Montana Domestic Violence Guide

Divorce During a Pending PFMA Case in Montana

A divorce and a criminal case can run at the same time. What you say in one can be read in the other.

Written by

Licensed Montana attorney and co-founder of A&M Law. 18 years of experience as lead counsel in 50+ jury and bench trials. A Certified Mediator and Certified Guardian ad Litem focusing on family law, criminal defense, and DUI defense.

18 yearsReviewed by Misty GaubatzLast reviewed: September 20, 2026

Key Takeaways: Divorce During a Pending PFMA Case in Montana

Montana dissolution is no-fault. The court asks whether the marriage is irretrievably broken, not who caused it (MCA § 40-4-104(1)(b)).
Property, maintenance, and child support are decided "without regard to marital misconduct". Parenting is different, because abuse is a best interest factor.
A served spouse has 21 days to file a verified response (MCA § 40-4-105(3)). A pending criminal case does not pause that deadline by itself.
Petitions, responses, and affidavits are sworn statements. A party's own statement can be offered against that party in another case.
A no contact order still applies. All divorce communication goes through lawyers or the court, not directly between spouses, unless an order says otherwise.
Filing triggers an automatic economic restraining order that limits what either spouse can do with marital property (MCA § 40-4-126).

You can file for divorce, or be served with one, while a partner or family member assault (PFMA) charge is pending. Montana dissolution is no-fault, so the charge does not decide whether the marriage ends or how property is divided. It does bear on the parenting plan, and anything you put in a sworn family court filing can be read by the prosecutor. This page covers how the two cases interact. It is part of our Montana Domestic Violence Guide.

Montana Divorce Is No-Fault

A district court enters a decree of dissolution when three things are shown (MCA § 40-4-104(1)):

one party was domiciled in Montana, or stationed here as a member of the armed services, for 90 days before the action was filed;
the marriage is irretrievably broken, supported by evidence that the parties have lived separate and apart for more than 180 days before filing, or that there is serious marital discord that adversely affects the attitude of one or both parties toward the marriage; and
the court has addressed parenting, child support, maintenance, and property to the extent it has jurisdiction.

Older fault defenses, including condonation, collusion, and recrimination, are abolished (MCA § 40-4-105(4)). Neither spouse has to prove the other did something wrong.

Where the Allegation Does and Does Not Matter

Issue	Does alleged abuse matter?	MCA
Granting the dissolution	No. The question is whether the marriage is irretrievably broken.	40-4-104(1)(b)
Dividing property	The court apportions property without regard to marital misconduct.	40-4-202(1)
Maintenance	Set without regard to marital misconduct.	40-4-203(2)
Child support	Set without regard to marital misconduct, using the state guidelines.	40-4-204(1) and (3)
Parenting plan	Yes. Physical abuse or threat of physical abuse is a listed factor.	40-4-212(1)(f)
Temporary orders	Yes. A party can be excluded from the family home on a showing that physical or emotional harm would otherwise result.	40-4-121(2)(c)

The practical result is that the criminal allegation concentrates its effect on two parts of the divorce: the temporary orders at the start, and the parenting plan. See parenting plan factors and abuse.

Sworn Statements and the Criminal Case

A dissolution petition is verified, meaning sworn, and so is the response (MCA § 40-4-105(1) and (3)). Motions for temporary orders and interim parenting plans require affidavits setting out facts (MCA §§ 40-4-121(1) and 40-4-220(1)). In a contested case you may also be asked questions under oath.

Two rules make this matter for a pending charge. Rule 801(d)(2) of the Montana Rules of Evidence covers an "admission by party-opponent," which includes a statement offered against a party that is the party's own statement. And the Montana Constitution provides that "No person shall be compelled to testify against himself in a criminal proceeding" (Article II, section 25). How that protection is asserted in a civil case, and what it costs you there, is a judgment call that belongs to your lawyers, made question by question.

The safe practice is simple. Nothing that describes the incident, your relationship history, or your drinking or temper goes into the family file until your criminal defense lawyer has read it. That includes informal documents such as a parenting evaluation questionnaire or a letter to a guardian ad litem.

