Temporary Court Orders in Montana
Authored By: Montana Legal Services Association (MLSA)
This article focuses on temporary orders in a Dissolution or Parenting Plan case in Montana. You will learn:
- How to ask the Court to make a decision or take action.
- Common types of Court Orders during a Dissolution or Parenting Plan case.
- What you can do if the other party won’t follow a Court Order.
What if the other parent has hurt me or the children?
There are a few important things to know if you are leaving a violent or abusive relationship. The end of a violent relationship is sometimes the most dangerous point for the victim and children. There may be free legal and non-legal help for people leaving a domestic violence relationship. It is a good idea to come up with a safety plan. You may also want to look into getting an Order of Protection. It is important to know that the Court may base some of its decisions on safety concerns for the parents and/or children.
Montana Courts will often issue Temporary Orders during a Dissolution or Parenting Plan case. The legal term for a divorce in Montana is a “Dissolution of Marriage.” We’ll use Dissolution to keep it simple.
A temporary order will often lay out specific things that one or more parties must do during the case. For example, a temporary order might tell a parent they must go to parenting classes or get counseling. A temporary order ends when a final order takes over or the legal case ends. You must follow all temporary orders until the Court says something different.
When the legal case ends, the Judge will issue Final Orders. For example, after a parenting case, the Court will issue a Final Parenting Plan. At the end of a Dissolution, the Court will issue a Final Decree of Dissolution. You must follow final orders after the case, and until the Court says something different.
The Judge may give you verbal orders during a hearing. You must follow those. A Judge may also issue written orders throughout the case. You’ll need to follow those as well. The Clerk of Court will mail you the Judge’s written orders at the address they have on file for you. Make sure your address is updated with the Court. If you are concerned about your safety with the other side knowing your address, notify the Court. You can ask the Clerk of Court about their process for keeping your address safe.
If you are confused about what exactly the Judge has ordered during a hearing, it is a good idea to ask for clarification. If you are having a hard time understanding a Judge’s written orders, you’ll want to have a lawyer look them over.
Asking the Court to Make a Decision or Take Action
During a Dissolution or Parenting Plan case, either party may file a Motion to ask the Court to make a decision or take some action. Either parent may file a Motion to ask the Court to issue certain Orders during a Parenting Plan Proceeding.
Usually, you include an Affidavit and a Brief in Support of your Motion. The Brief is where you make a legal argument on why you are asking the Court to issue a certain Order. You must base your legal argument on what the law says and the facts of your case. As an example, a Brief might say, “The Petitioner and Respondent cannot agree on regular parenting times. It is in the best interest of the child that the Court order my Interim Parenting Plan and here are the reasons why…”
The Brief will talk about facts in the Affidavit. An Affidavit is a sworn statement only about facts. You do not make an argument in an Affidavit. An Affidavit will have statements like, “I asked to have parenting time on week days. The Respondent said I could only have parenting time every other weekend.”
Figuring out what words to put in your Motion can be hard. A lawyer can help you decide what information to put in your Motion, Brief, and Affidavit. You will need to file your Motion with the Clerk of District Court in the courthouse where your case is filed. You must serve the other party with whatever you file. You can find a blank Motion Packet on this website.
When the Other Parent Doesn’t Agree
If the other parent does not agree with the Motion, they may file a Response to Motion to explain why they disagree with the Motion. In general, after a party files a Motion, the Court will schedule a hearing to hear from both parents. The Hearing will usually only be about what the parties wrote in their Motion and Response. After the Hearing, the Judge will make a decision on the Motion.
Common Temporary Orders
At the beginning of a case when the parties disagree, the Court may issue a Scheduling Order. A Scheduling Order lays out a timeline and requirements for the parties to move towards a final hearing or trial. Not all cases go to a final hearing or trial.
Sometimes parents can come to an agreement during a contested case and file the agreement with the Court to get it Ordered. The Court will often order the parents to Mediation to settle differences before the final hearing.
Mediation is often a helpful way to solve your problems out of court. The Court may order mediation more than once. Both parents are allowed to have a lawyer with them at mediation.
The mediator is the person that runs the mediation. A mediator is a trained, neutral third party who does not take sides. A mediator tries to help you and the other parent come to an agreement that you can both live with and can be filed and ordered by the court.
