Legal Question in Family Law in Montana

Re: Common Law Marriage

Your message was not forwarded to me until 4/2/01, so perhaps my response comes too late to be useful.

Montana recognizes common law marriage as a valid marriage. Because it is a valid marriage, the spouses have the same legal rights, protections, and obligations as if they had been married by a justice of the peace or a minister in a traditional ceremony -- rights to the marital estate, obligations for marital debts, and the requirement that the marriage be dissolved in the district court.

The problem is making certain that a common law marriage exists. If you read Montana Supreme Court cases on common law marriage, you will see that there is no black and white rule to make this an easy decision. If the parties do not agree that a marriage exists, the judge listens to testimony and, based on the unique facts of your case, makes a decision whether a common law marriage exists. Even if the court finds that a marriage did not exist, you might still have some spousal rights as a putative spouse.

Since this is your child's home state, the court has ongoing jurisdiction over parenting issues. Even though the court ruled on parenting issues last year, ongoing jurisdiction allows the court to reopen parenting issues. You can always seek a modification of the existing parenting plan if you meet the statutory threshold. The overriding requirement is that the modification is in the child's best interest; the statutory requirements are too numerous and detailed to set out here.

It sounds like you didn't retain a lawyer last time and it didn't work out as well as it could have so, this time, I encourage you to see an attorney to at least find out what your options are. Because common law marriage can be difficult to prove, and because parenting issues impact the child in ways the parents often don't see during dissolution, you should at least consult an attorney and probably retain counsel.