Deadlines Do Not Wait for the Criminal Case

If you are served, you may file a verified response within 21 days after the date of service (MCA § 40-4-105(3)). The dissolution statutes do not contain an automatic pause for a pending criminal charge. A court can be asked to adjust the schedule, and practice varies by judge, but you should assume every family court deadline is real.

Missing the response deadline can lead to orders entered without your input, including a parenting plan, because a final plan is incorporated into a decree even in a default (MCA § 40-4-234(1)).

The No Contact Order Still Applies

A divorce does not create an exception to a no contact order under MCA § 45-5-209 or to a release condition. You may not call your spouse to talk about settlement, the house, or the children unless an order specifically allows it. Consent of the protected person is not a defense.

Communication moves through lawyers and court filings. If you do not have a family lawyer, ask the court clerk how to serve documents without direct contact, and do not hand anything to your spouse yourself or through a relative unless the order allows that. Court hearings where both spouses appear should be raised with your criminal defense lawyer beforehand, so the no contact order can be addressed. Our page on what counts as contact explains the limits.

Money and the House From Day One

On filing, the clerk issues an automatic economic restraining order with the summons. It restrains both parties from transferring, encumbering, concealing, or disposing of marital property without written consent or a court order, with exceptions for the necessities of life and ordinary business, and from things like canceling insurance or changing beneficiaries (MCA § 40-4-126(1)). It binds the petitioner on filing and the respondent on service.

Either party may also ask for temporary maintenance, temporary child support, or a temporary family support order that assigns who pays which bills while the case is pending (MCA § 40-4-121(1)). We cover that in the family home and bills during the case.

Timing: File Now or Wait

There is no single right answer. Reasons people file while the criminal case is open include the need for a parenting schedule, support, or decisions about the home. Reasons to move carefully include the risk that sworn statements or testimony will be used in the criminal case, and the fact that the outcome of the charge may change the parenting analysis. A conviction for certain offenses gives the other parent a specific tool under MCA § 40-4-219(8).

These tradeoffs are why the criminal and family lawyers must talk to each other. See one lawyer for criminal and family cases, our divorce page, and PFMA and child custody.

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

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FAQ

Divorce During a Pending PFMA Case in Montana FAQ

Can I file for divorce while I have a pending PFMA charge?

Yes. Nothing in the dissolution statutes bars a filing because a criminal case is pending. The court needs a party domiciled in Montana for 90 days before filing and a finding that the marriage is irretrievably broken (MCA § 40-4-104(1)). Whether to file now or wait is a strategy question that depends on both cases.

Does a PFMA charge matter in a Montana divorce?

Not for the divorce itself or for dividing property, which the court does without regard to marital misconduct (MCA § 40-4-202(1)). It can matter a great deal for the parenting plan, because physical abuse or threat of physical abuse is a best interest factor under MCA § 40-4-212(1)(f).

Can what I say in the divorce be used in my criminal case?

It can be offered. Rule 801(d)(2) of the Montana Rules of Evidence treats a party's own statement, offered against that party, as an admission by a party-opponent. Divorce petitions and responses are verified, and affidavits are sworn. Have your criminal defense lawyer review anything that describes the incident before it is filed.

I was served with divorce papers and there is a no contact order. How do I respond?

Through the court and, ideally, through a lawyer. You have 21 days after service to file a verified response (MCA § 40-4-105(3)). Filing a response with the clerk is not contact with your spouse, but calling or messaging your spouse about the papers is. Your lawyer handles service and any discussion with the other side.

How long does a divorce take in Montana?

The statute sets one floor: a decree may not be entered until 21 days after the date of service (MCA § 40-4-105(3)). Beyond that, timing depends on whether parenting, support, and property are contested and on the court's calendar. A pending criminal case often slows the contested parts.

Dealing With a Divorce and a Criminal Charge at Once?

Ashley Hurlbert handles both criminal defense and family law matters, so the two cases can be planned together. Call 406-830-3060 for a confidential consultation.

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