Montana Divorce Guide

Same-Sex Divorce in Montana

There is one dissolution process in Montana, and it applies to every married couple. Two questions need closer attention: how long the marriage is treated as lasting, and who is a legal parent.

Written by

Misty Gaubatz, Partner, A&M Law

Licensed Montana attorney and co-founder of A&M Law. Over two decades in the practice of law focusing on family law, criminal defense, and DUI defense, with federal and state court experience and a Certificate in Mediation.

Montana Bar #122346+ years as an attorney, with over two decades working in the lawReviewed by Ashley HurlbertLast reviewed: September 22, 2026

Key Takeaways: Same-Sex Divorce in Montana

Same-sex spouses use the same dissolution statutes, residency rule, and court process as any other married couple in Montana.
In Obergefell v. Hodges (2015), the U.S. Supreme Court held that states must license and recognize same-sex marriages on the same terms as opposite-sex marriages.
Property is apportioned however and whenever acquired (MCA § 40-4-202(1)), so assets from years together before the wedding are still before the court.
The duration of the marriage is a factor for property and maintenance. Couples together long before they could marry should get advice on how their history is presented.
Being a legal parent matters more than anything else in the parenting part of the case. An adoption decree or court judgment is the clearest proof.
A spouse who is not a legal parent has a harder standard to meet under MCA § 40-4-228.

Same-sex spouses divorce in Montana under exactly the same law as everyone else. The case is a dissolution of marriage under Title 40, chapter 4 of the Montana Code, with the same residency requirement, the same no-fault ground, and the same rules for property, maintenance, parenting, and child support. Where same-sex couples sometimes face extra questions is in the facts the statutes rely on: the date of the marriage and the legal parentage of the children. This page is part of our Montana Divorce Guide.

The Same Statutes Apply

In Obergefell v. Hodges (U.S. Supreme Court, 2015), the Court held that same-sex couples may exercise the fundamental right to marry and that state laws are invalid "to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." It also held that a state has no lawful basis to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

Montana's code has not been fully updated. As of the 2025 Montana Code Annotated, MCA § 40-1-401(1)(d) still lists a marriage between persons of the same sex among prohibited marriages. Under Obergefell, that provision cannot be applied to deny a same-sex couple marriage or the legal incidents of marriage, and a valid marriage is ended by the same dissolution process. For the basic requirements, see how divorce works in Montana.

Marriage Date Versus Length of the Relationship

The duration of the marriage is a factor the court must consider in apportioning property (MCA § 40-4-202(1)) and in setting maintenance once the threshold test is met (MCA § 40-4-203(2)(d)). A couple may have shared a home and finances for many years before they were legally able to marry. The statutes do not say how those earlier years are to be treated.

For property, the question matters less than you might expect. Montana does not limit the court to property acquired during the marriage. It apportions property belonging to either or both spouses "however and whenever acquired" and regardless of title, and for premarital property it considers the other spouse's contributions to the marriage, including nonmonetary contributions as a homemaker (§ 40-4-202(1)). A house bought together five years before the wedding is before the court either way. What you can show about who contributed what, and when, is what counts. See separate vs. marital property.

For federal rules that count years of marriage, such as Social Security's 10-year requirement for a divorced spouse (42 U.S.C. § 416(d)), the count is of years married, so know your marriage date and ask the agency how it applies.

Could There Have Been an Earlier Marriage?

Montana is one of the states that recognizes common-law marriage. The marriage chapter says that "common-law marriages are not invalidated" by it (MCA § 40-1-403). Whether a same-sex couple who held themselves out as married before a ceremony had a common-law marriage, and from what date, is not answered by the statute and depends heavily on the facts. If the answer would change the outcome of your case, raise it with a lawyer early. Our guide to common-law marriage and divorce explains the general rules.

