Senate Bill No. 33

Introduced By halligan

A Bill for an Act entitled: "An Act allowing the issuance of a temporary family support order to ensure the payment of periodic marital estate liabilities out of the parties' income or marital assets during the pendency of marriage dissolution proceedings; and amending section 40-4-121, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 40-4-121, MCA, is amended to read:

"40-4-121.   Temporary order or temporary injunction. (1) In a proceeding for dissolution of marriage or for legal separation or in a proceeding for disposition of property or for maintenance or support following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance or, temporary support of a child of the marriage entitled to support, or a temporary family support order. The motion must be accompanied by an affidavit setting forth the factual basis for the motion and, the amounts requested, a list of marital estate liabilities, a statement of sources of income of the parties and of a child of the marriage entitled to support, and, in the case of a motion for a temporary family support order, a proposal designating the party responsible for paying each liability. If ordered by a court, a temporary family support order must, without prejudice, direct one or both parties to pay, out of certain income sources, liabilities of the marital estate during the pendency of the action, including maintenance liabilities for a party or support of a child of the marriage entitled to support. If income sources are insufficient to meet the marital estate periodic liabilities, the temporary family support order may direct that certain liabilities be paid from assets of the marital estate. At any time during the proceedings, the court may order any temporary family support payments to be designated as temporary maintenance, temporary child support, or partial property distribution, retroactive to the date of the motion for a temporary family support order.

(2)  As a part of a motion for temporary maintenance or, temporary support of a child, or a temporary family support order or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction for any of the following relief:

(a)  restraining any person from transferring, encumbering, concealing, or otherwise disposing of any property, except in the usual course of business or for the necessities of life, and, if so restrained, requiring the person to notify the moving party of any proposed extraordinary expenditures made after the order is issued;

(b)  enjoining a party from molesting or disturbing the peace of the other party or of any family member or from stalking, as defined in 45-5-220;

(c)  excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result;

(d)  enjoining a party from removing a child from the jurisdiction of the court;

(e)  ordering a party to complete counseling, including alcohol or chemical dependency counseling or treatment;

(f)  providing other injunctive relief proper in the circumstances; and

(g)  providing additional relief available under Title 40, chapter 15.

(3)  A person may seek the relief provided for in subsection (2) without filing a petition under this part for a dissolution of marriage or legal separation by filing a verified petition  requesting relief under Title 27, chapter 19, part 3. Any temporary injunction entered under this subsection must be for a fixed period of time, not to exceed 1 year, and may be modified as provided in Title 27, chapter 19, part 4, and 40-4-208, as appropriate.

(4)  The court may issue a temporary restraining order for a period not to exceed 20 days without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no an order is not issued until the time for responding has elapsed.

(5)  A response may be filed within 20 days after service of notice of motion or at the time specified in the temporary restraining order.

(6)  At the time of the hearing, the court shall determine whether good cause exists for the injunction to continue for 1 year.

(7)  On the basis of the showing made and in conformity with 40-4-203 and 40-4-204, the court may issue a temporary injunction and an order for temporary maintenance or, temporary child support, or temporary family support in amounts and on terms just and proper in the circumstance.

(8)  A temporary order or injunction, entered pursuant to Title 40, chapter 15, or this section:

(a)  may be revoked or modified on a showing by affidavit of the facts necessary to revocation or modification of a final decree under 40-4-208;

(b)  terminates upon order of the court or when the petition is voluntarily dismissed and, in the case of a temporary family support order, upon entry of the decree of dissolution; and

(c)  when issued under this section, must conspicuously bear the following: "Violation of this order is a criminal offense under 45-5-220 or 45-5-626."

(9)  When the petitioner has fled the parties' residence, notice of the petitioner's new residence must be withheld except by order of the court for good cause shown."