Amount of property and money brought into a marriage is a major factor in property distribution in Montana: In re Marriage of Summerfelt

Alex M. Neill  -  Jul 29, 2011  -  Posted in Divorce, Property Division, Spousal Maintenance

In re Marriage of Summerfelt, 688 P.2d 8 (1984) is a case demonstrating how much the financial contributions of spouses at time of marriage matter upon divorce.

In this case, husband and wife were married in Townsend, Montana, in 1963.  At the time of the marriage, the wife had significantly more property than the husband.  The wife owned a ranch near Townsend with 3,880 acres, as well as an additional 120 acres of ranchland.  The wife further had 170 head of livestock, a 1/3 interest in three rental properties in Billings, as well as household furniture.

At the time of the marriage, the husband had a house in Helena that was subject to debt, a few vehicles and a trailer.

Although the husband and wife dispute how much wife’s property was worth at the time of the marriage, it was clear that wife had significantly more value in her property than did the husband.

In 1980, the wife filed for dissolution (divorce). The District Court determined that both husband and wife had worked hard during the marriage and contributed to their estate, and awarded property accordingly.

Although the wife appealed a few issues from the District Court decision to the MT Supreme Court, the most pertinent issue to us is:  Whether the award to the wife was inadequate in light of the financial condition of each of the parties at the outset of the marriage.

The well-established rule in Montana is:

“The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantial inequitable division of the marital assets resulting in substantial injustices.” In re the Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361.

Although the District Court did not determine the financial condition of the parties at the time of marriage,the Supreme Court determined that it was clear that the wife had brought substantially more into the marriage than the husband.  Therefore, the amount awarded to the husband was an abuse of discretion because of the parties’ financial condition when they got married.

The case was reversed and remanded to divide the marital assets.

You can view the case at: In re Marriage of Summerfelt



Pro Se Litigants: Resources for Divorce in Montana

Alex M. Neill  -  Jul 29, 2011  -  Posted in Adoption, Child Custody, Child Support, Divorce, Parenting Plans, Property Division, Spousal Maintenance, Uncategorized

There are resources in Montana for pro se litigants, those representing themselves without the help of a lawyer.  Montana is a state that tries to have justice accessible to all in need, regardless of their income level.

1. Montana Legal Services Association.  This organization provides free legal services for low-income Montanans.  You do have to qualify as low-income to be eligible for assistance with this program.  The closest office to Flathead County is in Missoula, at 211 North Higgins Ave., Suite 401, Missoula, MT.   Their hours are Monday to Friday, 7:30 a.m. to 5:15 p.m. They are also open on Saturdays from 9:15 a.m. to 12:45 p.m.  They can be reached at: (406) 543-8343.  I would recommend looking at their website: http://www.mtlsa.org/.  Their website provides all the information you need on the organization and how to receive their assistance.  You can also call their helpline directly at: 1 (800) 666-6899.

2. Flathead County Self-help Law Center. Flathead County is one of only two counties in Montana (the other county is Yellowstone County) that has a self-help law center.  Flathead County’s Self Help Law Center is located at the Flathead County Justice Center, at 920 South Main, Kalispell, MT.  The law center is now located in the basement of the Justice Center, and is by appointment only.  They cannot give legal advice but can provide basic information on forms, etc.  You can reach them at: (406) 758-2496.

3. Limited Scope Representation.  A lawyer can provide limited scope representation, meaning that they do not represent you through an entire case, but instead can assist you with the portions that you request help with, such as writing a reply brief for you.  This means that you can avoid the cost of a full retainer, and only pay limited fees for what the lawyer helps you with.  This is a great way to obtain affordable legal help for your Montana divorce.  This also means that the lawyer may not respond to the court or other side on your behalf, or appear in court for you, depending on your agreement.  Ask any family law lawyer about limited scope representation.

4. Montanalawhelp.org.  A great resource for Montanans looking for basic legal information.  They provide free fill-in-the-blank forms for dissolution and parenting plans.  If you choose to use their forms to help lower the costs of a divorce or parenting action, I would recommend you consult with a lawyer at least once for guidance on your particular case and needs.

5.  Need information? A one time consultation with a family law lawyer such as myself can lead you in the right direction on your case, and where to go from here.



