A military divorce in Montana is a dissolution of marriage under the same state statutes as any other, with three federal layers added: the Servicemembers Civil Relief Act, which protects a member who cannot take part in the case; the Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408), which governs retired pay; and benefit rules for former spouses. This page is part of our Montana Divorce Guide and applies whether you are the service member or the spouse.
Filing in Montana When You Are Stationed Here
Montana's residency rule has a specific military provision. The court may enter a decree if one of the spouses, when the case began, was domiciled in Montana "or was stationed in this state while a member of the armed services" and that domicile or military presence had been maintained for 90 days before filing (MCA § 40-4-104(1)(a)). The case is filed in the county where either spouse has resided during the 90 days before filing (MCA § 25-2-118(3)).
Military families often have more than one state available, such as a state of legal residence and a duty station. Where a case can be filed and where it should be filed are different questions, and the retired pay rule below is one reason. See the residency requirement for divorce.
Default Protections Under the SCRA
Section 3931 of the Servicemembers Civil Relief Act applies to any civil case, including a child custody proceeding, in which the defendant does not appear. Before entering judgment, the court must require an affidavit stating whether the defendant is in military service. If it appears the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent that person (50 U.S.C. § 3931(b)).
The court must grant a stay of at least 90 days if it finds there may be a defense that cannot be presented without the member, or that the appointed attorney has been unable to contact the member (§ 3931(d)). A default judgment entered during service, or within 60 days after it ends, must be reopened on the member's application if military service materially affected the ability to defend and there is a meritorious defense to all or part of the case. The application is due no later than 90 days after service ends (§ 3931(g)). See default divorce in Montana.
Asking for a Stay
A service member who has notice of the case, and is in military service or within 90 days after it ends, may apply for a stay at any stage before final judgment. The court must stay the action for not less than 90 days if the application includes (50 U.S.C. § 3932(b)):
- a letter or other communication explaining how current military duty materially affects the member's ability to appear and giving a date when the member will be available; and
- a letter or other communication from the commanding officer stating that current duty prevents appearance and that leave is not authorized.
The member can ask for an additional stay. If the court refuses one, it must appoint counsel for the member (§ 3932(d)). Applying for a stay is not an appearance and does not waive any defense, including lack of personal jurisdiction (§ 3932(c)). These are protections against being decided against in your absence. They postpone a case; they do not end it.
Military Retired Pay
Federal law allows a court to treat disposable retired pay "either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court" (10 U.S.C. § 1408(c)(1)). In Montana that law is the equitable apportionment statute, MCA § 40-4-202. Several federal limits apply:
- Jurisdiction. The court must have jurisdiction over the member by residence other than because of military assignment, by domicile, or by consent (§ 1408(c)(4)). Being stationed here is enough to file for divorce but is not, alone, one of those three grounds.
- What is divisible. Disposable retired pay excludes, among other things, amounts waived to receive disability compensation (§ 1408(a)(4)(A)).
- Divorce before retirement. For a decree that becomes final before the member retires, the divisible amount is computed from the member's pay base and years of service on the date of the decree, with cost-of-living adjustments (§ 1408(a)(4)(B)).
- No forced retirement. A court cannot order a member to apply for retirement or retire at a particular time (§ 1408(c)(3)).
More detail, including the Survivor Benefit Plan, is in military pensions and benefits in divorce.
Key Rules at a Glance
| Issue | Rule | Source |
|---|---|---|
| Filing in Montana | One spouse domiciled here, or stationed here in the armed services, for 90 days before filing | MCA § 40-4-104(1)(a) |
| Default against a service member | Affidavit of military status required; court appoints an attorney before entering judgment | 50 U.S.C. § 3931(b) |
| Stay on the member's request | At least 90 days when the application includes the two required communications | 50 U.S.C. § 3932(b) |
| Power to divide retired pay | Court needs jurisdiction over the member by domicile, consent, or residence not due to military assignment | 10 U.S.C. § 1408(c)(4) |
| Direct payment of a property share | Marriage of 10 years or more overlapping 10 years of creditable service | 10 U.S.C. § 1408(d)(2) |
| Cap on direct payments for property | 50 percent of disposable retired pay under all such orders | 10 U.S.C. § 1408(e)(1) |
| Continued military health care | Unremarried former spouse; 20 years of marriage, 20 years of service, 20 years of overlap; no employer plan | 10 U.S.C. § 1072(2)(F) |
A former spouse who does not meet the 20-year test for continued military health care should plan for other coverage. See health insurance after divorce. If the decree requires former spouse coverage under the Survivor Benefit Plan and the member does not make the election, the former spouse can ask that it be deemed made, but the request must reach the service within one year of the court order (10 U.S.C. § 1450(f)(3)).
Parenting Plans and Deployment
Montana law addresses military service directly in its parenting statutes. The court must consider all the usual best interest factors and "may not determine the best interest of the child based only upon the parent's military service" (MCA § 40-4-212(2)). It may not disapprove a proposed final parenting plan only because of a parent's military service (MCA § 40-4-234(3)). And a change made because of service orders is temporary unless the service member agrees otherwise (MCA § 40-4-219(10)).
Federal law sets a similar floor: a temporary order based solely on deployment must expire no later than the period the deployment justifies, and absence by reason of deployment may not be the sole factor in a permanent change (50 U.S.C. § 3938). A good plan spells out care during deployment, contact while away, and how the schedule resumes. See parenting plans in Montana.
Getting Help
The pay center, the plan administrators, and the service branches each have their own forms and deadlines, so build the federal steps into the decree instead of leaving them for later. A&M Law is a Missoula family law firm, and our military divorce page describes how we work with service members and spouses. When both spouses want an amicable resolution, our Cooperative Family Law process is another option.
This page explains Montana and federal law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.