Montana Code Annotated

Mont. Code Ann. § 40-4-201 (2026)

Separation Agreement

✓ current as of May 2026

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TITLE 40. FAMILY LAW

CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT

Part 2. Support, Custody, Visitation, and Related Provisions

Separation Agreement

40-4-201. Separation agreement. (1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, parenting, and parental contact with their children. In cases in which children are involved, the separation agreement may contain a parenting plan as required in 40-4-234.

(2) Subject to subsection (7), in a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, parenting, and parental contact with children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

(3) If the court finds the separation agreement unconscionable, it may request that the parties submit a revised separation agreement or it may make orders for the disposition of property, maintenance, and support.

(4) If the court finds that the separation agreement is not unconscionable as to disposition of property or maintenance and not unsatisfactory as to support:

(a) unless the separation agreement provides to the contrary, its terms must be set forth in the decree of dissolution or legal separation and the parties ordered to perform them; or

(b) if the separation agreement provides that its terms may not be set forth in the decree, the decree must identify the separation agreement and state that the court has found the terms not unconscionable.

(5) Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.

(6) Except as provided in subsection (7) and except for terms concerning the support, parenting, or parental contact with the children, the decree may expressly preclude or limit modification of terms set forth in the decree if provided for in the separation agreement. Otherwise, terms of a separation agreement set forth in the decree are automatically modified by modification of the decree.

(7) The decree may be modified, as provided in 40-4-251 through 40-4-258, for failure to disclose assets and liabilities.

(8) 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.

History: En. 48-320 by Sec. 20, Ch. 536, L. 1975; R.C.M. 1947, 48-320; amd. Sec. 9, Ch. 326, L. 1997; amd. Sec. 11, Ch. 343, L. 1997; amd. Sec. 3, Ch. 88, L. 2013.

Notes of Decisions

Cited in 107 cases (9 in the last 5 years), 1979–2025 · leading case: In Re the Marriage of Stone, 908 P.2d 670 (Mont. 1995).

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In Re the Marriage of Stone, 908 P.2d 670 (Mont. 1995). · cites it 50× “In April of 1985, Kenneth and Barbara entered into a property settlement agreement, pursuant to § 40-4-201, MCA. The agreement divided the marital estate and provided that Kenneth would pay maintenance to Barbara.”

In Re the Marriage of Simms, 871 P.2d 899 (Mont. 1994). · cites it 31× “Section 40-4-201, MCA, allows only one sort of marital settlement agreement (referred to in the statute and in this opinion as a separation agreement), and that is one which is reduced to writing.”

Hadford v. Hadford, 633 P.2d 1181 (Mont. 1981). · cites it 29× “Under the Uniform Marriage and Divorce Act, section 40-4-201(2), MCA, it was the duty of the court to inquire into the conscionability of the property settlement before it was approved, or it was the duty of the wife to ask the court to inquire into the conscionability of the…”

In Re the Marriage of Lorge, 675 P.2d 115 (Mont. 1984). · cites it 37× “Section 40-4-201(2), MCA imposes a duty upon the court to inquire into the conscionability of the property settlement agreement before it is approved: "In a proceeding for dissolution of marriage .”

Marriage of Florian & Charlene Co, 2008 MT 28 (Mont. 2008). · cites it 22× “Likewise, the separation agreement’s provisions concerning its tax consequences reiterate that only the provisions in the maintenance section—monthly payments, health insurance, and payments on one particular credit card—constitute maintenance.”

In Re the Marriage of Pearson, 1998 MT 236 (Mont. 1998). · cites it 14× “ended the Agreement to fully and finally settle all financial rights, duties, and obligations; (2) that the parties released and discharged each other from further obligations; (3) that neither party was entitled to maintenance; (4) that the Agreement was not subject to…”

In Re the Marriage of Mease, 2004 MT 59 (Mont. 2004). · cites it 8× “2d 590, 593 ; § 40-4-201(5), MCA. Such agreements are interpreted the same as any other contract in that plain language controls.”

Harris v. Harris, 616 P.2d 1099 (Mont. 1980). · cites it 18× “Section 40-4-201(1), MCA provides the procedure by which parties to a marriage can enter into a written agreement setting forth their respective rights and obligations upon termination of their marriage: "Separation agreement.”

In Re the Marriage of Killpack, 2004 MT 55 (Mont. 2004). · cites it 12× “Settlement *396 agreements are governed by § 40-4-201(1), MCA, which provides in relevant part: To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written…”

In Re the Marriage of Miller, 777 P.2d 319 (Mont. 1989). · cites it 16× “Did the District Court err in applying the "not unconscionable" standard of § 40-4-201, MCA, instead of the "equitable" standard under § 40-4-202, MCA, for division of property by the court where the parties had no agreement on division of property? 2.”

