumbering, concealing, or in any way disposing of any property without the consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.


Temporary orders

Temporary orders

  • Either party may seek temporary orders, such as temporary child support or maintenance, or an order excluding one of the parties from the family home.

  • The party against whom a temporary injunction is sought must be served with notice and a copy of the motion and is entitled to a hearing on the motion.

  • A response may be filed within 20 days after service of notice of motion or at the time specified in the temporary restraining order.

  • Upon a showing “irretrievable injury,” an order may be made effective without a hearing for a period of up to 20 days.


Preliminary financial disclosure

Preliminary financial disclosure

  • The parties must exchange preliminary financial disclosures within 60 days of service of the petition, executed under penalty of perjury. 40-4-252, MCA

  • The parties may waive preliminary financial disclosures or extend time for disclosure.

  • Preliminary financial disclosures are NOT to be filed with the court, unless the court so approves.

    • Nonetheless, many self-help forms of petition contain the financial disclosures.

  • Perjury may be grounds for setting aside the decree.


Final financial disclosures

Final financial disclosures

  • The parties must exchange final financial disclosure statements before or at time of entering property settlement or support agreement.

    • Or 45 days before trial if no agreement.

  • The time frame for exchange may be modified by written stipulation or oral stipulation made in court.

    • Unlike preliminary financial disclosure statements, there is no statutory provision to waive final disclosures.

  • Failure of a party to disclose an asset is presumed to be grounds for the court to award the undisclosed asset to the opposing party.


Property distribution 40 4 202 mca

Property distribution40-4-202, mca

  • Montana is NOT a community property state.

  • Property is to be apportioned equitably.

  • Factors include the duration of the marriage and prior marriage of either party; the age, health, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income.

  • Premarital agreements are to be enforced.


Marital estate

Marital estate

  • The marital estate consists of all property owned by either or both spouses, including property acquired prior to marriage or property acquired by gift or inheritance.

  • However, in distributing pre-acquired property or gifted/inherited property, the court must consider the contributions of the other spouse to the marriage, including:

    • the nonmonetary contribution of a homemaker;

    • the extent to which such contributions have facilitated the maintenance of this property; and

    • whether or not the property division serves as an alternative to maintenance arrangements.


Recent case law

Recent case law

  • In applying this statute, the Montana Supreme Court had previously stated that a “court cannot distribute to the non-acquiring spouse property acquired prior to the marriage or acquired by gift, bequest, devise, or descent when there is no evidence that the spouse made any contribution to those assets in any form."

  • The Montana Supreme Court recently overruled this line of decisions as an incorrect application of the statute, and clarified the proper application of the statute in In re Funk, 2012 MT 14.


Property settlement agreements

Property settlement agreements

  • Most commonly, the parties are able to achieve an agreement as to the distribution of property and allocation of liabilities.

  • Must be signed by both parties; typically is incorporated into the decree of dissolution.

  • Regarding joint liabilities, an agreement between the parties that one spouse will assume the agreement is NOT a release or novation.

    • The creditor can still seek to collect from either party.

    • The spouse who wasn’t allocated the debt then has a cause of action against the spouse who agreed to pay the debt.


Parenting plans

Parenting plans

  • Lots of confusion, because clients talk in terms of “custody,” and that term is no longer used in the statutes.

  • The court shall determine the parenting plan in accordance with the best interest of the child. 40-4-212, MCA.

  • No maternal preference.


Factors include

Factors include …

  • the wishes of the child (no “magic” age);

  • the interaction and interrelationship of the child with the child's parents and siblings;

  • the child's adjustment to home, school, and community;

  • the mental and physical health of all individuals involved;

  • any physical abuse or threat of physical abuse by one parent against the other parent or the child;

  • chemical dependency issues

  • whether a parent has knowingly failed to financially support a child when able to do so

  • Whether the plan provides for regular contact with both parents


Other orders

Other orders

  • Appointment of guardian ad litem or attorneys for children

  • Counseling

    • Standing order of 4th, 21st judicial districts for mandatory parenting plan orientation program

  • Evaluations/investigations

  • Mediation


Child support

Child support

  • Parents are obligated to provide “child support and education suitable to the child's circumstances.” 40-6-211, MCA

  • Support continues until the later of:

    • The child’s 18th birthday

    • The child’s graduation from high school, but no later than turning 19

  • The court order must address the provision of health insurance and medical support. 40-4-204(4)


Guidelines

guidelines

  • The Department of Health and Human Services, Child Support Enforcement Division, has promulgated guidelines for the calculation of child support.

  • http://www.dphhs.mt.gov/csed/packet/guidelines.shtml

  • The guidelines must be used in all cases, including agreements reached between the parties. 40-4-204(3), MCA.

  • The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or that it is inappropriate in that particular case.


Spousal maintenance

Spousal maintenance

  • What we used to call “alimony.”

  • Generally disfavored in Montana. In re Marriage of Luisi, 232 Mont. 243, 247(1988).

  • Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance. 40-4-208(4), MCA

  • Tax implications: to be deductible by paying spouse, must meet IRS requirements.


Factors

factors

  • the financial resources of the party seeking maintenance;

  • the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

  • the standard of living established during the marriage;

  • the duration of the marriage;

  • the age and the physical and emotional condition of the spouse seeking maintenance; and

  • the ability of the spouse from whom maintenance is sought to meet the spouse's own needs while meeting those of the spouse seeking maintenance.


Uncontested hearing

Uncontested hearing

  • If the parties are able to enter into an agreement relating to the division of property, maintenance, parenting plan, and child support, the matter is set on the uncontested docket.

  • The petitioner presents testimony to establish that the jurisdictional requirements are met, the distribution of property is equitable, and the parenting plan is in the best interests of the child.

  • The respondent consents to the entrance of a decree based upon the agreement.


Vital statistics form

Vital statistics form

  • The Montana State Case Registry and Vital Statistics Form must be completed and filed with the clerk of court before a divorce decree or support order can be docketed. MCA §40-5-908(1).

  • Come to the hearing with a $45 docketing fee

  • The form contains the information necessary to comply with MCA §§40-5-907 (providing information to CSED) and 50-15-302.


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