How Do I Protect Myself Financially Now That I Am Separated From My Wife?
Full Question:
Answer:
A divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint for divorce (or dissolution in some states) by one party.There are two types of divorce-- fault and no-fault. A fault divorce is a judicial termination of a marriage based on marital misconduct or other statutory cause requiring proof in a court of law by the divorcing party that the divorcee had done one of several enumerated things as sufficient grounds for the divorce. All states now have adopted some form of no-fault divorce; although some such as New York, restrict the availability of no-fault divorce and retain fault divorce generally. A no-fault divorce is one in which neither party is required to prove fault, and one party must allege and testify only that either irretrievable breakdown of the marriage or irreconcilable differences between the parties makes termination of the marriage appropriate. Many states continue to offer a separation agreement or decree, under which the right to cohabitation is terminated but the marriage is not dissolved and the marital status of the parties is unaltered.
State law governs divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a certain period of time, which varies by state. The most common issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the state in which he/she is and has been a resident for a period of time. In most states, the legal process of the divorce procedures take some time, to allow for a chance of reconciliation. The divorce decree is a court order that states the rights and responsibilities of the divorced parties, including the basic information regarding the divorce, case number, parties, date of divorce, and terms the parties have agreed upon.
Montana is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. In the divorce decree, the debts and assets of the spouses will be assigned between the parties. The court may also be requested to issue a restraining order, preventing a spouse from depleting the marital assets before the divorce is final.
Please see the following information:
http://www.womansdivorce.com/prepare-for-divorce.html
http://love.ivillage.com/lnsproblems/lnsdivorce/0,,757f,00.html
Please see the following MT statutes:
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, as provided in 25-2-118, 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 preceding the
filing of the action;
(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 for a period of more
than 180 days preceding the commencement of this proceeding; or
(ii) that there is serious marital discord that 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 parenting, 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.
40-4-202. Division of property.
(1) In a proceeding for dissolution of a marriage, legal separation, or
division of property following a decree of dissolution of marriage or legal
separation by a court which lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to divide the property, the court, without
regard to marital misconduct, shall, and in a proceeding for legal
separation may, finally equitably apportion between the parties the
property and assets belonging to either or both, however and whenever
acquired and whether the title thereto is in the name of the husband or
wife or both. In making apportionment, the court shall consider the
duration of the marriage and prior marriage of either party; the age,
health, station, occupation, amount and sources of income, vocational
skills, employability, estate, liabilities, and needs of each of the
parties; custodial provisions; whether the apportionment is in lieu of or
in addition to maintenance; and the opportunity of each for future
acquisition of capital assets and income. The court shall also consider the
contribution or dissipation of value of the respective estates and the
contribution of a spouse as a homemaker or to the family unit. In dividing
property acquired prior to the marriage; property acquired by gift,
bequest, devise, or descent; property acquired in exchange for property
acquired before the marriage or in exchange for property acquired by gift,
bequest, devise, or descent; the increased value of property acquired prior
to marriage; and property acquired by a spouse after a decree of legal
separation, the court shall consider those contributions of the other
spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the
maintenance of this property; and
(c) whether or not the property division serves as an alternative to
maintenance arrangements.
(2) In a proceeding, the court may protect and promote the best interests
of the children by setting aside a portion of the jointly and separately
held estates of the parties in a separate fund or trust for the support,
maintenance, education, and general welfare of any minor, dependent, or
incompetent children of the parties.
(3) Each spouse is considered to have a common ownership in marital
property that vests immediately preceding the entry of the decree of
dissolution or declaration of invalidity. The extent of the vested interest
must be determined and made final by the court pursuant to this section.
(4) The division and apportionment of marital property caused by or
incident to a decree of dissolution, a decree of legal separation, or a
declaration of invalidity is not a sale, exchange, transfer, or disposition
of or dealing in property but is a division of the common ownership of the
parties for purposes of:
(a) the property laws of this state;
(b) the income tax laws of this state; and
(c) the federal income tax laws.
(5) Premarital agreements must be enforced as provided in Title 40,
chapter 2, part 6.
40-4-256. Liquidation — transfer of marital estate assets to avoid
encumbrance, devaluation, or market or investment risk — authority of
court.
(1) Except as provided in subsection (2), at any time during the
proceedings, the court may, upon application of a party and for good cause
and after consideration of the relative nature, scope, and extent of the
marital estate, order the liquidation or transfer of title of marital
estate assets to avoid unreasonable encumbrance, devaluation, or market or
investment risk.
(2) The court may not grant an application under subsection (1) unless
the appropriate declaration of disclosure has been served on the opposing
party by the moving party as provided in 40-4-252 through 40-4-254.