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Post-Obergefell Separation

Before the United States Supreme Court decided the case Obergefell v. Hodges and determined that same sex couples had the fundamental right to marry, same sex couples could not obtain a marriage license in the state of Montana. Although the Montana law prohibiting same sex marriage is still on the books, pursuant to Obergefell, such law is now unconstitutional. Therefore, Montana can no longer prohibit same sex couples from entering into a valid marriage which must be recognized throughout the nation.

Although same sex couples are now being afforded the same right as heterosexual couples, they may not yet be afforded the same ease in resolving their disputes should they separate or divorce. This discrepancy stems from the lack of a solid legal framework to resolve disputes under certain scenarios that may arise and are specific and unique to same sex couples. For example, issues concerning parental rights may arise for same sex couples with children who wish to end their relationship. Stress and anxiety might stem from the non-biological parent’s concern that he or she does not have a legally protected interest in the children. In addition to possible parenting concerns, issues concerning property rights may also arise. Considering the application of both Montana’s marital property statute and its general property principles, a certain segment of the population may be left without a legal framework to guide them to resolution on a property dispute.

Montana’s marital property division statute provides for an equitable distribution of property between married parties. Traditionally, because same sex couples could not be married, they could not rely on Montana’s marital property distribution statute. Now that same sex couples can marry, they will be able to rely on the marital property distribution statute upon divorce.

Montana’s general property principles, under the right circumstances, may also be relied on to provide for distribution of property. These property laws are based on a party having a legal interest in the property and making contributions to the property. General property principles have been used when a non-married couple is separating and both parties already have a legal interest in a piece of property. In such a scenario, the parties’ relative contributions to the property will be considered to determine what interest in the property each party shall receive.

Same sex couples who were in a long term relationship that occurred primarily before the Obergefell decision, who did not get married after the Obergefell decision, and who are now separating, are likely find themselves without a solid legal framework to resolve a property dispute. Because Montana’s marital property division statute does not apply to this segment of the population and the circumstances might not be proper to rely on general property principles, the applicable question becomes: “If, and if so, then how, to divide property between them?”

Because these issues are new to Montana, many courts do not have much experience with them and many law practitioners are unfamiliar with the legal arguments and laws to rely on in arguing one way or another. This lack of legal framework can lead to numerous hours of research and analysis to formulate an effective strategy, which ultimately, causes increased legal fees. However, our practitioners have developed this legal framework and already have the knowledge and experience to help. If you find yourself in a similar situation and in need of help, give us a call for an initial consultation.