In a Montana divorce, each spouse is ordinarily responsible for paying their own lawyer. The exception is MCA § 40-4-110, which lets the court order one spouse to pay a reasonable amount toward the other's attorney fees, professional fees, and costs after considering the financial resources of both. This page explains what that statute says and what it does not. It is part of our Montana Divorce Guide.

What MCA § 40-4-110 Says

The statute is two sentences and a purpose clause. Subsection (1) provides that the court "from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding" under the marriage and dissolution chapters, "and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment."

It adds that the court "may order that the amount be paid directly to the professional, who may enforce the order in the professional's name."

Subsection (2) states why the section exists: "to ensure that both parties have timely and equitable access to marital financial resources for costs incurred before, during, and after a proceeding."

The Financial Resources Test

The only consideration the statute names is "the financial resources of both parties." That makes a fee request a financial question, much like maintenance. The court compares what each spouse has available: income, savings, access to accounts, and the property each controls while the case is pending.

The purpose clause describes a particular situation. One spouse earns the income or controls the accounts, and the other cannot hire a lawyer or an appraiser without access to the same marital funds. Section 40-4-110 is the tool for evening that out so both people can take part in the case.

Several things are not in the test:

  • Fault. The statute does not mention misconduct or who ended the marriage.
  • Who filed. The order can run in favor of the spouse "maintaining or defending" the proceeding.
  • Who prevails. Nothing in § 40-4-110 conditions fees on the outcome.

What Can Be Covered, and When

The statute is broader than the phrase "attorney fees" suggests.

  • Costs of the proceeding. The cost of "maintaining or defending" the case.
  • Professional fees. "Legal and professional services," which by its terms is not limited to lawyers. Divorce cases can involve appraisers, accountants, and other professionals.
  • Before and after the case. Fees and costs "incurred prior to the commencement of the proceeding or after entry of judgment."

The words "from time to time" mean a request is not limited to the end of the case. A spouse can ask early, which fits the stated purpose of timely access. The request is typically made by motion with a showing of each spouse's finances. A request for interim fees can be made alongside a request for temporary maintenance.

"May" and "Reasonable": The Limits

Two words keep expectations in check. The court "may" order fees, so the decision is discretionary. And the amount must be "reasonable," which the court judges for itself. An order might cover part of what a spouse has spent, not all of it.

When both spouses have similar resources, or when there is little money on either side, a fee award is harder to justify under the statute's own test. Fees paid by either spouse also come out of the same marital pot that will be divided, so what the case costs affects both people regardless of who writes the check. That is one of the practical reasons spouses choose to settle. See what a divorce costs in Montana.

Paying a Lawyer While the Restraining Order Is in Place

When a petition is filed, an automatic economic restraining orderrestrains both spouses from transferring or disposing of marital property without the other's written consent or a court order. The order itself contains an exception "for the purpose of paying a reasonable amount for professional fees and costs relating to a proceeding" under the family law chapters (MCA § 40-4-126).

So a spouse may use marital funds to pay a reasonable amount for legal help. The exception does not excuse the disclosure duties that apply to both spouses, and what was spent is accounted for when property is divided.

The same order has its own fee provision. If a spouse gives notice of a proposed extraordinary expenditure and the other objects, the court "may award reasonable attorney fees if a party makes an unreasonable request for or an unreasonable objection to the proposed action."

Fees in Agreements and After the Decree

Spouses who settle can decide for themselves how fees are handled and put that term in their agreement. See the marital settlement agreement guide.

Because § 40-4-110 reaches costs incurred "after entry of judgment," it can also apply when a former spouse has to return to court, for example to enforce or modify the decree. See enforcing a divorce decree.

What This Page Does Not Cover

This page is about when a court can shift fees between spouses. It is not about what lawyers charge or how billing works. For that, see how divorce lawyers charge and the related question, can my spouse pay my attorney fees.

Whether a fee request makes sense in your case depends on both spouses' finances, which is something to go over with a lawyer early.

This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.