Montana House Bill No. 573 (1997)

Requiring mutual consent for no-fault divorce based on separation, and having court consider the best interest of the children before granting a contested divorce based on fault or marital discord (irretrievable breakdown).

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House Bill No. 573

INTRODUCED BY JORE

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE LAWS GOVERNING THE
DISSOLUTION OF MARRIAGE; DEFINING "ADULTERY", "IRRETRIEVABLE BREAKDOWN",
"BEST INTEREST OF THE CHILD", "FAULT", AND "SERIOUS MARITAL DISCORD";
REQUIRING THE BEST INTEREST OF THE CHILD TO BE THE PRIMARY CONSIDERATION
IN PROCEEDINGS; REQUIRING FAULT TO BE CONSIDERED IN PROPERTY AND
MAINTENANCE PROCEEDINGS; AND AMENDING SECTIONS 40-4-101, 40-4-104,
40-4-105, 40-4-107, 40-4-121, 40-4-202, 40-4-203, 40-4-204, AND
40-4-212, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 40-4-101, MCA, is amended to read:

"40-4-101. Purposes -- findings -- definitions. (1) It is the policy of
the state to recognize that the institution of marriage is the basic
unit of societal stability. The institution of marriage is basic to
morality and civilization and promotes loyalty, commitment, trust,
mutual support, faithfulness, self-sacrifice, adherence to duty, hope,
and love. The legislature finds that the family is the unit of
self-government that is best able to teach and practice the virtues that
benefit not only the members of the family, but also all citizens of
this state and this country.

(2) This chapter must be liberally construed and applied to
promote its underlying purposes, which are to:

(a) strengthen and preserve the integrity of marriage and safeguard
family relationships;

(b) promote the amicable settlement of disputes that have arisen
between parties to a marriage while recognizing the legal and moral
duties owed to each other by the parties to the marriage;

(c) mitigate the potential harm to the children
caused by the process of legal dissolution of marriage;

(d) make reasonable provision for spouse and minor children during
and after litigation; and

(e) promote the interests of Montana citizens and families by reducing
social and human costs generated by the breakdown of families; and

(f) make the law of legal dissolution of marriage effective for
dealing with the realities of matrimonial experience by making
irretrievable breakdown of the marriage relationship the sole basis for
its dissolution.

(3) As used in this chapter, the following definitions apply:

(a) "Adultery" means sexual intercourse between a married person and a
person who is not the married person's spouse.

(b) (i) "Best interest of the child" means the highest concerns,
advantages, and benefits necessary for a child's daily existence,
well-being, and growth. The best interest of the child may consider
monetary matters AND the moral welfare
of the child. [Editor's note -- As I understand it and recommend it, this
definition is to be used in deciding whether to allow divorce, not in
custody determinations. That is why it makes sense to take monetary matters
into account -- because the issue is whether the child should suffer the
economic consequences of divorce, and NOT which parent is wealthier, as
detailed immediately below.]

(ii) The term does not include the mere prospect that the child may have
a more luxurious life with one parent than with the other parent.

(c) "Fault" means:

(i) adultery subsequent to the date of marriage;

(ii) desertion, which may be established by incarceration;

(iii) spousal assault, EITHER PHYSICAL OR EMOTIONAL, OTHER PHYSICAL
ABUSE, OR child abuse, which does not include reasonable corporal
punishment, or other physical abuse; or
[Editor's note -- I strongly disapprove of the "emotional assault" idea --
it's a real minefield unless you're in a state where it's a long-standing
legal term that's been interpreted by the courts in a consistent,
predictable and reasonable manner. The few cases where "emotional assault"
is a valid concern can be better dealt with by the traditional "cruelty"
ground of divorce, which works well in Virginia, or by its equivalents in
other states.]

(iv) abuse of alcohol or a controlled substance.

(d) "Irretrievable breakdown" means:

(i) a mutual agreement by the parties that there is no reasonable
likelihood that the marriage can be preserved; or

(ii) the allegations of fault raised in the petition or response have
been established.

(e) "Serious marital discord" means any allegation of fault."

Section 2. Section 40-4-104, MCA, is amended to read:

"40-4-104. Dissolution of marriage -- legal separation. (1) The district
court shall enter a decree of dissolution of marriage if:

(a) the court finds that one of the parties, 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 next preceding the making of
the findings;

(b) the court finds that the marriage is irretrievably broken, which
findings must be supported by evidence:

(i) that the parties have lived separate and apart by mutual agreement
for a period of more than 180 days next preceding the commencement of
this proceeding; or

(ii) that there is serious marital discord which adversely affects the
attitude of one or both of the parties towards the marriage;

(c) the court finds that the conciliation provisions of the Montana
Conciliation Law and of 40-4-107 either do not apply or have been met;
and

(d) to the extent it has jurisdiction to do so, the court has
considered, approved, or made provision for child custody, the support
of any child entitled to support, the maintenance of either spouse, and
the disposition of property.

(2) 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."

