House bill NO. 237

INTRODUCED BY B. Phalen, B. Ler

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING LAWS RELATING TO the DISSOLUTION OF MARRIAGE IN CASES OF PHYSICAL ABUSE or adultery; ALLOWING AN AWARD OF ATTORNEY FEES AND COSTS WHEN PHYSICAL ABUSE or adultery SUBSTANTIALLY CONTRIBUTED TO THE IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE; REQUIRING THE COURT TO CONSIDER PHYSICAL ABUSE OR ADULTERY THAT SUBSTANTIALLY CONTRIBUTED TO THE IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE WHEN APPORTIONING PROPERTY OR AWARDING MAINTENANCE; AMENDING SECTIONS 40-4-110, 40-4-202, AND 40-4-203, MCA; and PROVIDING AN IMMEDIATE EFFECTIVE DATE and A RETROACTIVE APPLICABILITY DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 40-4-110, MCA, is amended to read:

"40-4-110. Costs -- professional fees. (1) The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the professional, who may enforce the order in the professional's name.

(2) The purpose of this section subsection (1) is to ensure that both parties have timely and equitable access to marital financial resources for costs incurred before, during, and after a proceeding under chapters 1 and 4.

(3) In a case in which the court finds physical abuse or adultery substantially contributed to the irretrievable breakdown of the marriage, the court may order the offending party to pay a reasonable amount for the cost to the other party of maintaining and defending any proceeding under this chapter and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceedings or after entry of judgment. The court may order that the amount be paid directly to the professional, who may enforce the order in the professional's name."

Section 2. Section 40-4-202, MCA, is amended to read:

"40-4-202. Division of property. (1) In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title to the property and assets is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, physical abuse or adultery that substantially contributed to the irretrievable breakdown of the marriage, and the opportunity of each for future acquisition of capital assets and income. Physical abuse or adultery alone may justify disproportionate apportionment. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage, property acquired by gift, bequest, devise, or descent, property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent, the increased value of property acquired prior to marriage, and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which the contributions have facilitated the maintenance of the property; and

(2) In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.

(3) Each spouse is considered to have a common ownership in marital property that vests immediately preceding the entry of the decree of dissolution or declaration of invalidity. The extent of the vested interest must be determined and made final by the court pursuant to this section.

(4) The division and apportionment of marital property caused by or incident to a decree of dissolution, a decree of legal separation, or a declaration of invalidity is not a sale, exchange, transfer, or disposition of or dealing in property but is a division of the common ownership of the parties for purposes of:

(a) the property laws of this state;

(b) the income tax laws of this state; and

(5) Premarital agreements must be enforced as provided in Title 40, chapter 2, part 6.

(6) The court shall seal any qualified domestic relations order, as defined in section 414(p) of the Internal Revenue Code, 26 U.S.C. 414(p), that is issued under this part except for access by the pension plan administrator of the plan for which benefits are being distributed by the order, the child support enforcement division, the parties, and each party's counsel of record."

Section 3. Section 40-4-203, MCA, is amended to read:

"40-4-203. Maintenance. (1) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

(a) lacks sufficient property to provide for the spouse's reasonable needs; and

(b) is unable to be self-supporting through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

(2) The maintenance order must be in amounts and for periods of time that the court considers just, without regard to marital misconduct, and after considering all relevant facts, including:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to that party, and the party's ability to meet the party's needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(d) the duration of the marriage;

(e) physical abuse or adultery that substantially contributed to the irretrievable breakdown of the marriage;

(e)(f) the age and the physical and emotional condition of the spouse seeking maintenance; and

(f)(g) the ability of the spouse from whom maintenance is sought to meet the spouse's own needs while meeting those of the spouse seeking maintenance.

(3) The court shall seal any qualified domestic relations order, as defined in section 414(p) of the Internal Revenue Code, 26 U.S.C. 414(p), that is issued under this part except for access by the pension plan administrator of the plan for which benefits are being distributed by the order, the child support enforcement division, the parties, and each party's counsel of record."

NEW SECTION. Section 4. Saving clause. [This act] does not affect proceedings that were begun before [the effective date of this act] in which the court has held a substantive hearing on the division of property or maintenance before [the effective date of this act] or in which the court has entered a final order dividing property or awarding maintenance before [the effective date of this act] without a hearing.

NEW SECTION. Section 5. Effective date. [This act] is effective on passage and approval.

NEW SECTION. Section 6. Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to all actions that were filed before [the effective date of this act] but in which the court has not held a substantive hearing on the division of property or maintenance or in which the court has not issued a final order dividing property or awarding maintenance without a hearing.