You can change divorce lawyers at any point in a Montana case. The statute allows a change "at any time before or after judgment or final determination" (MCA § 37-61-403(1)). What you cannot do is change the court's calendar by changing counsel, so timing matters. This page, part of our Montana Divorce Guide, explains the mechanics, your file, your money, and the trade-offs.
Before You Switch, Name the Problem
Dissatisfaction with a lawyer has different causes, and they call for different responses. Slow communication can sometimes be fixed by asking directly how and when you will get updates. A lawyer must keep you reasonably informed and promptly answer reasonable requests for information (Rule 1.4(a), Montana Rules of Professional Conduct). Frustration with the pace may be the court's schedule, not the lawyer. Disagreement over strategy may be a lawyer giving the candid advice that Rule 2.1 calls for.
Other problems do justify a change: you cannot get answers, you no longer trust the advice, or your goals and the lawyer's approach do not fit. The objectives of the case are yours to set (Rule 1.2(a)). Our article on working with your divorce lawyer may help you tell which kind of problem you have.
How Substitution Works
| Step | What happens | Source |
|---|---|---|
| 1. Consult a new lawyer | The consultation is confidential even though you already have counsel. | Rule 1.20 |
| 2. Substitution is filed | Client and attorney consent in a filing with the clerk, or the court orders the change after notice. | MCA § 37-61-403(1) |
| 3. The other side is notified | Written notice of the change is given to the adverse party. Until then they deal with the former attorney. | MCA § 37-61-404 |
| 4. The file is transferred | The former lawyer surrenders the papers and property you are entitled to. | Rule 1.16(d) |
| 5. Accounts are settled | Unearned advance payments are refunded. Fees already earned remain owed. | Rules 1.15 and 1.16(d) |
Montana's statute gives two routes. The attorney may be changed "on consent of both client and attorney, filed with the clerk or entered on the minutes," or "on the order of the court, on the application of either client or attorney, after notice from one to the other" (MCA § 37-61-403(1)(a) and (b)). When everyone consents, the new lawyer ordinarily prepares the substitution paperwork for signature and filing.
Notice to the other side is required. Written notice of the change and of the substitution of a new attorney, or of the party's appearance in person, "must be given to the adverse party. Until then, the adverse party shall recognize the former attorney" (MCA § 37-61-404). Until notice is given, the other side may keep sending papers to your old lawyer.
Local rules add detail. In Missoula County, no attorney may withdraw from a case "except by consent of the client and/or by leave of Court after notice has been served on the parties and opposing counsel" (Fourth Judicial District Local Rule 21(B)).
If Your Lawyer Leaves Before You Have a New One
Sometimes the lawyer is the one who ends the relationship, or you discharge one lawyer before hiring another. Rule 1.16(b) lists when a lawyer may withdraw, including when it can be done without material adverse effect on the client or when the client substantially fails to meet an obligation after reasonable warning. A lawyer must comply with any law requiring notice to or permission of the court, and must keep going if the court orders it (Rule 1.16(c)).
When an attorney dies, is removed, or ceases to act, the statute says the party must, before further proceedings are had against them, be required by the adverse party, by written notice, "to appoint another attorney or appear in person" (MCA § 37-61-405). Uniform District Court Rule 10 fills in the procedure, including that the notice give a date by which the party must act, not less than 21 days out. If you receive such a notice, act on it. After the deadline the case can go forward without you. You may also continue on your own, a subject covered in filing for divorce without a lawyer.
Your File
The file follows you. On termination, a lawyer must take reasonably practicable steps to protect the client's interests, "such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred" (Rule 1.16(d)).
The same rule draws a line. A lawyer may keep "papers or materials personal to the lawyer or created or intended for internal use by the lawyer," and otherwise must deliver the originals or copies of papers or materials the client requests "and bear the copying costs involved." A retaining lien is limited: under Rule 1.8(i)(3), the lawyer must still deliver client papers reasonably necessary to protect the client's interest in the matter. Your new lawyer can request the file for you.
Your former lawyer's duty of confidentiality continues after the relationship ends (Rule 1.9(c)).
Money: Deposits and Unpaid Fees
Two questions come up. First, the deposit. Advance payments sit in a client trust account until earned (Rule 1.15(c)), and whatever has not been earned or incurred must be refunded (Rule 1.16(d)). You can ask for an accounting (Rule 1.15(d)).
Second, unpaid fees. Changing lawyers does not erase what you owe for work already done. An attorney who performs services has a lien that attaches to a settlement, decree, or judgment in the client's favor (MCA § 37-61-420(2)). Expect some overlap in cost as well, because a new lawyer has to read the file before acting on it. Our article on how divorce lawyers charge explains trust accounts and fee agreements.
Timing Near a Hearing or Trial
Nothing in MCA §§ 37-61-403 to 37-61-405 postpones a hearing because counsel changed. Dates are set by the court, and moving one takes a request the judge may grant or deny. Deadlines keep running too: a final declaration of disclosure is due no later than 45 days before the first assigned trial date (MCA § 40-4-253(1)). And where the change needs a court order, the court can decline or can order the current lawyer to continue (Rule 1.16(c)).
So a change early in a case costs little. A change on the eve of trial asks a new lawyer to prepare in days what took months, or asks the court for a delay it does not have to give. If you are close to a trial date and unhappy, get a second opinion quickly so that you are deciding with real information. Our Montana divorce timeline shows where the fixed dates fall, and how to choose a divorce lawyer covers what to look for the second time.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the current Montana Rules of Professional Conduct. It is not legal advice about your specific case.