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Montana Postnuptial Agreement

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Montana Postnuptial Agreement

Updated January 23, 2023

A Montana postnuptial agreement is a contract used by couples to establish rights and responsibilities for specific property if the marriage ends in divorce or death. Postnuptial agreements are signed after the couple is already married; in some cases, this happens a few months after a marriage ceremony but can also occur years later. This distinguishes them from prenuptial agreements (commonly called “prenups”), which are signed before a marriage begins.

However, both postnuptial and prenuptial agreements allow couples to decide how they want marital assets to be distributed ahead of time, rather than leaving the decisions entirely up to a judge.

Signing Requirements (Mont. Code Ann. § 40-2-312) – All contracts for marriage settlements must be in writing and notarized.

Laws

Confidential Relationship: Montana law recognizes both “postnuptial agreements” and “separation agreements.” Postnuptial agreements are only available to couples “occupying confidential relations with each other, meaning couples not intending to divorce or those in a period of “reconciliation.” (Mont. Code Ann. § 40-2-301)

Separation Agreements: Separation agreements are made by couples planning to get divorced and are governed by Mont. Code Ann. § 40-4-201.

Unconscionability: Separation agreements are void if unconscionable. In re Marriage of Myers (1984).

 

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