Section 3. Section 40-4-105, MCA, is amended to read:

"40-4-105. Procedure -- commencement -- pleadings -- abolition of
existing defenses.
(1) The verified petition in a proceeding for
dissolution of marriage or legal separation must allege that the
marriage is irretrievably broken and must set forth:

(a) the age, occupation, and residence of each party and the length
of each party's residence in this state;

(b) the date of the marriage and the place at which it was registered;

(c) that the jurisdictional requirements of 40-4-104 exist and that the
marriage is irretrievably broken in that either:

(i) the parties have lived separate and apart pursuant to mutual
agreement for a period of more than 180 days preceding the
commencement of this proceeding; or

(ii) there is serious marital discord that adversely affects the
attitude of one or both of the parties toward the marriage and
there is no reasonable prospect of reconciliation;

(d) the names, ages, and addresses of all living children of the
marriage and whether the wife is pregnant;

(e) any arrangements as to support, custody, and visitation of the
children and maintenance of a spouse; and

(f) the relief sought.

(2) Either or both parties to the marriage may initiate the proceeding.

(3) If a proceeding is commenced by one of the parties, the other party
must be served in the manner provided by the Montana Rules of Civil
Procedure and may within 20 days after the date of service file a
verified response. A decree may not be entered until 20 days after
the date of service.

(4) Previously existing defenses to divorce and legal separation,
including but not limited to condonation,
CONNIVANCE, COLLUSION, recrimination, insanity, and lapse of time, are
abolished.

(5) The court may join additional parties proper for the exercise of its
authority to implement this chapter."

Section 4. Section 40-4-107, MCA, is amended to read:

"40-4-107. Irretrievable breakdown. (1) If both of the parties by
petition or otherwise have stated under oath or affirmation that the
marriage is irretrievably broken, the court, after hearing, shall make a
finding as to whether the marriage is irretrievably broken.

(2) If one of the parties has denied under oath or affirmation that the
marriage is irretrievably broken, the court shall consider all relevant
factors, including the circumstances that gave rise to filing the
petition and the prospect of reconciliation, and shall:

(a) make a finding as to whether the marriage is irretrievably broken;
or

(b) continue the matter for further hearing not fewer than 30 or more
than 60 days later or as soon thereafter as the matter may be reached on
the court's calendar 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. At the adjourned
hearing, the court shall make a finding as to whether the marriage is
irretrievably broken.

(3) A finding of irretrievable breakdown is a determination that there is
no reasonable prospect
of reconciliation. If a finding of irretrievable breakdown is based on
fault, the acts of one party do not negate the acts of the other party,
but the court may consider the acts of both parties in determining
whether there is an irretrievable breakdown in the marriage. The court
shall consider the best interest of the child of the marriage as the
primary consideration in making a determination under this section.

(4) This section may not be interpreted to affect
the provisions of chapter 3 of this title, known as the Montana
Conciliation Law."

Section 5. Section 40-4-121, MCA, is amended to read:

"40-4-121. Temporary order or temporary injunction. (1) In a proceeding
for dissolution of marriage or for legal separation or in a proceeding
for disposition of property or for maintenance or support following
dissolution of the marriage by a court that lacked personal jurisdiction
over the absent spouse, either party may move for temporary maintenance
or temporary support of a child of the marriage entitled to support. The
motion must be accompanied by an affidavit setting forth the factual
basis for the motion and the amounts requested.

(2) As a part of a motion for temporary maintenance or support or by
independent motion accompanied by affidavit, either party may request
the court to issue a temporary injunction for any of the following
relief:

(a) restraining any person from transferring, encumbering, concealing,
or otherwise disposing of any property, except in the usual course of
business or for the necessities of life, and, if so restrained,
requiring the person to notify the moving party of any proposed
extraordinary expenditures made after the order is issued;

(b) enjoining a party from molesting or disturbing the peace of the
other party or of any family member or from stalking, as defined in
45-5-220;

(c) excluding a party from the family home or from the home of the other
party upon a showing that physical or emotional harm would otherwise
result;

(d) enjoining a party from removing a child from the jurisdiction of the
court;

(e) ordering a party to complete counseling, including alcohol or
chemical dependency counseling or treatment;

(f) providing other injunctive relief proper in the circumstances; and

(g) providing additional relief available under Title 40, chapter 15.

(3) A person may seek the relief provided for in subsection (2) without
filing a petition under this part for a dissolution of marriage or legal
separation by filing a verified petition requesting relief under Title
27, chapter 19, part 3. Any temporary injunction entered under this
subsection must be for a fixed period of time, not to exceed 1 year, and
may be modified as provided in Title 27, chapter 19, part 4, and
40-4-208, as appropriate.

(4) The court may issue a temporary restraining order for a period not
to exceed 20 days without requiring notice to the other party only if it
finds on the basis of the moving affidavit or other evidence that
irreparable injury will result to the moving party if no order is issued
until the time for responding has elapsed.

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

(6) At the time of the hearing, the court shall determine whether good
cause exists for the injunction to continue for 1 year.

(7) On the basis of the showing made and in conformity with 40-4-203 and
40-4-204, the court may issue a temporary injunction and an order for
temporary maintenance or support in amounts and on terms just and proper
in the circumstance. The court shall consider the best interest of the
child of the marriage as the primary consideration in making a
determination under this section.

(8) A temporary order or injunction, entered pursuant to Title 40,
chapter 15, or this section:

(a) may be revoked or modified on a showing by affidavit of the facts
necessary to revocation or modification of a final decree under
40-4-208;

(b) terminates upon order of the court or when the petition is
voluntarily dismissed; and

(c) when issued under this section, must conspicuously bear the
following: "Violation of this order is a criminal offense under 45-5-220
or 45-5-626."

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