Yes, family disputes can be arbitrated in Montana, including parenting and child support, but only by written agreement and with a court reviewing the result. Arbitration means hiring a private decision-maker in place of a judge for specific issues. The governing law is the family law arbitration statute at MCA Title 40, chapter 16, enacted in 2021, with Montana's Uniform Arbitration Act (Title 27, chapter 5) filling the gaps. This page is part of our Montana Divorce Guide.
How Arbitration Differs From Mediation and Trial
A mediator helps you reach your own agreement and cannot impose one. An arbitrator hears evidence and decides. In that respect arbitration resembles a trial, but the hearing is private, the parties choose the decision-maker, and the arbitrator sets the procedure. The arbitrator must still apply Montana law in determining the merits (MCA § 40-16-104(2)).
If what you want is help reaching your own terms, see mediation in a Montana divorce. If you want to understand what arbitration replaces, see going to trial.
What Can and Cannot Be Arbitrated
The statute governs arbitration of a "family law dispute," defined as a contested issue arising under Title 40 (MCA §§ 40-16-102(6), 40-16-103(1)). It then lists what an arbitrator may not do.
| Issue | Can an arbitrator decide it? | Source |
|---|---|---|
| Division of property and debts | Yes | A contested issue arising under Title 40 (§ 40-16-102(6)) |
| Maintenance | Yes | Same |
| Parenting plan and child support | Yes, with added safeguards | Recorded hearing, stated reasons, and a best-interest finding by the court (§§ 40-16-114(2), 40-16-115(3), 40-16-116(3)) |
| Granting the dissolution, a legal separation, or a declaration of invalidity | No | § 40-16-103(2)(a) |
| Terminating parental rights | No | § 40-16-103(2)(b) |
| Adoption or guardianship | No | § 40-16-103(2)(c) |
| An order of protection | No | § 40-16-103(2)(d) |
So even a fully arbitrated divorce ends in district court. The arbitrator decides the disputed terms, and the court confirms the award and enters the decree that ends the marriage.
The Arbitration Agreement
Nobody can be sent to arbitration without having agreed to it. An arbitration agreement must (MCA § 40-16-105(1)):
- be in a record signed by the parties;
- identify the arbitrator, an arbitration organization, or a method of selecting an arbitrator;
- identify the family law dispute the parties intend to arbitrate; and
- specify how notice to arbitrate is to be given.
For property and maintenance, an agreement to arbitrate is enforceable like any other contract, whether the dispute arose before or after the agreement was made (MCA § 40-16-105(2)). Children are treated differently. An agreement to arbitrate a child-related dispute that arises after the agreement is made is unenforceable unless the parties affirm it in a record after the dispute arises, or it was entered during a family law proceeding and the court approved or incorporated it in an order (MCA § 40-16-105(3)).
That rule matters for anyone drafting a parenting plan. A plan may include a method for resolving future disputes, and our guide to dispute resolution clauses explains how an arbitration clause fits. If a party objects that an agreement is unenforceable, the court decides that question (MCA § 40-16-105(4)).
Who the Arbitrator Is and What They Can Do
Unless the parties waive the requirement in a record, an arbitrator must be an attorney in good standing admitted to practice in Montana or a retired Montana district court judge, and must be trained in identifying domestic violence (MCA § 40-16-108(1)). Before agreeing to serve, the arbitrator must disclose any known fact a reasonable person would believe is likely to affect impartiality, including a relationship with a party, a party's attorney, or a witness (MCA § 40-16-109(1)).
Each party has the right to be heard, to present evidence, and to cross-examine witnesses (MCA § 40-16-113(2)). A party may be represented by an attorney and may be accompanied by a support person who will not be a witness or act as an advocate (MCA § 40-16-110(1)). Unless the parties agree otherwise, the arbitrator's powers include requiring the financial disclosures a court case would require, compelling discovery, deciding what evidence to admit, interviewing a child who is the subject of the dispute, appointing a guardian ad litem at the parties' expense, and allocating arbitration fees and attorney's fees between the parties (MCA § 40-16-113(3)).
Extra Safeguards for Parenting and Child Support
Montana courts keep the last word on children. Three provisions make that concrete:
- The arbitrator must request a verbatim recording of any part of a hearing concerning a child-related dispute (MCA § 40-16-114(2)).
- The award must state its reasons as Montana law requires of a court order in a child-related dispute (MCA § 40-16-115(3)).
- The court confirms the award only if it finds, after a review of the record if necessary, that the award on its face complies with the law governing child-related disputes and is in the best interests of the child (MCA § 40-16-116(3)).
A court must vacate a child-related award that does not comply with Title 40, or where the record or statement of reasons is inadequate for review, though it may amend the award instead if that is in the child's best interests (MCA § 40-16-119(2) and (3)). And child support is still governed by the guidelines, because the arbitrator applies Montana law.
Safety Protections
If a party is subject to a protection order, or the arbitrator determines there is a reasonable basis to believe a party's safety or ability to participate effectively is at risk, the arbitrator must stay the arbitration and refer the parties to court. It may not resume unless the party at risk affirms the agreement in a record and the court determines that the affirmation is informed and voluntary, that arbitration is not inconsistent with the protection order, and that reasonable procedures are in place to protect the party (MCA § 40-16-112(2)).
If the arbitrator has a reasonable basis to believe a child who is the subject of the dispute is abused or neglected, the arbitrator must terminate the arbitration of that dispute and report to the Department of Public Health and Human Services (MCA § 40-16-112(3)). If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233. See when agreement is not safe or possible.
Confirming, Challenging, and Enforcing an Award
An award is made in a signed, dated record and is "not enforceable as a judgment until confirmed" by the court (MCA § 40-16-115(4)). Once confirmed, the court enforces it in the same manner and to the same extent as any other order or judgment (MCA § 40-16-123(1)).
A party who believes the process was unfair may move to vacate an unconfirmed award. The grounds include an award procured by corruption, fraud, or other undue means, evident partiality or misconduct by the arbitrator, a refusal to consider material evidence, and an arbitrator exceeding their powers. The motion must be filed not later than 90 days after the arbitrator gives notice of the award (MCA § 40-16-119(1) and (5)). An order confirming or denying confirmation of an award can be appealed like an order in a civil action (MCA § 40-16-124).
The grounds for vacating a property or maintenance award are narrow. Under the general arbitration act, the fact that a court would not have granted the same relief is not a ground for vacating an award (MCA § 27-5-312(2)). Before you sign an arbitration agreement, understand that you are trading the broader review that follows a trial for privacy and control over scheduling. A lawyer can help you weigh that trade for your situation.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.