Resources for Divorcing Families

Alex M. Neill  -  Jul 28, 2011  -  Posted in Child Custody, Child Support, Divorce, Parenting Plans

The following is a list of resources for divorcing families provided in a brochure called “Stepping Back From Divorce: Protecting Your Children During a Divorce,” by Montana Family Court Services:

1) For a brochure on joint custody:

Association of Family and Conciliation Courts.  329 W. Wilson St., Madison, WI, 53703.  (608) 251-4001.

2) Listings of Marriage and Family Therapists nationwide.  If your area does not have a chapter, call your state’s psychological association:

American Association for Marriage and Family Therapy.  1133 15th St. NW, Suite 300, Washington, DC 20005.  (202) 452-0109.  http://www.aamft.org

3) Assistance in locating a family mediator in your area:

Academy of family mediators.  5 Militia Drive. Lexington, MA 02173.  (781) 674-2663.  http://www.igc.apc.org/afm

4) Local chapters dealing with custody issues and divorce reform:

Children’s Rights Council.  300 “Eye” Street NE, Suite 401, Washington, DC, 20002.  (202) 547-6227.  http://www.vix.com/crc

5) Referral service of social workers who provide family counseling and/or mediation:

National Association of Social Workers.  750 First Street NE, Suite 700, Washington, DC 20002.  (202) 408-8600.  http://www.socialworkers.org

6) For a quarterly bulletin and booklet of educational resources for stepfamilies:

Stepfamily Association of America, Inc.  650 J. Street, Suite 205, Lincoln, NE, 68508.  (800) 735-0329.  http://www.stepfam.org

 

 



How is Child Support calculated in Montana?

Alex M. Neill  -  Jul 28, 2011  -  Posted in Uncategorized

Child Support awards are based on the Montana Child Support Guidelines, which are presumed to be an “adequate and reasonable support award” unless proven otherwise by clear and convincing evidence.  See MCA Section 40-4-204; In Re Marriage of Kotecki.

Income of each party must be determined.  The Guidelines define income as “actual income, imputed income, or any combination thereof which fairly reflects a parent’s resources available for child support.” Admin. R.M. 37.62.106(1).

The following factors are considered when the court considers what is reasonable and necessary for raising a child:

  • Financial resources available to the child;
  • Financial resources of each parent (income, etc.);
  • Standard of living the child would have had if the parents had stayed together;
  • The age of the child;
  • The child’s emotional, educational, and medical needs;
  • The cost of day-care;
  • The needs of any person, other than the child, whom either parent is legally obligated to support;
  • Any parenting plan that is ordered or decided upon; and
  • How much time the child spends with each parent.

*The amount of child support is not affected by marital fault or misconduct.



How do I get Child Support in Montana?

Alex M. Neill  -  Jul 28, 2011  -  Posted in Child Support

Child support is money paid from one parent to the other to provide care for any minor children.  Child support can be ordered by a court or an administrative agency such as CSED, the Montana Child Support Enforcement Division.

1) By a court

If the parties have minor children, child support must be ordered as part of a court-ordered parenting plan.  Your lawyer can calculate this for you using a computer software program and include it in your parenting plan for you.  This means that when a final parenting plan is established (see future blogs about parenting plans), the District Court will also order one or both parties to pay child support.

If the parties already have a valid Child Support and Medical Support Order, the court can just refer to that and deem it valid.

2) By CSED

You can also elect to get a Child Support calculation through CSED (MT Child Support Enforcement Division) rather than through a dissolution action through a court. CSED will calculate your child support for free, so this is a good way to save money.  However, keep in mind that they use a certain format for everyone, so there are advantages to having a lawyer calculate this for you to allow for more flexibility for you and your ex.

If you would like CSED to do your calculations, you need to contact them to request application materials.  Application materials are available on their website:

Montana Department of Public Health and Human Services.

CSED has different field offices around the state of Montana.  Region 5 is Flathead, Lake, Lincoln, Mineral, Missoula, and Sanders counties.  Their office is located in Missoula.  They can be contacted at: (406) 329-7910.  Their address is: 2675 Palmer Street, Suite C.

Child Support is not something to take lightly.  It is an important factor that will affect your and your child’s life post-divorce.

For more information on calculating Child Support for your minor children, please contact me.  I, or other family law attorneys can calculate this for you.

Please keep in mind, too, if you need child support calculated, and this is the only thing that you need done, limited scope representation is available.  Please see my blog on this topic: Limited Scope Representation.  This means that a lawyer can just do these calculations for you for a fee instead of having a lawyer represent you on all aspects of your case.

