Marital Domestic Separation and Property Settlement Agreement Adult Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in Montana, but does include
basic and other provisions.
General Summary:
In Montana, it is the policy of the Courts
to promote amicable settlement of disputes between parties to a marriage
attendant upon their separation or the dissolution of their marriage.
The parties may enter into a written separation agreement containing provisions
for disposition of any property owned by either of them, maintenance of
either of them, and support, parenting, and parental contact with their
children.
In a subsequent proceeding for dissolution of marriage or for legal
separation, the terms of the separation agreement, except those providing
for the support, parenting, and parental contact with children, are binding
upon the court unless it finds, after considering the economic circumstances
of the parties and any other relevant evidence produced by the parties,
on their own motion or on request of the court, that the separation agreement
is unconscionable.
Statutes:
MONTANA CODE
Title 40
Family Law
CHAPTER 2
HUSBAND AND WIFE
Part 3
Power of Married Persons to Contract
Husband and wife may contract:
Either husband or wife may enter into any engagement or transaction with the other or with any other
person respecting property which either might, if unmarried, subject in
transactions between themselves to the general rules which control the
actions of persons occupying confidential relations with each other, as
defined by the provisions of this code relative to trusts. Section
40-2-301.
Alteration of legal relation by contract - separation agreement:
A husband and wife cannot by any contract with each other alter their legal
relation, except as to property and except that they may agree, in writing,
to an immediate separation and may make provision for the support of either
of them and of their children during such separation. Section 40-2-303.
Consideration for separation:
The mutual consent of the parties is a sufficient consideration for such an agreement as mentioned
in 40-2-303. Section 40-2-304.
Marriage settlement contracts -- how executed:
Except as provided in part 6 [Uniform Premarital Agreement Act] of this chapter,
all contracts for marriage settlements must be in writing and executed
and acknowledged or proved in like manner as a grant of land is required
to be executed and acknowledged or proved. Section 40-2-312.
Effect of recording: Except as provided in part 6 [Uniform
Premarital Agreement Act] of this chapter, the recording or nonrecording
of such contract has a like effect as the recording or nonrecording of
a grant of real property. Section 40-2-314.
Marriage settlement by minors:
A minor capable of contracting marriage may make a valid marriage settlement, as herein provided.
Section 40-2-315.
CHAPTER 4
TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT
Part 2
Support, Custody, Visitation, and Related Provisions
Separation agreement:
(1) To promote amicable settlement of disputes between
parties to a marriage attendant upon their separation or the dissolution
of their marriage, the parties may enter into a written separation agreement
containing provisions for disposition of any property owned by either of
them, maintenance of either of them, and support, parenting, and parental
contact with their children. In cases in which children are involved, the
separation agreement may contain a parenting plan as required in 40-4-234.
(2) Subject to subsection (7), in a proceeding for dissolution
of marriage or for legal separation, the terms of the separation agreement,
except those providing for the support, parenting, and parental contact
with children, are binding upon the court unless it finds, after considering
the economic circumstances of the parties and any other relevant evidence
produced by the parties, on their own motion or on request of the court,
that the separation agreement is unconscionable.
(3) If the court finds the separation agreement unconscionable,
it may request that the parties submit a revised separation agreement or
it may make orders for the disposition of property, maintenance, and support.
(4) If the court finds that the separation agreement is not
unconscionable as to disposition of property or maintenance and not unsatisfactory as
to support:
(a) unless the separation agreement provides to the
contrary, its terms must be set forth in the decree of dissolution or legal
separation and the parties ordered to perform them; or
(b) if the separation agreement provides that its terms may
not be set forth in the decree, the decree must identify the separation
agreement and state that the court has found the terms not unconscionable.
(5) Terms of the agreement set forth in the decree are enforceable
by all remedies available for enforcement of a judgment, including contempt,
and are enforceable as contract terms.
(6) Except as provided in subsection (7) and except for terms
concerning the support, parenting, or parental contact with the children,
the decree may expressly preclude or limit modification of terms set forth
in the decree if provided for in the separation agreement. Otherwise, terms
of a separation agreement set forth in the decree are automatically modified
by modification of the decree.
(7) The decree may be modified, as provided in 40-4-251 through
40-4-258, for failure to disclose assets and liabilities. Section
40-4-201.
Modification and termination of provisions for maintenance, support,
and property disposition:
(1) Except as otherwise provided in 40-4-201(6), a decree
may be modified by a court as to maintenance or support only as to installments
accruing subsequent to actual notice to the parties of the motion for modification.
(2) (a) Except as provided in 40-4-251 through 40-4-258,
whenever the decree proposed for modification does not contain provisions
relating to maintenance or support, modification under subsection (1) may
only be made within 2 years of the date of the decree.
(b) Except as provided in 40-4-251 through 40-4-258,
whenever the decree proposed for modification contains provisions relating
to maintenance or support, modification under subsection (1) may only be
made:
(iii) upon application by the department of public health
and human services, whenever the department of public health and human
services is providing services under Title IV-D of the federal Social Security
Act. The support obligation must be modified, as appropriate, in accordance
with the guidelines promulgated under 40-5-209. Except as provided in 40-4-251
through 40-4-258, a modification under this subsection may not be made
within 12 months after the establishment of the order or the most recent
modification.
(c) The nonexistence of a medical support order, as defined in
40-5-804, or a violation of a medical support order justifies an immediate
modification of child support in order to:
(3) The provisions as to property disposition may not be revoked
or modified by a court except:
(b) if the court finds the existence of conditions that justify
the reopening of a judgment under the laws of this state.
(4) 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.
(5) Provisions for the support of a child are terminated
by emancipation of the child or the child's graduation from high school
if the child is enrolled in high school, whichever occurs later, but in
no event later than the child's 19th birthday, unless the termination date
is extended or knowingly waived by written agreement or by an express provision
of the decree. Provisions for the support of a child do not terminate upon
the death of a parent obligated to support the child. When a parent obligated
to pay support dies, the amount of support may be modified, revoked, or
commuted to a lump-sum payment, to the extent just and appropriate in the
circumstances.
(6) The decree may be modified, as provided in 40-4-251 through
40-4-258, for failure to disclose assets and liabilities. Section
40-4-208.
Case Law:
Section 40-4-201(5), MCA (1989), provides that marital or "property
settlement agreements" are governed by the laws of contract. Quinn v.
Quinn, (1981), 191 Mont. 133, 136, 622 P.2d 230, 232.
Where there is no ambiguity the court is without power to insert
new provisions into the contract. City of Billings v. Public Serv. Comm'n (Mont.
1981), [194 Mont. 173,] 631 P.2d 1295, 1307, 38 St.Rep. 1162, 1173. In
Danielson v. Danielson (1977), 172 Mont. 55, 58, 560 P.2d 893, 895, it was held
that it is the duty of the district court to enforce contracts, not to make
new ones for the parties, however unwise the terms may appear.
