A default divorce in Montana is what happens when one spouse is served with the petition and does not respond. Under Rule 55 of the Montana Rules of Civil Procedure, the clerk enters the default, and the filing spouse applies to the court for a decree. The court does not simply sign whatever is put in front of it. It still has to make the findings the dissolution statute requires, and the decree cannot go beyond the petition. This page is part of the filing section of our Montana Divorce Guide.
The Two Steps: Default, Then Default Judgment
Rule 55 separates two events that people tend to blur together.
- Entry of default. "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default" (M. R. Civ. P. 55(a)).
- Default judgment. The clerk can enter judgment alone only for a sum certain. "In all other cases, the party must apply to the court" (M. R. Civ. P. 55(b)). A dissolution is not a claim for a sum certain, so the decree comes from a judge. The court may hold a hearing when it needs to establish the truth of any allegation by evidence or investigate any other matter.
If the other spouse has appeared in the case in any way, personally or through a representative, they must be served with written notice of the application at least 7 days before the hearing (M. R. Civ. P. 55(b)(2)).
What Has to Be in Place First
A default rests on valid service. The court needs proof on file that the other spouse was served in a way Rule 4 allows, whether in person, by acknowledged mail, or by publication. See serving divorce papers and if you cannot find your spouse.
Time also has to pass. The served spouse has 21 days after service to file a verified response, and "a decree may not be entered until 21 days after the date of service" (MCA § 40-4-105(3)).
Finally, federal law applies to every civil case in which a party does not appear. Before entering judgment, the court must require an affidavit stating whether the absent party is in military service, or that the filing spouse is unable to determine it. A statement signed under penalty of perjury satisfies the requirement (50 U.S.C. § 3931(b)(1), (4)).
What the Court Still Has to Find
A missing response does not relieve the court of its job under MCA § 40-4-104(1). To enter a decree of dissolution, the court must find that:
- one spouse was domiciled in Montana, or stationed here in the armed services, for 90 days before filing;
- the marriage is irretrievably broken, supported by evidence of more than 180 days of living separate and apart or of serious marital discord; and
- to the extent it has jurisdiction, it has considered, approved, or made provision for parenting, child support, maintenance, and the disposition of property.
When one spouse has stated under oath that the marriage is irretrievably broken and the other has not denied it, the court makes its finding "after hearing" (MCA § 40-4-107(1)). How that hearing is conducted in a default varies by court.
Children raise the bar further. A final parenting plan "must be incorporated into any final decree or amended decree, including cases of dissolution by default" (MCA § 40-4-234(1)), and the court decides parenting according to the best interest of the child (MCA § 40-4-212(1)). Child support is set under the uniform child support guidelines, which "must be used in all cases, including cases in which the order is entered upon the default of a party." When a parent fails to provide financial information, a verified representation of that parent's income, based on the best information available, may be used (MCA § 40-4-204(3)(a)). See child support in Montana.
Limits on a Default Decree
Three limits protect the spouse who did not appear.
The petition is the ceiling. "A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings" (M. R. Civ. P. 54(c)). The served spouse is entitled to rely on the petition as a statement of the most that can happen if they stay silent. This is why what goes in the petition matters.
Disclosure still applies. In a default, the petitioner may waive the final declaration of disclosure, but "shall comply with the preliminary declaration of disclosure requirements" (MCA § 40-4-257). The preliminary declaration lists every asset and liability and is signed under penalty of perjury. See financial disclosure in a Montana divorce.
Jurisdiction still applies. If the absent spouse was served by publication, the decree does not bind that spouse personally unless the court has some other ground for personal jurisdiction (M. R. Civ. P. 4(o)(2)).
Setting Aside a Default
Rule 55(c) sets two standards. An entry of default, before any judgment, may be set aside "for good cause." A default judgment may be set aside only under Rule 60(b), which lists six grounds.
| Rule 60(b) | Ground | Time to move (Rule 60(c)(1)) |
|---|---|---|
| (1) | Mistake, inadvertence, surprise, or excusable neglect | Reasonable time, and no more than a year |
| (2) | Newly discovered evidence that could not have been found in time with reasonable diligence | Reasonable time, and no more than a year |
| (3) | Fraud, misrepresentation, or misconduct by an opposing party | Reasonable time, and no more than a year |
| (4) | The judgment is void | Reasonable time |
| (5) | The judgment has been satisfied or released, rests on a reversed judgment, or is no longer equitable to apply going forward | Reasonable time |
| (6) | Any other reason that justifies relief | Reasonable time |
The rule also preserves a court's power to grant relief to a person who was not personally notified of the action and to set aside a judgment for fraud on the court (M. R. Civ. P. 60(d)). Separately, federal law requires a court to reopen a default judgment entered against a servicemember during military service, or within 60 days after it ends, if the servicemember was materially affected by the service in making a defense and has a meritorious or legal defense. The application must be filed no later than 90 days after the service ends (50 U.S.C. § 3931(g)).
Whether a particular default will be set aside depends on the facts: why there was no response, how quickly the person acted, and whether they have something of substance to say on the merits. Montana courts have interpreted these rules in their decisions, and the outcome in any one case turns on its own record. If a default has been entered against you, act quickly. A decree of dissolution is final when entered, subject to the right of appeal (MCA § 40-4-108(1)), and a Rule 60(b) motion does not affect the judgment's finality or suspend its operation (M. R. Civ. P. 60(c)(2)).
Default Is Not the Same as Uncontested
Some couples who agree on everything assume the simplest path is for one to file and the other to do nothing. That works against both of them. The silent spouse gives up a voice in the terms, and the filing spouse gets a decree that rests on a default instead of a signed agreement. When both spouses agree, Montana offers better tools: a joint petition, a written separation agreement, and entry of a decree without a hearing on affidavits (MCA § 40-4-108(4)). Our uncontested divorce page describes how the firm helps with that.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the Montana Rules of Civil Procedure. It is not legal advice about your specific case.