 

See my blog on how Child Support is calculated.

 

 

 



How does the Court system in Montana work for Divorce?

Alex M. Neill  -  Jul 28, 2011  -  Posted in Divorce, Uncategorized

There are 56 District Courts in Montana.  These courts are split into 22 Judicial Districts.

District Courts are courts of general jurisdiction.  This means that these courts process all felony cases, all probate cases, most civil law cases at law and in equity, naturalization proceedings and various writs.  Most importantly, to you, is that District Courts process divorce, as divorce is civil law.  So when you file for dissolution (divorce), you file in District Court.

Flathead County is the Eleventh Judicial District Court, which currently has 4 District Court Judges.

If you lose your case, you may want to appeal it, in hopes of a better outcome.  An appeal from a District Court in Montana (including Flathead County), goes directly to the Supreme Court of Montana, the highest court in the state.  Montana is one of ten states in the U.S. that does not have an intermediate appellate court.  This is how the Supreme Court of Montana receives civil and criminal appeals directly from Montana District Courts.

The Montana Supreme Court currently has a Chief Justice and 6 Associate Justices.  Although only 4 Associate Justices are provided for in the Montana Constitution, the Montana Legislature is allowed to increase this number to 6.  Each Justice is elected for a term of 8 years.  All Supreme Court justices must be United States citizens, and have resided in Montana for at least 2 years prior.  They must also have been licensed to practice law in the state of Montana for at least 5 years prior to being elected.

The Montana Supreme Court also has original jurisdiction (the power to hear a case for the first time, rather than the power to review a lower court’s decision) for cases not heard in District Court if there are no facts in dispute and the cases presents only legal or constitutional questions.

The Montana Constitution grants the Montana Supreme Court broad authority over the entire states courts to ensure smooth and effective operation.  The Montana Supreme Court also regulates admission of attorneys to the State Bar, as well as the conduct of attorneys and judges.



Will I automatically receive an asset if my spouse fails to disclose?

Alex M. Neill  -  Jul 27, 2011  -  Posted in Divorce, Property Division

Full disclosure is required by law in Montana when going through a dissolution.

While the statute does give the court discretion to award an undisclosed asset to the other party, this does not mean that the court will always do so.  It is within the court’s discretion.

A Montana Supreme Court case discussing this topic is: In Re Marriage of Gerhart, 2003 MT 292, 78 P.3d 1219 (2003).

In this case, the husband received a bonus and profit-sharing award and deposited the funds in an investment bank account.  The husband then failed to disclose this account in his Final Declaration of Disclosure.  The counsel for the wife requested the husband’s W-2 forms for the year 2001, and the husband amended his disclosure to include the account.  The wife received this amended disclosure only 2 days before trial.

Kevin testified that he had forgotten about the account, and had accidentally omitted the bonus and profit-sharing award, having placed his W-2 tax form in an envelope marked for his 2001 taxes without looking at it.

The District Court acknowledged the account containing the bonus and profit-sharing award, but decided not to include this account as a marital asset to be divided.

The wife appealed to the Supreme Court of Montana because the District Court denied her motion for amendment of the property distribution.

The Supreme Court discussed Section 40-4-253(4), MCA, which provides that a party’s failure to disclose an asset on his or her final disclosure declaration is presumed to be grounds for the court to award the undisclosed asset to the other party separate from the equitable division of the marital estate.   Therefore, it is clear that the statute authorizes a court to award undisclosed assets to the opposing party.

The question here is, is a court required to? The Supreme Court of Montana found that the statute only creates a presumption.

The following is the court’s reasoning:  ¶ 20 “Section 26-1-601, MCA, sets forth a list of conclusive presumptions, including “any other presumption, which, by statute, is expressly made conclusive,” while § 26-1-602, MCA, provides that all other presumptions are disputable and may be controverted by other evidence.  Section 40-4-253(4), MCA, on which Kimberly [the wife] relies, does not state that the presumption therein is conclusive.   Consequently, the presumption at issue is disputable.”

Since the husband had given testimony as to his reasoning why he was late in disclosing this account, it was within the District Court’s discretion to decide whether the husband’s testimony was credible.

Since the District Court accepted the husband’s explanation, the Supreme Court declined to disturb the decision, as the Supreme Court determined that the District Court did not abuse its discretion.

