Montana law does not stop you from filing for divorce (a dissolution of marriage) while you or your spouse is pregnant. The pregnancy does change the case in three ways: it must be stated in the petition, it rules out the summary procedure, and it means the court will be dealing with a child whose legal parentage is set by a statutory presumption. This page is part of our Montana Divorce Guide and is written for either spouse.

The Petition Must Say Whether the Wife Is Pregnant

A dissolution petition is verified, meaning it is signed under oath. Among the facts it must set out are "the names, ages, and addresses of all living children of the marriage and whether the wife is pregnant" (MCA § 40-4-105(1)(d)). The requirement applies no matter which spouse files. If a pregnancy is discovered after filing, tell your lawyer so the pleadings can be corrected.

Summary Dissolution Is Not Available

Montana's summary dissolution procedure is a simplified route for couples with limited property and debts. All of its conditions must exist on the day the case is started, and one of them is that "the wife is not pregnant" (MCA § 40-4-130(3)). A couple expecting a child must use the regular procedure. That does not mean the case has to be contested. If you agree on terms, you can still file a joint petition.

Will the Court Finish the Case Before the Birth?

The statutes do not answer this directly. A decree requires 90 days of domicile, an irretrievably broken marriage, and that the court, "to the extent it has jurisdiction to do so," has considered, approved, or provided for parenting, child support, maintenance, and property (MCA § 40-4-104(1)). Where one spouse files and serves the other, a decree may not be entered until 21 days after service (MCA § 40-4-105(3)).

None of those provisions mentions an unborn child. A parenting plan and a guideline child support calculation both depend on facts that do not exist until the child is born, and Montana's parenting jurisdiction statute defines a newborn's home state as the state where the child has lived from birth (MCA § 40-7-103(7)). Practice on whether to enter the decree first and address the child afterward, or to wait for the birth, varies by court. Ask about your judge's approach early, because it affects health insurance, the parentage presumption, and how many proceedings you will need.

Montana's Presumption of Paternity

Under MCA § 40-6-105(1)(a), a person is presumed to be the natural father of a child if that person and the child's mother "are or have been married to each other and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce or after a decree of separation is entered by a court."

  • If the child is born before the decree, the child is born during the marriage and the presumption applies.
  • If the child is born within 300 days after the decree, the presumption still applies to the former spouse.
  • The presumption supports a support order. It is "a sufficient basis for establishing a support order" (§ 40-6-105(4)(a)).

The statute is written in terms of a father and a natural mother. How parentage works for married same-sex spouses is discussed in same-sex divorce in Montana.

When the Spouse Is Not the Biological Father

The presumption is rebuttable. It may be rebutted in an appropriate action by a preponderance of the evidence, or by scientific evidence from a paternity test that excludes the person as the child's natural parent (MCA § 40-6-105(3)). Any interested party may bring an action to determine whether the presumed relationship exists (MCA § 40-6-107(1)). An action brought before the birth is stayed until after the birth, except for service of process and depositions to preserve testimony (§ 40-6-107(4)).

Two cautions apply to everyone involved. First, an agreement between the spouses that the husband is or is not the father does not by itself settle the question, and it does not bar a later action unless a court approved it (§ 40-6-107(3)). Second, timing has financial consequences: if a presumption is later rebutted while the person is under a support order, relief runs only from the date of the order declaring the presumption rebutted (§ 40-6-105(4)(b)). If parentage is in doubt, raise it in the divorce, not years afterward.

Support and Health Coverage While You Wait

Either spouse may ask the court for temporary maintenance or a temporary family support order while the case is pending, supported by an affidavit of the facts and amounts requested (MCA § 40-4-121(1)). The automatic economic restraining order that issues with the summons restrains both spouses from canceling or allowing to lapse existing health insurance covering the spouses or children (MCA § 40-4-126). If you are the pregnant spouse and are covered through the other spouse's employer, find out what happens to that coverage on the day the decree is entered, and look at health insurance after divorce before you agree to a date. Healthcare.gov lists having a baby as an event that opens a special enrollment period for Marketplace coverage.

One of the best interest factors a court considers later is whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay (MCA § 40-4-212(1)(j)). See temporary orders during divorce and child support in Montana.

Planning for the Parenting Plan

Once the child is born, the court decides parenting according to the child's best interest, and the developmental needs of the child are among the listed factors (MCA § 40-4-212(1)). Plans for infants usually need to change as the child grows, so build in review points. See parenting schedules by age.

If you are afraid of your spouse, your safety comes first. Call 911 if you are in danger. The National Domestic Violence Hotline is 1-800-799-7233, and our page on divorce and domestic violence explains the protections available.

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