Important: Mediation may not be right for you if:
- There is or has been domestic violence in the relationship; or,
- One parent has physically, emotionally, or sexually abused the children.
If you don’t think mediation is right for you because of any of the above, you will need to notify the Court. To notify the Court:
- Check the Order for Mediation for guidance on what to do if mediation is not appropriate;
- Ask the Clerk of District Court or Self Help Law Center if they have a local form to ask the Court to excuse you from mediation; and/or
- File a written Motion that says why mediation is not right for you. In your Motion, you will need to refer to the specific law saying when mediation is not appropriate. You can find that law at M.C.A. § 40-4-301.
Important: Sometimes people decide to do mediation even if they or their children have experienced abuse. In these cases, each parent will need to provide written, informed consent to mediation. You can check with the Clerk of District Court or Self Help Law Center to see if they have a form for giving consent to mediation in these cases.
Interim Parenting Plan
You can ask the Court for an Interim Parenting Plan if you need a temporary parenting schedule during the Parenting Plan Proceeding. You may want an Interim Parenting Plan if:
- The children are in danger.
- You fear one parent will run away with the children.
- You and the other parent cannot agree on parenting time during the Parenting Plan Proceeding.
You can find a blank Motion Packet you may use to ask for an Interim Parenting Plan on this website.
If you have been married to your spouse for several years and need temporary financial help, you may want to ask for a Temporary Maintenance Order. A request for maintenance usually is not appropriate in a default Dissolution. If your spouse is likely to disagree with temporary maintenance, you will likely need the help of a lawyer.
Temporary Child Support
A Temporary Child Support Order will order one parent to pay child support during the Dissolution proceeding. It may be a good idea to ask for temporary child support if:
- The Court or the Montana Child Support Enforcement Division (CSED) hasn’t already established child support.
- You need money from the other parent to take care of the children.
You may ask for temporary child support by filing a Motion for Temporary Child Support with the Court or you can apply to Montana CSED and have them establish a temporary child support Order. Again, this might not be appropriate for a default Dissolution or Parenting Plan. If you have questions, talk to a lawyer.
Temporary Family Support Orders
A Judge may issue a Temporary Family Support Order dealing with all sorts of financial issues during the Dissolution Proceeding. You or the other side may request this from the Court through a Motion. This order does not replace orders for temporary maintenance or child support.
The Order may make one or both spouses use specific income to pay certain bills. For example, if one spouse still lives in the home but has trouble keeping up on the mortgage, the Court may order the other spouse to make all or part of the mortgage payments from their salary. A Temporary Family Support Order may include other bills, like:
- Car payments
- Cell phone
- Credit cards
Asking for a Temporary Family Support Order may be a good idea if:
- One spouse doesn’t earn enough to pay the marital debts without lots of financial hardship, and/or
- The spouses cannot agree about who should pay what bills.
You may find what the law says about Temporary Family Support Orders in M.C.A. §40-4-121. You will likely need help from a lawyer.
When the Other Party Won’t Follow a Court Order
Order to Show Cause
If one parent is not following the Judge’s orders during a Dissolution or Parenting Plan case, the other parent may file a Motion to Show Cause. For example, if the Court orders an Interim Parenting Plan, and the other parent is not following it, you may want to file a Motion to Show Cause.
The Motion to Show Cause asks the Court to schedule a hearing for the other parent to explain why they are not following the Judge’s orders.
To learn more, read our article about the 10 Steps to Take When the Other Parent Won’t Follow the Parenting Plan.
Important: Filing a Motion to Show Cause is a serious step to take. There are risks to filing a Motion to Show Cause. There may be other options as well. It is a good idea to talk to a lawyer before filing a Motion to Show Cause.
- The State Bar Lawyer Referral Service may provide you with contact information for attorneys who provide the type of assistance you are seeking, for a fee. You can contact the State Bar Lawyer Referral Service at (406) 449-6577 or montanabar.org.
- 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 help from MLSA, you may be able to get free legal advice from a volunteer attorney by email using Ask Karla.
- Contact your nearest Self Help Law Center for free legal information and forms.
- Download a blank Motion Packet to ask the Court to issue a temporary order.
- Download a blank Response to Motion Packet if you don’t agree with the other party’s Motion.