Montana's automatic economic restraining order is a court order, set out word for word in MCA § 40-4-126, that the clerk of district court attaches to the summons in every divorce (dissolution of marriage), legal separation, and invalidity case. It restrains both spouses from moving, hiding, or encumbering marital property, changing beneficiaries, canceling insurance, and taking on unreasonable debt while the case is pending. It leaves room for ordinary living expenses, running an existing business, and reasonable professional fees. This page is part of the filing section of our Montana Divorce Guide.
When It Starts and Who It Binds
No one requests this order and no judge holds a hearing first. The statute directs the clerk to issue it with the summons on the filing of the petition. By its own terms it "is binding on the petitioner on filing of the petition" and "binding on the respondent on service of the petition."
The order also looks backward in one respect. In issuing temporary orders or a final decree, the court "may consider any action taken by the petitioner within a reasonable time prior to filing of the petition that would otherwise have constituted a violation of this order" (order paragraph (9)). Emptying an account the week before filing is not a way around it.
What Both Spouses Are Barred From Doing
| Subject | What is restrained | Order |
|---|---|---|
| Marital property | Transferring, encumbering, concealing, or in any way disposing of any marital property without the other spouse's written consent or a court order | ¶ (1) |
| Credit cards | Canceling jointly held credit cards or terminating the other spouse's signatory authority on a card | ¶ (3)(a) |
| New debt | Incurring unreasonable debt, including further borrowing against a credit line secured by the family residence or unreasonably using credit cards or cash advances | ¶ (3)(b) |
| Retirement accounts | Withdrawing or borrowing from any retirement, pension, deferred compensation, profit-sharing, or other employee benefit plan, or an individual retirement account | ¶ (3)(c) |
| Life insurance cash value | Withdrawing or borrowing against the cash surrender value of life insurance on either spouse or the children | ¶ (3)(d) |
| Beneficiaries | Changing the beneficiary designation on life insurance on either spouse or the children, or the beneficiary on any other account or asset | ¶ (3)(e) |
| Insurance coverage | Canceling, altering, or allowing to lapse existing property, life, automobile, or health insurance covering the spouses or children | ¶ (3)(f) |
| Checks and refunds | Negotiating any check, tax refund, insurance payment, or dividend payable jointly or to the other spouse without that spouse's signature or prior written consent | ¶ (3)(g) |
| Mail and email | Opening, diverting, or withholding mail, email, or other electronic communications addressed to the other spouse | ¶ (3)(h) |
| Destroying property or records | Intentionally or knowingly damaging or destroying property of either spouse without objectively reasonable justification, specifically including electronically stored materials, electronic communications, and financial records | ¶ (3)(i) |
The paragraph numbers are those of the order quoted in MCA § 40-4-126(1). The restraints on debt, retirement accounts, and life insurance cash value are each subject to the exceptions and the notice procedure described below. On mail, a spouse may still open items addressed to both spouses and may submit a change of their own individual address.
What You May Still Do
The order is not meant to freeze ordinary life. Paragraph (1) excepts three kinds of spending from the restraint on marital property:
- Living expenses. Expenses necessary to reasonably maintain the marital standard of living or for the necessities of life, "such as food, clothing, shelter, necessary health care expenses, transportation to and from work, and child care," taking into consideration the additional expenses of a second household and current available income.
- Business as usual. Transactions "in the customary and usual course of operating an existing business."
- Professional fees. "A reasonable amount for professional fees and costs" relating to the family law proceeding.
Paragraph (4) adds that, unless the court orders otherwise, a spouse is not restrained from creating, modifying, or revoking a will, revoking or changing a power of attorney, or creating an unfunded revocable or irrevocable trust. Those are estate planning documents, and an estate planning attorney is the right person to prepare them. A&M Law does not practice estate planning. Our pages on life insurance and beneficiaries in divorce and updating wills and beneficiaries after divorce explain the divorce side.
Extraordinary Expenses: The 14-Day Notice
For anything outside the ordinary, the order supplies a procedure in paragraph (2). A spouse who proposes an extraordinary expenditure, the revocation of a nonprobate transfer, or the elimination of a right of survivorship must file a notice with the court at least 14 days before acting. The notice must state:
- the proposed action and when it is intended to occur;
- how it may affect the marital estate; and
- why it is necessary at that time.
The notice must also contain a specific statement, quoted in the statute, telling the other spouse that the action will be permitted unless an objection is filed within 14 days. If the other spouse objects in time, the action is prohibited until the court rules. The burden of justifying the action is on the spouse who proposes it, and the court may award reasonable attorney fees against a spouse who makes an unreasonable request or an unreasonable objection.
A "nonprobate transfer" is defined as an instrument other than a will that transfers property on death, including a revocable trust, a pay-on-death account, a transfer on death registration, and a revocable transfer on death deed.
Changing the Order
The order is a default setting, not a fixed one. The spouses may, by joint agreement, waive some or all of its provisions in writing (order paragraph (6)). Either spouse may ask the court to expand, limit, modify, or revoke it (MCA § 40-4-126(3)), and a motion for a temporary injunction can ask the court to restrict, enhance, or otherwise modify its terms (MCA § 40-4-121(2)(a)). See temporary orders during divorce.
The order also does not affect the rights of a purchaser, lender, or tenant who pays value and has no actual knowledge of it (order paragraph (5)). That protects third parties. It does not excuse the spouse who made the transfer.
If a Spouse Violates the Order
If a party fails to comply, "the other party may move the court to grant an appropriate order, including, if appropriate, sanctions and all remedies for contempt of court" (MCA § 40-4-126(4)). For conduct shortly before filing, the order itself says the court may consider it in temporary orders or the final decree (order paragraph (9)). Our pages on hidden assets and dissipation and contempt in family court go further.
If you are unsure whether something is allowed, the safe sequence is to ask first: get the other spouse's written consent, use the notice procedure, or ask the court. Our page on protecting your finances lawfully covers steps that are consistent with the order.
The Order and Financial Disclosure
The order itself reminds both spouses of the next duty: preliminary financial disclosures must be served within 60 days of service of the petition (order paragraph (7); MCA § 40-4-252). The two rules work together. One keeps the marital estate intact while the case is pending, and the other makes sure each spouse knows what is in it. See financial disclosure in a Montana divorce.
This order deals with money and property only. It is not an order of protection and does not address personal safety. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.