Who Is a Legal Parent

In a parenting plan dispute between two legal parents, the court applies the best interest factors in MCA § 40-4-212 and neither parent starts ahead because of biology or sex. Montana defines the parent and child relationship as the legal relationship between a child and the child's "natural or adoptive parents" (MCA § 40-6-102(1)). The practical question is how each spouse's parentage was established:

Adoption. A spouse may adopt the other spouse's child (MCA § 42-1-106(1)), and a stepparent has standing to petition under MCA § 42-4-302. The statute says husband and wife; after Obergefell, married same-sex spouses are entitled to the same terms. An adoption decree is a court judgment and is the most secure footing.
Birth during the marriage. Montana's presumption applies to a person married to the child's natural mother when the child is born during the marriage or within 300 days after it ends (MCA § 40-6-105(1)(a)). The text refers to a father. In Pavan v. Smith (U.S. Supreme Court, 2017), the Court reversed a state court that had allowed a state to list a birth mother's husband on a birth certificate but not a birth mother's wife, because Obergefell requires that same-sex couples receive the benefits states link to marriage.
Assisted reproduction. MCA § 40-6-106 treats a husband who consents in writing to his wife's artificial insemination under a physician's supervision as the natural father. The statute is also written in gendered terms.

A birth certificate alone is evidence, not a judgment. Because the Montana presumption statutes have not been rewritten, a non-birth parent who has not adopted should get legal advice before a divorce is filed, and ideally well before. Our LGBT family law page covers adoption and parentage planning.

If One Spouse Is Not a Legal Parent

A spouse who helped raise a child but is not a legal parent is treated as a nonparent. A court may award a parental interest to a nonparent only on clear and convincing evidence that the natural parent has engaged in conduct contrary to the child-parent relationship, that the nonparent has established a child-parent relationship with the child, and that continuing it is in the child's best interest (MCA § 40-4-228(2)). The statute says that voluntarily permitting a child to remain continuously in the care of others for a significant period so that they stand in the place of a parent is such conduct (§ 40-4-228(4)). That is a much harder path than a dispute between two legal parents, and child support follows legal parentage as well.

Money Issues Work the Same Way

Maintenance, retirement division, and debt are handled as in any other case. See how property is divided in Montana and spousal maintenance in Montana. A&M Law is a Missoula family law firm. We represent individual clients in traditional cases, and for spouses who want an amicable route we offer Cooperative Family Law, in which the firm serves as a neutral for both spouses.

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.

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FAQ

Same-Sex Divorce in Montana FAQ

Can same-sex couples get divorced in Montana?

Yes. A married same-sex couple ends the marriage by dissolution under Title 40, chapter 4, the same as any other couple. One spouse must have been domiciled in Montana, or stationed here in the armed services, for 90 days before filing, and the marriage must be irretrievably broken (MCA § 40-4-104(1)).

We married in another state. Can we divorce in Montana?

Yes, if one of you meets Montana's 90-day requirement. Obergefell v. Hodges (2015) held that there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character. Where you married does not limit where you can divorce.

Does the time we lived together before we could marry count?

The statutes speak of the duration of the marriage, and they do not address years together before a legal marriage. Two points help. First, Montana apportions property however and whenever acquired, so property from before the wedding is not excluded from the court's consideration (MCA § 40-4-202(1)). Second, Montana recognizes common-law marriage (MCA § 40-1-403), and whether one existed earlier is a fact question to raise with a lawyer.

My spouse gave birth to our child. Am I a legal parent?

It depends on how your parentage was established. If you adopted the child, you are a legal parent. If you are relying on the marriage alone, Montana's presumption statute is written in terms of a father and a natural mother (MCA § 40-6-105), and its application to a non-birth spouse of the same sex is not spelled out in the text. Get advice before you file. See our LGBT family law page.

Is the process different for same-sex spouses?

No. The petition, service, financial disclosure, temporary orders, and decree are the same. Montana's statutes still use the words husband and wife in places, but the property and maintenance rules apply to either spouse without regard to sex.

Ending a Same-Sex Marriage in Montana?

We can review your marriage history and how each of you became a parent, and explain what that means for your case. Call 406-830-3060 for a confidential consultation.

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