Montana recognizes common law marriages under MCA § 40-1-403, and ending one requires the same formal divorce process as a ceremonial marriage. You cannot simply "break up" and move out — a Montana District Court must legally dissolve the union. The filing fee is $250, and at least one spouse must have resided in Montana for 90 days before filing. If children are involved, they must have lived in Montana for six consecutive months before the court can address custody matters. Montana courts apply the three-part test established in the landmark case In the Matter of the Estate of Ober (2003) to determine whether a valid common law marriage exists: competency to marry, mutual consent and agreement, and cohabitation with public repute.
Key Facts: Common Law Divorce in Montana
| Factor | Montana Requirement |
|---|---|
| Filing Fee | $250 ($200 filing + $50 judgment fee) |
| Waiting Period | 20-21 days after service |
| Residency Requirement | 90 days for spouse; 6 months for children |
| Grounds for Divorce | No-fault only (irretrievable breakdown) |
| Property Division | Equitable distribution |
| Common Law Marriage Statute | MCA § 40-1-403 |
| Declaration of Marriage Fee | $53 |
Does Montana Recognize Common Law Marriage?
Montana is one of only nine states that continues to recognize common law marriages. Under MCA § 40-1-403, common law marriages are explicitly not invalidated by Montana's marriage statutes. The Montana Supreme Court has developed case law establishing precise requirements for what constitutes a valid common law marriage, with the leading case being In the Matter of the Estate of Ober, 62 P.3d 1114, 314 Mont. 20, 2003 MT 7. Unlike some states that require common law marriages to have been formed before a certain date, Montana continues to recognize newly formed common law marriages with no cutoff date. This recognition carries significant legal weight because once a common law marriage is established, it holds the same legal status as a ceremonial marriage, including all rights and obligations related to property division, spousal support, and inheritance.
The Three-Part Test for Proving Common Law Marriage in Montana
Montana courts require proof of three distinct elements to establish a valid common law marriage before any divorce proceeding can move forward. The spouse claiming a common law marriage bears the full burden of proof, and courts examine the totality of circumstances rather than any single piece of evidence. All three elements must be present simultaneously — missing even one element means no valid marriage exists under Montana law.
Element 1: Competency to Marry
Both parties must meet Montana's standard marriage competency requirements under MCA § 40-1-202, MCA § 40-1-401, and MCA § 40-1-402. Specifically, both individuals must be of legal age (18 years or older, or 16-17 with parental consent), neither party can already be married to someone else (bigamy invalidates the union), the parties cannot be related within prohibited degrees of consanguinity, and both must have had mental capacity at the time of forming the marriage. Neither party can have been under the influence of an incapacitating substance when the agreement was made.
Element 2: Mutual Consent and Agreement
Both parties must form a present intent to be married and express that intent to one another. The Montana Supreme Court has clarified that this agreement need not follow any particular form — it may be private between the two parties or witnessed by many people. The critical factor is that both individuals genuinely agreed to enter into a marital relationship rather than merely a dating or cohabitation arrangement. Words such as "we are married" or "I take you as my spouse" can establish this element, though the agreement may also be inferred from conduct and circumstances.
Element 3: Cohabitation and Public Repute
The third element receives the most scrutiny from Montana courts. Living together alone is insufficient — there is no minimum cohabitation period required. The dispositive question is whether the couple presented themselves as married to the community around them, including family, friends, coworkers, and neighbors. A common law marriage cannot exist if it was kept secret from the community. Evidence that supports public repute includes using the same last name, referring to each other as spouses in conversation, listing each other as spouse on insurance policies or loan applications, filing joint tax returns, wearing wedding rings, and testimony from friends and family who understood the couple to be married.
How to File for Divorce from a Common Law Marriage in Montana
The divorce process for a common law marriage follows the identical procedure as dissolving a ceremonial marriage under MCA § 40-4-104. Montana District Courts do not distinguish between marriage types when processing dissolution petitions. You must first establish that a valid common law marriage exists before the court can grant a divorce and divide property. Without proof of marriage, the court lacks jurisdiction to treat you as divorcing spouses rather than unmarried cohabitants.
