Filing and Serving Divorce Papers

Either spouse may file for a Dissolution in Montana only if Montana has jurisdiction over your case. Montana has jurisdiction over your Dissolution if one spouse has resided in Montana for at least 90 days before filing a petition. When there are children from the marriage under 18, they must have resided in Montana for at least six months before you can file for a Dissolution in the state. There are a few exceptions, mostly related to safety issues for the children or a spouse. In general, Montana Courts only have jurisdiction if the children have resided in the state for at least six months before filing a petition.  

You can find the laws that talk about jurisdiction in Montana Code Annotated (M.C.A.) § 40-4-211. The “§” is a symbol that means section. 40 is the Title. 4 is the Chapter. And, 211 is the Part. If you have questions about filing for a Dissolution in Montana, talk to a lawyer. 

You must file a Dissolution in the District Court in a county where the venue is proper. A county may be a proper venue if:

• One or both spouses live in the county,
• One or both spouses own real property in the county,
• The children live in the county,
• Or, the children have important ties to the county, like where they go to school or see their doctor.

Based on your situation, there could be more than one county that may be a proper venue. If you have questions about which county to file in, talk to a lawyer.

Make 2 copies (3 sets of forms total). Take all the copies to the Clerk of District Court office. The Clerk of Court will keep the original set of forms. One copy is for you to keep in a safe place, and the other copy you will serve on your spouse. 

If you can't afford to pay the court filing fee, you can ask the judge to allow you to file your paperwork without having to pay the fee. Learn more about fee waivers. 

If you have children and your children get Medicaid, TANF, or SNAP you need an extra copy of your documents to mail to the Department of Public Health and Human Services (DPHHS). You will also need the extra copy to mail to DPHHS if you already have a child support case open with the Child Support Services Division (CSSD).

You serve DPHHS by mailing or taking to the nearest CSSD office these documents:

1. Notice and Acknowledgement to CSSD MP 404

• Complete the first 3 pages of MP 404 with your own information.
• On page 4, fill out the top part with the Judicial District, County, names of the parties, and the case number. Also fill in the address for the Clerk of Court on the last page.
• When mailing MP 404 Notice and Acknowledgement to CSSD, include a stamped envelope addressed to the Clerk of Court in your county so CSSD can send in the Acknowledgment to the Clerk of Court. The Acknowledgment is proof you served CSSD.

AND copies of the following documents that you filed with the Court:

2. Petition for Dissolution MP 113

3. Proposed Parenting Plan MP 300

4. Description of Existing Medical Coverage MP 300 G

After you file for divorce you have to give documents to your spouse.  The court calls giving documents to your spouse serving documents.  Serving documents does not always mean the same thing.  The first documents you give your spouse must be hand delivered. You can't hand deliver the documents yourself. A person who is not part of your case must hand the documents to your spouse. Then, the person has to fill out a written statement. The written statement must say when and where the person handed the documents to your spouse. The written statement is an affidavit of service, or a proof of service.  You have to make sure the proof of service is filed with the court.  The court calls having  someone else hand deliver documents personal service.  Only the first documents must be hand delivered.  You can serve the rest of the documents by mailing them to your spouse.  

There are three ways to serve the first set of documents:

• Service by Sheriff or private process server, 
• Service through Notice and Acknowledgement, or 
• Service by Publication. 

The way you serve your spouse depends on your situation and your relationship. Almost everyone who files their own divorce uses the Sheriff to serve the first set of documents.  If you want to try a different way, you should talk to an attorney first.

You need to have the Sheriff in the county where your spouse lives serve your documents.  The Sheriff will need:

• One copy of your first set of documents
• The original of the Summons and Automatic Economic Restraining Order MP 400. 
  • The Clerk should have given you back the original when you filed your documents. 
• Request for Sheriff to Serve Documents MP 401

If the Judge signed a fee waiver order, the Sheriff will serve your documents for free.  Without a fee waiver, you will have to pay the Sheriff to serve the documents.  Private process servers always charge a fee.  Usually a private process server costs more than the Sheriff.  A private process server usually needs the same documents as the Sheriff.  If you use a private process server, make sure you ask what documents they need.

Notice and Acknowledgement means that you mail or hand deliver the first set of documents to your spouse.  Then your spouse signs a form to say they got the documents and gives it back to you.  If your spouse does not sign the form and give it back, you must serve another way.  To serve by Notice and Acknowledgement you mail or hand deliver: 

• Copies of the first set of documents
• Notice and Acknowledgment of Service MP 403.1
• Acknowledgement of Service MP 403.2. 
  • Your spouse needs to return the signed Acknowledgement to you. You must file it with the Clerk of District Court after your spouse signs it. You must wait 21 days for your spouse to return the Acknowledgement before you can serve them another way.

You can only serve by publication after you have made good faith efforts to serve your spouse another way.  Good faith efforts means you asked the Sheriff in the county where your spouse was living to serve them and the Sheriff could not find them.  The court also expects you to contact friends and family of your spouse to try and find your spouse.  Service by Publication requires an extra set of documents. Service by Publication also involves the extra cost of publishing in a newspaper.  To ask the court for permission to serve by publication you will need:

• Request for Order Granting Service of Summons by Publication MP 402.1
• Order for Service of Summons by Publication MP 402.2
• Summons for Publication MP 402.3

You have to wait for the Court to approve your request by signing the Order allowing Service by Publication.

Here is a list of the first set of documents to serve on your spouse:

• Petition for Dissolution MP 113
• Summons and Automatic Economic Restraining Order MP 400
• (If minor children) Proposed Parenting Plan MP 300
• (If required) Description of Existing Medical Coverage MP 300 G
• Proposed Property Distribution MP 500
• Disclosure of Income and Expenses MP 510
  • You do not file this document with the Court; MP 510 is only served on your spouse. Remember to keep a copy for yourself.

You can find all the forms you need in the divorce packets on this website:

• Petition for Dissolution/Divorce with Children Packet

• Petition for Dissolution/Divorce without Children Packet

After your spouse has been served with the divorce papers, the person who served the papers must complete the Proof of Service form (this can be found in the Petition for Dissolution without Children packet). Normally, this person will file the Proof of Service and return a copy to you, but you should talk about this with the person beforehand. If your spouse signed the Notice and Acknowledgement, the Acknowledgment is your Proof of Service.

After you serve your spouse they have 21 days to file a written response with the court. If your spouse doesn’t file a Response with the Court, you can ask for a default. A default means you get what you asked for in the Petition. For more information, you can read the The Ultimate DIY Guide to Divorce and Custody in Montana

• Montana Legal Services Association (MLSA) provides free civil, non-criminal legal help to eligible clients. Learn more about how to apply for free legal help in Montana.
• If you qualify for Montana Legal Services Association (MLSA), you may be able to get free legal advice from a volunteer attorney from AskKarla.org. Go to AskKarla.org.