If there has been abuse in your marriage, you can still get a divorce in Montana, and the law gives you tools that other divorcing spouses do not need: orders of protection, an exception to court-ordered mediation, and parenting rules that account for violence. Your safety comes first. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233, and an advocate there can help you plan. This page is part of our Montana Divorce Guide.
Safety Before Filing
Being served with divorce papers can raise tension in a household. Before filing, talk with a domestic violence advocate or a lawyer about where you and your children will be when your spouse learns of the case, what documents you need to take with you, and whether to ask for protective orders at the same time. Use a phone, computer, and email account your spouse cannot access.
Leaving the home to be safe does not cost you the right to ask for protection. The right to petition for an order of protection "may not be denied because the petitioner has vacated the residence or household to avoid abuse" (MCA § 40-15-301(5)).
Orders of Protection and Injunctions
A person may petition for an order of protection if they are in reasonable apprehension of bodily injury by a partner or family member, or are a victim of one of the listed offenses committed by a partner or family member, such as partner or family member assault or strangulation (MCA § 40-15-102(1)). Victims of certain offenses, including stalking and sexual assault, may petition regardless of their relationship to the offender (§ 40-15-102(2)).
| Tool | What the statute provides | MCA |
|---|---|---|
| Temporary order of protection | Can issue without prior notice to the other person for up to 20 days; a hearing must be held within 20 days | MCA §§ 40-15-201(4), 40-15-202(1) |
| Order of protection in the divorce case | The district court may, on request, issue an order for an appropriate period or a permanent order | MCA § 40-15-204(2) |
| Temporary injunction in the divorce case | Can bar disturbing the peace of the other spouse, exclude a spouse from the home, and bar removing a child from the court's jurisdiction | MCA § 40-4-121(2) |
| Confidential address | When the petitioner has fled the residence, notice of the new residence is withheld unless the court orders otherwise for good cause | MCA §§ 40-4-121(9), 40-15-201(3) |
A temporary order of protection can prohibit contact, direct the respondent to stay 1,500 feet or another appropriate distance away, remove the respondent from the residence regardless of who owns it, prohibit removing a child from the court's jurisdiction, and transfer possession of a vehicle and essential personal property (MCA § 40-15-201(2)). After a hearing the court may continue the order for an appropriate time or make it permanent (MCA § 40-15-204). An order of protection may not be made mutual; a respondent who wants one must file a separate petition (MCA § 40-15-202(3)). See orders of protection during a divorce.
The Mediation Exception
Montana courts may require divorcing spouses to mediate. Abuse changes that. Under MCA § 40-4-301(2), unless each party provides written, informed consent, "the court may not authorize or permit continuation of mediated negotiations if the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party." If mediation does go forward with consent, it may be conducted by a mediator trained in mediating domestic violence cases.
The same idea runs through parenting plan disputes after the divorce. The court's power to order parents into a dispute resolution process over amending a plan does not apply in cases of physical, sexual, or emotional abuse or threat of it by one parent against the other parent or the child (MCA § 40-4-219(9)).
This is also why cooperative approaches are not right for every couple. A&M Law's Cooperative Family Law process depends on both spouses meeting together and negotiating freely. Where one spouse fears the other, a traditional case with separate representation and court oversight is the safer path. Read when agreement is not safe or possible.
How Abuse Figures in a Parenting Plan
The court sets the parenting plan (what many people call custody and visitation) according to the child's best interest. The listed factors include "physical abuse or threat of physical abuse by one parent against the other parent or the child" (MCA § 40-4-212(1)(f)). The statute generally treats frequent and continuing contact with both parents as good for a child, but not when the court determines after a hearing that contact with a parent would be detrimental. In making that determination, the court must consider evidence of abuse, including whether a parent or someone living in that parent's household has been convicted of one of the crimes listed in MCA § 40-4-219(8)(b). That list includes partner or family member assault causing bodily injury, strangulation of a partner or family member, sexual assault, and endangering the welfare of children.
While the case is pending, a parent can ask for an interim parenting plan. A plan can address supervised contact, exchange locations, and communication methods. Describe specific incidents, dates, and any records you have. See the best interest factors.
After the Decree: Convictions and Objections
If, after a parenting plan is in place, a parent or a person living in that parent's household is convicted of one of the listed crimes, the other parent may file an objection to the current parenting order. The parent who receives notice has 21 days to respond. If that parent does not respond, their parenting rights are suspended until further order of the court; if they do respond and object, a hearing must be held within 30 days of the response (MCA § 40-4-219(8)(a)). The statute also directs the court to presume that a parent is not acting in the child's best interest in the circumstances subsection (8) describes (§ 40-4-219(3)).
Property, Maintenance, and Fees
Montana is a no-fault state, and that carries through to money. Property is apportioned and maintenance is set "without regard to marital misconduct" (MCA §§ 40-4-202(1), 40-4-203(2)). The court does consider dissipation of the estate, each spouse's health and employability, and each spouse's needs, so the financial effects of abuse can be relevant. A spouse without access to money can ask for temporary support and for the other spouse to pay a reasonable amount toward professional fees (MCA §§ 40-4-121, 40-4-110).
For how Montana handles abuse on the criminal side, including no contact orders, see our Montana Domestic Violence Guide.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case. If you are in danger, call 911.