Step 1: Meet Residency Requirements
Under MCA § 40-4-104(1)(a), at least one spouse must be domiciled in Montana for a minimum of 90 days immediately before filing. This requirement is jurisdictional, meaning Montana courts cannot grant your divorce if neither spouse meets this threshold. Active-duty military personnel stationed in Montana for at least 90 days also satisfy this requirement even if they maintain legal domicile elsewhere. For child custody matters, Montana imposes an additional six-month residency requirement for children under MCA § 40-4-211 and the Uniform Child Custody Jurisdiction and Enforcement Act codified at MCA § 40-7-201.
Step 2: File the Petition and Pay Filing Fees
File your Petition for Dissolution of Marriage with the District Court in the county where either spouse resides. The filing fee is $250, comprised of a $200 filing fee and a $50 judgment fee as established under MCA § 25-1-201. This fee must be paid when you submit your petition. If your spouse files an answer, an additional $70 filing fee applies, bringing combined initial court costs to approximately $320. Fee waivers are available for households at or below 125% of federal poverty guidelines — submit a Statement of Inability to Pay Court Costs and Fees with your initial documents.
Step 3: Prove the Common Law Marriage Exists
You must present evidence satisfying all three elements of Montana's common law marriage test. Documentary evidence carries significant weight, including joint tax returns, joint bank account statements, shared mortgage or lease documents, insurance policies naming each other as spouse, and any declarations filed with the court. Witness testimony from family members, friends, and community members who understood the couple to be married also helps establish public repute. If your spouse disputes the existence of the marriage, be prepared for a contested evidentiary hearing.
Step 4: Serve Your Spouse and Wait
After filing, you must serve your spouse with the petition and summons. Montana requires a mandatory 20-21 day waiting period after service under MCA § 40-4-105(3) before any final decree can be entered. Your spouse has 20 days to file a response. Missing this deadline can result in a default judgment granting the petitioner's requested terms without the respondent's input.
Step 5: Resolve Issues and Finalize
If both parties agree on all terms (property division, maintenance, child custody and support), the divorce can be finalized in as few as 30 to 90 days total. Contested divorces take significantly longer — typically 6 to 12 months or more depending on the complexity of disputes and court scheduling.
The Declaration of Marriage Without Solemnization Option
Couples in a common law marriage may file a Declaration of Marriage Without Solemnization under MCA § 40-1-311 to create an official record of their marriage. The filing fee for this declaration is $53, payable by cash or credit/debit card (checks typically not accepted). The declaration must contain the names, ages, and residences of both parties, the fact of marriage, the names and addresses of both parties' parents, and a statement that both parties are legally competent to marry. Both parties must appear in person before the Clerk of the District Court with valid identification, and two witnesses must sign the declaration.
Filing this declaration does not make a prior common law marriage more or less valid — it simply creates official documentation that may simplify property transactions, insurance claims, and other legal matters during the marriage. If you are contemplating divorce, having a declaration on file can streamline proving the marriage existed, potentially avoiding contested hearings on that threshold issue.
Property Division in Montana Common Law Divorce
Montana is an equitable distribution state. Under MCA § 40-4-202, the court must equitably apportion all property belonging to either or both spouses, regardless of when the property was acquired, regardless of how title is held, and regardless of whether the property was acquired before the marriage, during the marriage, or titled solely in one spouse's name. The court's goal is a fair division — not necessarily an equal 50/50 split.
Factors Courts Consider
Montana judges weigh multiple statutory factors when dividing property: the duration of the marriage, each spouse's age, health, station, occupation, amount and sources of income, vocational skills, and employability, the estate, liabilities, and needs of each party, custodial provisions for children, whether the property division is in lieu of or in addition to maintenance, and the opportunity of each spouse for future acquisition of capital assets and income. The court also considers each spouse's contribution to the household, explicitly including homemaking and contributions to the family unit as valuable contributions under the statute.
Treatment of Premarital and Separate Property
Property acquired before the common law marriage began, property received by gift, bequest, devise, or descent, and property acquired in exchange for such premarital or inherited property remains subject to division but receives different treatment. For these categories, the court specifically weighs the non-property-owning spouse's contributions to the marriage, including homemaking, the extent to which that spouse's contributions facilitated maintaining the property, and whether the property division serves as an alternative to maintenance arrangements.
