Is Montana the Wild West in Divorce Policy?

Blog host note: Having two Montana students in my Family Law course this spring semester has been extremely helpful for me to learn more about that state's views on families and their interactions with the law. As the last post considered issues surrounding the value of life in Montana, this post considers Montana's public policies on marriage. Both students, as you will read, have shown that a Christian attorney can make a tremendous difference in his or her state to help to bring about stronger families. That's what a legal education at Regent is all about.                                                                                                                                      -Lynne Marie Kohm

This guest post is from Regent Law Family Law student Esther Lines:

As a student from Montana in Family Law this semester, I was excited to get into the nitty gritty of Montana's laws. Montana citizens care deeply about family, freedom, hard work, agriculture, and the outdoors, which are values that I share. Montana is a predominantly conservative state, though interesting population dynamics in a select few larger towns have recently turned the state blue in certain elections. The tension between liberal and conservative parties has risen as more people out of state move to these more popular towns and begin to change the dynamics and values of the local people. This interesting mix of the local and the foreign, the old and the new ways, is a new challenge facing the citizens of this state. However, there is still a unifying conservative nature across the state. With this basic understanding of the conservative nature of Montana, I was expecting my deep dive into Montana law to reveal strong laws that bound husbands and wives and worked to protect the family unit. 

In 2019, however, these new dynamics changed our Family Law code and all of our reconciliation laws were repealed. See §40-3-101 through 127, Montana Code Annotated.  

Montana law has seemingly thrown up its hands and embraced the attitude of the "wild west" in its divorce policy. Montana is a no-fault divorce state, with bare minimum grounds for proving the marriage is "irretrievably broken." The burden of proof is light, as the Montana Code Annotated states in §40-4-104, only a showing that either the parties have lived separately for more than 180 days or a showing of "marital discord that adversely affects the attitude of one of the parties toward the marriage" is enough. Seriously? My state legislature really thinks the best thing for its citizens is to allow for divorce when only one of the parties does not have a good attitude toward the marriage anymore? My first reaction was deep disappointment, thinking Montana had given up its familial values and morals. But then, with the help of friends around me, I began to realize that maybe Montana's concern for the complete freedom of its citizens to do as they please is not such a bad thing and actually benefits lawyers who wish to promote genuine familial love and commitment. And here's why: you cannot legislate morality, and less regulation promotes honest  representation and Christian responsibility among attorneys. 

The decision to be committed to one's spouse must come from within, and no amount of legislation can force a person to love the Lord's instruction and the other party to the marriage more than themselves and their own desires. When these values cannot be enforced by legislation in the first place, the potential cons of strong government regulation against divorce can potentially outweigh the pros. When two parties have decided to dissolve the marriage, human nature tends to show that they will get what they want. This landscape encourages family law attorneys to argue for the dissolution of the marriage, whether or not the marital discord really meets the standards for divorce the law requires. When you combine stringent regulation of marriage with stubborn human nature, the incentive and likelihood that lawyers will engage in illusory arguments to satisfy the requirements for divorce rise. However, by leaving the door open for citizens to leave a marriage when they have decided they are going to, the lawyers representing them can now satisfy the law's requirements without doing argumentative gymnastics to meet the standards of more strict divorce jurisdictions. 

Additionally, Montana's easy divorce paradigm has created the opportunity for Christian attorneys to "cowboy up" and actively encourage clients to consider alternatives to divorce, knowing the law is no deterrent. There is a need for gospel witness in this arena, and Christians need to step up and counsel their clients in the instruction of the Lord where appropriate. Montana divorce law is no threat to marriages so long as we have true Christian attorneys willing to engage with their clients about the harms of divorce and the beauty of selfless, committed love. 

Montana may be the wild west, but that does not mean Montana is not ripe for the growth of Christian attorneys who can counsel their clients with the influences of goodness, truth, and beauty through divorce decisions. That will restore families.