A Montana divorce court can protect a spouse or child during the case in two ways. It can issue a temporary injunction inside the dissolution case itself, and it can issue an order of protection under a separate chapter of the code. They overlap, and the same judge can handle both. If you are in danger now, call 911. The National Domestic Violence Hotline is 1-800-799-7233. This page is part of our Montana Divorce Guide. Our Montana Domestic Violence Guide covers orders of protection and related criminal cases in more depth.
Two Kinds of Safety Orders
| Temporary injunction in the divorce | Order of protection | |
|---|---|---|
| Where it comes from | MCA § 40-4-121(2), inside the dissolution case | MCA Title 40, chapter 15 |
| Who may ask | Either party to the dissolution, by motion with an affidavit | A person in reasonable apprehension of bodily injury by a partner or family member, or a victim of a listed offense |
| Order without notice | A temporary restraining order for up to 21 days, on a finding that irreparable injury will result otherwise | A temporary order of protection for up to 20 days, on a finding that harm may result otherwise |
| Hearing | The other party must be served and is entitled to a hearing | Must be held within 20 days from the date the temporary order is issued, unless continued |
| How long it can last | The court determines at the hearing whether good cause exists for the injunction to continue for 1 year | An appropriate period set by the court, or permanently |
| Violation | A criminal offense under MCA § 45-5-220 or § 45-5-626 | A criminal offense under MCA § 45-5-626, and possibly § 45-5-220 |
Temporary Injunctions in the Dissolution Case
As part of a motion for temporary support, or by a separate motion with an affidavit, either party may ask the court for a temporary injunction (MCA § 40-4-121(2)). The relief the statute lists includes:
- enjoining a party from molesting or disturbing the peace of the other party or any family member, or from stalking;
- excluding a party from the family home or the other party's home on a showing that physical or emotional harm would otherwise result;
- enjoining a party from removing a child from the jurisdiction of the court;
- ordering a party to complete counseling, including alcohol or chemical dependency counseling or treatment; and
- additional relief available under Title 40, chapter 15.
The court may issue a temporary restraining order for up to 21 days without notice to the other party only if it finds that irreparable injury will result to the moving party if no order issues until the time for responding has passed (MCA § 40-4-121(4)). The other party must then be served and is entitled to a hearing (MCA § 40-4-121(5)). At the hearing the court must inform both parties that the injunction may limit rights relating to firearms under state or federal law, and it determines whether good cause exists for the injunction to continue for 1 year (MCA § 40-4-121(6)).
An order issued under this section must state conspicuously that violating it is a criminal offense (MCA § 40-4-121(8)(c)). And when the petitioner has fled the parties' residence, notice of the new residence must be withheld except by court order for good cause (MCA § 40-4-121(9)). Other temporary relief is covered in temporary orders during divorce.
Orders of Protection Under Title 40, Chapter 15
A person may petition for an order of protection if the person is in reasonable apprehension of bodily injury by a partner or family member, or is 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)). A petitioner is eligible whether or not the abuse was reported to law enforcement or charges were filed (MCA § 40-15-102(6)).
The process has two steps. On a sworn petition and a finding that the petitioner is in danger of harm if the court does not act immediately, the court shall issue a temporary order of protection (MCA § 40-15-201(2)). It can prohibit threats, violence, and contact, direct the respondent to stay 1,500 feet or another appropriate distance away, remove the respondent from the residence, prohibit removing a child from the court's jurisdiction, and restrain the disposal of property. A hearing must then be held within 20 days from the date the temporary order is issued, where the court decides whether good cause exists to continue, amend, or make the order permanent (MCA § 40-15-202(1)).
Two limits protect both sides. The respondent may request an emergency hearing before the 20 days run by filing an affidavit showing an urgent need, and that hearing must be set within 3 working days (MCA § 40-15-202(2)). And the court may not make an order of protection mutual. A respondent who wants one must file a separate application (MCA § 40-15-202(3)).
Which Court Hears It When a Divorce Is Pending
District courts, justice's courts, municipal courts, and city courts all have power to issue temporary orders of protection (MCA § 40-15-301(1)). Once a dissolution or parenting action between the parties is pending in district court, though, the petition generally belongs there. A lower court may take it only if the assigned district judge is unavailable or the petitioner left the county to escape further abuse, and it must then immediately certify the pleadings to the district court (MCA § 40-15-301(2)).
If the order of protection was filed first and a divorce is filed before the hearing, the hearing is held in the court where the order of protection was filed, and either party may appeal or remove the matter to district court (MCA § 40-15-301(3)). A petition may be filed in the county where the petitioner currently or temporarily resides, where the respondent resides, or where the abuse occurred, with no minimum length of residency (MCA § 40-15-301(4)).
How a Safety Order Interacts With the Parenting Plan
A safety order and a parenting plan answer different questions, and both have to be read together.
- Best interest factors. In deciding the parenting plan, the court considers physical abuse or the threat of physical abuse by one parent against the other parent or the child (MCA § 40-4-212(1)(f)). Frequent and continuing contact with both parents is considered to be in a child's best interest unless the court determines, after a hearing, that contact with a parent would be detrimental, and in making that decision it must consider evidence of abuse (MCA § 40-4-212(1)(l)).
- Contact with the children. An order of protection may restrain the respondent from contact with a minor family member (MCA § 40-15-204(4)). If an order and an interim parenting plan seem to conflict, do not guess. Ask the court to clarify.
- Mediation. Unless each party gives written, informed consent, the court may not authorize mediation if it has reason to suspect that a party or a child has been physically, sexually, or emotionally abused by the other party (MCA § 40-4-301(2)).
- Other cases. An order of protection must indicate whether other civil or criminal actions involving the parties are pending and in which court (MCA § 40-15-204(6)).
More on these subjects: divorce and domestic violence, interim parenting plans, and when agreement is not safe or possible.
Violations
A person commits the offense of violation of an order of protection by purposely or knowingly violating, with knowledge of the order, a provision of an order under MCA § 40-4-121 or an order of protection under Title 40, chapter 15. For a first offense the penalty is a fine not to exceed $500, up to 6 months in county jail, or both, and the penalties increase for second and later offenses (MCA § 45-5-626(1), (3)).
If an Order Is Sought Against You
Read the order closely and follow it exactly, including any limits on contact with the children and any terms about the home, even if you believe the petition is untrue. You are entitled to a hearing, and that is the place to respond with evidence. Contact that violates the order, even contact the other person invites, can be charged as a crime. Get legal advice before the hearing.
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 immediate danger, call 911.