Marital Misconduct Prohibited from Consideration
Under MCA § 40-4-202, Montana courts cannot consider marital misconduct such as infidelity when dividing property. However, economic misconduct — such as gambling away marital funds or deliberately wasting assets — can affect the division because it directly impacts the marital estate available for distribution.
Spousal Maintenance in Montana Common Law Divorce
Spousal maintenance (alimony) in Montana common law divorces follows the same rules as ceremonial marriage divorces under MCA § 40-4-203. Maintenance is not automatic. The requesting spouse must prove two threshold requirements: that they lack sufficient property, including marital property apportioned to them, to provide for their reasonable needs, and that they are unable to support themselves through appropriate employment or are the custodian of a child whose condition makes seeking outside employment inappropriate.
Judicial Discretion, Not Formulas
Unlike states with guideline formulas such as New York or Colorado, Montana awards maintenance entirely on a case-by-case basis using judicial discretion. Judges consider the financial resources of the requesting spouse, time needed to acquire education or job training, each spouse's comparative earning capacity, the standard of living established during the marriage, the duration of the marriage, and the age and physical or mental condition of the requesting spouse. The court also evaluates the paying spouse's ability to meet both their own needs and the supported spouse's needs.
Types and Duration of Maintenance
Montana courts award three types of maintenance. Temporary maintenance covers the dissolution period and ends at finalization. Rehabilitative maintenance — the most common type — supports a spouse while they gain job skills or education, typically lasting 3 to 5 years for shorter marriages. Permanent maintenance is reserved for spouses who cannot become self-supporting due to age, disability, or extended absence from the workforce, often in marriages lasting 20 or more years. Montana has no statutory time limits for maintenance duration.
Child Custody and Support in Montana Common Law Divorce
Children born to a common law marriage are legitimate children of the marriage under MCA § 40-6-201. Custody and support determinations follow the same legal framework as in any other divorce. Montana's child custody jurisdiction operates under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) codified at MCA § 40-7-101 et seq.
The Six-Month Child Residency Requirement
For the Montana District Court to exercise jurisdiction over child custody matters, the children must have lived in Montana with a parent or person acting as a parent for at least six consecutive months immediately before filing. For children under six months of age, Montana must be the state where the child has lived from birth. This "home state" requirement under MCA § 40-7-103 is separate from and additional to the 90-day adult residency requirement. If your children have not resided in Montana for six months, the court can grant your divorce but may lack jurisdiction to enter custody orders.
Best Interests of the Child Standard
Montana courts determine custody based on the best interests of the child, considering factors including the child's wishes (considering age and maturity), each parent's wishes, the child's relationship with each parent and siblings, the child's adjustment to home, school, and community, and the mental and physical health of all individuals involved. Montana favors parenting plans that maximize both parents' involvement in the child's life unless domestic violence or other safety concerns exist.
Proving Common Law Marriage When Your Spouse Denies It
Disputes over whether a valid common law marriage exists often arise when one spouse denies the relationship to avoid divorce-related property division and support obligations. Montana courts examine the totality of circumstances, weighing documentary and testimonial evidence against denials. The party claiming the marriage bears the burden of proof.
Evidence That Helps Establish the Marriage
The strongest evidence includes joint federal and state tax returns filed as "married filing jointly," joint bank accounts, shared mortgage or property deeds, insurance policies listing each other as spouse, loan applications identifying the other party as spouse, testimony from family members who understood the couple to be married, testimony from friends, neighbors, and coworkers about how the couple presented themselves, photographs showing wedding rings or other indicia of marriage, and correspondence or communications referring to each other as husband and wife.
Evidence That Undermines the Claim
Factors that weaken a common law marriage claim include maintaining separate finances throughout the relationship, referring to each other as boyfriend/girlfriend rather than spouses, not using the same last name, listing "single" on official documents, keeping the relationship secret from community members, and testimony from people close to the couple who did not understand them to be married.
Timeline: How Long Does a Montana Common Law Divorce Take?
| Divorce Type | Typical Timeline |
|---|---|
| Uncontested (no children, agreement on all issues) | 30-90 days |
| Uncontested (with children) | 60-120 days |
| Contested (disputed common law marriage existence) | 6-18 months |
| Contested (disputed property/custody) | 6-12 months |
| Summary Dissolution (strict criteria met) | 20-30 days |
The mandatory 20-21 day waiting period after service applies to all Montana divorces without exception. Actual timelines vary based on court caseloads, complexity of issues, and whether parties can reach agreement.