You can see this case here: In Re Marriage of Gerhart

Therefore, the presumption that failure to disclose an asset is grounds to award the asset to the other party is now considered disputable.  This means that you will not necessarily be awarded an asset the other party fails to disclose.  It will depend on the facts of the case, and it will be up to the court to decide what is proper.



What is the penalty for failure to disclose an asset or liability in Montana?

Alex M. Neill  -  Jul 27, 2011  -  Posted in Uncategorized

What is the penalty for failure to disclose an asset or liability?

Here’s where it shows how important it is to be honest.  You can always try to work with your spouse on how to divide things so that you can both come out as satisfied as possible.

The failure of a party to disclose an asset or liability on the final declaration of disclosure is presumed to be grounds for the court, without taking into account the equitable division of the marital estate, to award the undisclosed asset to the opposing party or the undisclosed liability to the noncomplying party.
This means that the other party may be awarded something that you didn’t disclose.  There is absolutely never a reason not to disclose everything.

What if the court finds that a party committed perjury on their disclosure down the road?

In addition to any other civil or criminal remedy available under law for the commission of perjury, the court may set aside the judgment, or part of the judgment, if the court discovers, within 5 years from the date of entry of judgment, that a party has committed perjury in the final declaration of disclosure.



What do I have to disclose to my spouse when I get divorced?

Alex M. Neill  -  Jul 27, 2011  -  Posted in Uncategorized

To see what the statute says about disclosures when going through a divorce, please see my blog: Do I have to Disclose all Assets During a Divorce in Montana?

Here are some examples of what my firm has our clients disclose.

  • Gross Income (including, but not limited to: interest, dividends, pensions, retirement, trust income, gifts, rental income, child support, alimony, unemployment, wages, salary)
  • Deductions
  • Vehicles
  • Housing (water, phone, TV, gas, electricity, real estate taxes)
  • Insurance
  • Any miscellaneous (pets, work uniform, maintenance to prior spouses, entertainment)
  • Groceries
  • House repairs
  • All personal effects

Honesty is the best policy.  Everything you can possibly think of should be disclosed to each party.



Do I have to disclose all assets during a divorce in Montana?

Alex M. Neill  -  Jul 27, 2011  -  Posted in Child Custody, Child Support, Divorce, Parenting Plans, Property Division, Spousal Maintenance

If you are going through a divorce, you must disclose everything that you own in an Income, Expense, Asset and Liability Disclosure Statement.

Full disclosure of all income and expenses is required by law.  It doesn’t matter if you have been living together for 20 years and are now getting divorced. Everyone has to fill this statement out, providing full disclosure.  This ensures that property can be divided equitably, as required in Montana.

Full disclosure is covered by section: MCA Section 40-4-253.

Each party must serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury:
(i) before or at the time that the parties enter into an agreement for the resolution of property or support issues, other than pendente lite support; or
(ii) in the event that the case goes to trial, no later than 45 days before the first assigned trial date.

The parties are allowed, by written stipulation or by oral stipulation made in open court, to change the time that they exchange the final declarations of disclosure, as long as they are in agreement.

The final declaration of disclosure must include all material facts and information regarding:

  • characterization of all assets and liabilities;
  • valuation of all assets that are contended to be marital or for which it is  contended that the marital estate has an interest;
  • amounts of all obligations that are contended to be marital obligations or for which it is contended that the marital estate has liability; and
  • expenses and earnings and accumulations of each party that have been set forth in the income and expense declaration.

Along with this final declaration of disclosure, each party must serve on the other party an updated income and expense declaration unless a current income and expense declaration is on file.

 



  • Phone: 406-862-3920

  • Alex M. Neill, Esq.

  • Alex M. Neill is a family law attorney with Johnson-Gilchrist Law Firm, P.C. in Whitefish, Montana. She practices family law in the state of Montana, representing clients in divorce, child custody, child support modifications, adoptions, orders of protection, guardianships, and wills and trusts.

    Call (406) 862-3920 to schedule an appointment.

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    The information on this blog is published for general educational and news reporting purposes only and should not be construed as, and is not intended to be, legal advice. This blog should not be used as a substitute for personalized legal advice from an appropriate licensed attorney in your jurisdiction. No attorney-client relationship with Alex Neill or Johnson-Gilchrist Law Firm is formed by your use of this blog.