Montana Divorce Litigation
Litigation is something that most people don’t want to experience. In the U.S., divorce is a legal process that requires, to some extent, the parties to engage in litigation. While most divorce cases will settle during the litigation process and without a trial, getting a good resolution, whether through negotiation or by trial, is easiest with experienced attorneys by your side. Experienced attorneys know the legal process for bringing a case to court and also know that satisfactory results are reached by being organized and prepared. We know that being prepared starts be giving our clients realistic expectations and helping them understand the process they are going through.
Here are the steps in the litigation process.
Petition for Dissolution /Economic Restraining Order: When a Petition for Dissolution is filed, the Clerk of the District Court issues a summons that automatically imposes an economic restraining order on either party transferring any interests in their marital property including changing beneficiaries on life and health insurance policies. Parties may still conduct business in the ordinary course, but first they need the approval of the court, or the other party, before undertaking extraordinary expenditures, transferring property, or making other changes to their financial holdings.
Temporary Orders: Upon the filing of the Petition, either party may request orders for interim parenting issues or temporary support for the family expenses to one another. Parties may also request a temporary order of protection which governs the communication and contract between the parties.
Disclosure: In Montana, both parties have a duty to disclose all of their assets, liabilities, income and expenses. Failure to do so results in a presumption that the undisclosed asset is transferred to the other party or that the undisclosed liability is awarded to the party not disclosing it.
Discovery: Discovery is the process to obtain evidence regarding the facts of the case. Discovery is different in each case, and an experienced attorney can help tailor this process to make it as effective and efficient as possible. During discovery, each party provides information requested by the other party; typically documents such as financial records, credit card statements, income tax returns, bank statements, employments records, and life insurance policies. Some of this information might be subpoenaed, the witnesses may include, employers, doctors, counselors, neighbors, and family members. The parties also have to disclose the names of fact and expert witnesses who may testify at trial. Each party may take the deposition of the other party and witnesses.
Honest disclosure of all assets and liabilities is essential for obtaining a fair and equitable division of all of the property. Unfortunately, some parties are not forth coming and honest. We have experience dealing with issues related to fully disclosing assets and liabilities.
Settlement Conferences: Settlement can occur at any point in the litigation process. In Montana, most courts require the parties to attend a settlement conference before the court will set the case for trial. However, this process does not require the parties to negotiate face-to-face with one another. Having the assistance of an experienced attorney during a settlement conference can help you to ensure that you get the best possible negotiated agreement, and that you consider issues like the tax consequences or a property distribution or maintenance award.
Final Preparation for Trial: About a month before trial, both parties submit pre-trial documents to the court which set out how they propose that the various issues such as property division, parenting, and child support should be resolved by the court. The complexities of the issues usually determine how much time will be devoted to trial preparation. Generally more time is spent in trial preparation than in the actual trial. Trial preparation includes talking with witnesses, preparing exhibits, and drafting direct and cross examination questions as well as anticipating and preparing to meet the tactics and strategy of the opposing side.
Trial: At trial, each party presents evidence on the contested issues. Determination of the separate property of a party, division of the property and liabilities, and determine the validity and meaning of premarital and post-marital agreements are some of the most common contested issues in a divorce case. If minor children are involved, the contested issues may include the rights and duties of each parent, who the child or children will reside with, the parenting schedule, whether child support will be paid and the amount of the child support.
At trial, each party testifies under oath about facts that are relevant to the contested issues. Each party may also call witnesses to testify. Typically documents relevant to one or more of the issues are offered into evidence.
Post-trial: At the conclusion of the trial, the court will generally allow the parties to supplement their trial documents to conform to the evidence presented. The court then issues a final decree.
Appeal: If either party believes a mistake of law has been made in the Final Decree, in Montana, a party has the right to appeal the District Court’s decision directly to the Montana Supreme Court within 30 days after a Final Decree is entered by the Court.
By: P. Mars Scott