Costs of Montana Common Law Divorce
| Cost Category | Amount |
|---|---|
| Filing Fee (Petitioner) | $250 |
| Response Fee (Respondent) | $70 |
| Declaration of Marriage Filing | $53 |
| Service of Process (Sheriff) | $20-50 |
| Service of Process (Private Server) | $50-100 |
| Certified Copies | $3-5 each |
| Attorney Fees (Uncontested) | $1,500-3,500 |
| Attorney Fees (Contested) | $5,000-25,000+ |
| Mediation | $2,000-5,000 |
As of May 2024, verify all court fees with your local Clerk of District Court as these can change annually. Fee waivers are available for qualifying low-income individuals.
Frequently Asked Questions
How do I prove a common law marriage exists in Montana?
You must prove three elements: both parties were competent to marry under MCA § 40-1-202, both mutually agreed to be married, and both lived together and held themselves out publicly as spouses. Joint tax returns, shared property titles, insurance beneficiary designations, and witness testimony are the strongest evidence. The party claiming the marriage bears the full burden of proof.
Can I just move out to end my Montana common law marriage?
No. A valid common law marriage in Montana requires a formal legal divorce (dissolution of marriage) to terminate. Simply moving out and stopping cohabitation does not end the marriage. Without a court decree, you remain legally married with ongoing property rights, inheritance claims, and potentially support obligations.
How long do you have to live together to have a common law marriage in Montana?
Montana law sets no minimum cohabitation period. The critical question is not how long you lived together but whether you held yourselves out publicly as married. Two people could cohabit for decades without forming a common law marriage if they never represented themselves as spouses to the community.
What is the filing fee for divorce in Montana?
The filing fee is $250, comprised of a $200 filing fee and $50 judgment fee under MCA § 25-1-201. If your spouse files a response, they pay an additional $70. Fee waivers are available for households at or below 125% of federal poverty guidelines ($23,531 for a single person in 2026).
How long does it take to get a common law divorce in Montana?
Uncontested common law divorces take 30 to 90 days minimum, including the mandatory 20-21 day waiting period after service. If the existence of the common law marriage is disputed, expect 6 to 18 months for contested proceedings including evidentiary hearings.
Is Montana a 50/50 divorce state?
No. Montana uses equitable distribution under MCA § 40-4-202, meaning the court divides property fairly — not necessarily equally. Judges consider factors including marriage duration, each spouse's contributions (including homemaking), earning capacity, and future needs. The division could be 50/50, 60/40, or any other proportion the court deems equitable.
Can I get alimony from a common law marriage in Montana?
Yes. Spousal maintenance is available in common law divorces under the same standards as ceremonial marriage divorces. You must prove you lack sufficient property for your reasonable needs and cannot support yourself through appropriate employment. Montana uses no formula — awards are based on judicial discretion considering factors in MCA § 40-4-203.
Do children born during a common law marriage have the same rights?
Yes. Under MCA § 40-6-201, children of a common law marriage are legitimate children of the marriage with identical rights to custody, support, and inheritance as children born to ceremonial marriages. Child support and custody determinations follow the same legal framework.
What happens if my spouse denies we had a common law marriage?
You must prove the marriage existed through documentary evidence and witness testimony. The court examines the totality of circumstances — joint tax returns, shared property, how you presented yourselves to family and community, and other objective indicators. If you cannot meet your burden of proof, the court treats you as unmarried cohabitants without divorce protections.
Should I file a Declaration of Marriage before divorcing?
Filing a Declaration of Marriage Without Solemnization ($53 fee) under MCA § 40-1-311 creates official documentation that can simplify proving your marriage exists. If your spouse might dispute the marriage, having an official declaration on file strengthens your position. However, the declaration is not required to obtain a divorce if you can otherwise prove the common law marriage elements.
Legal Disclaimer
This guide provides general information about Montana common law marriage divorce laws current as of 2026. It is not legal advice. Filing fees, court procedures, and laws can change. Verify all information with your local Clerk of District Court and consult a licensed Montana family law attorney for advice specific to your situation.
Author
Antonio G. Jimenez, Esq. Florida Bar No. 21022 | Covering Montana divorce law