Marriage of Heath v. Heath, 901 P.2d 590 (Mont. 1995). · cites it 14× “Karen and Gregory voluntarily entered into a Custody, Support and Property Settlement Agreement, as provided by § 40-4-201(1), MCA. The agreement was not found to be unconscionable and was incorporated into the parties' final dissolution decree.”

In Re the Marriage of Blankenship, 682 P.2d 1354 (Mont. 1984). · cites it 9× “On the one hand, Section 40-4-201, MCA, provides for parties to a marriage to enter into a *35 property settlement agreement dividing their property.”

Show all 107 citing cases →

— Mont. Code Ann. § 40-4-201(1) — 23 cases

Harris v. Harris, 616 P.2d 1099 (Mont. 1980). “Section 40-4-201(1), MCA provides the procedure by which parties to a marriage can enter into a written agreement setting forth their respective rights and obligations upon termination of their marriage: "Separation agreement.”

In Re the Marriage of Killpack, 2004 MT 55 (Mont. 2004). “Settlement *396 agreements are governed by § 40-4-201(1), MCA, which provides in relevant part: To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written…”

In Re the Marriage of McLean, 849 P.2d 1012 (Mont. 1993).

In Re the Marriage of Gorton, 2008 MT 123 (Mont. 2008).

In Re the Marriage of Simms, 871 P.2d 899 (Mont. 1994). “Section 40-4-201, MCA, allows only one sort of marital settlement agreement (referred to in the statute and in this opinion as a separation agreement), and that is one which is reduced to writing.”

— Mont. Code Ann. § 40-4-201(1)(a) — 1 case

In Re the Marriage of Spence, 849 P.2d 161 (Mont. 1993).

— Mont. Code Ann. § 40-4-201(2) — 35 cases

Hadford v. Hadford, 633 P.2d 1181 (Mont. 1981). “Under the Uniform Marriage and Divorce Act, section 40-4-201(2), MCA, it was the duty of the court to inquire into the conscionability of the property settlement before it was approved, or it was the duty of the wife to ask the court to inquire into the conscionability of the…”

In Re the Marriage of Stone, 908 P.2d 670 (Mont. 1995). “In April of 1985, Kenneth and Barbara entered into a property settlement agreement, pursuant to § 40-4-201, MCA. The agreement divided the marital estate and provided that Kenneth would pay maintenance to Barbara.”

In Re the Marriage of Syverson, 931 P.2d 691 (Mont. 1997).

In Re the Marriage of Mitchell, 746 P.2d 598 (Mont. 1987).

— Mont. Code Ann. § 40-4-201(3) — 10 cases

In Re the Marriage of Laskey, 829 P.2d 935 (Mont. 1992).

In Re the Marriage of Blankenship, 682 P.2d 1354 (Mont. 1984). “On the one hand, Section 40-4-201, MCA, provides for parties to a marriage to enter into a *35 property settlement agreement dividing their property.”

In re the Marriage of Franks, 909 P.2d 712 (Mont. 1996).

In Re Marriage of Bukacek, 907 P.2d 931 (Mont. 1995).

Marriage of Woodford, 839 P.2d 574 (Mont. 1992).

— Mont. Code Ann. § 40-4-201(4) — 3 cases

In Re the Marriage of Lorge, 675 P.2d 115 (Mont. 1984). “Section 40-4-201(2), MCA imposes a duty upon the court to inquire into the conscionability of the property settlement agreement before it is approved: "In a proceeding for dissolution of marriage .”

Marriage of Heath v. Heath, 901 P.2d 590 (Mont. 1995). “Karen and Gregory voluntarily entered into a Custody, Support and Property Settlement Agreement, as provided by § 40-4-201(1), MCA. The agreement was not found to be unconscionable and was incorporated into the parties' final dissolution decree.”

— Mont. Code Ann. § 40-4-201(4)(a) — 2 cases

Marriage of Wagenman, 2016 MT 176 (Mont. 2016).

Smith v. Barger, 2012 MT 225N (Mont. 2012).

— Mont. Code Ann. § 40-4-201(4)(b) — 1 case

— Mont. Code Ann. § 40-4-201(5) — 22 cases

In Re the Marriage of Mease, 2004 MT 59 (Mont. 2004). “2d 590, 593 ; § 40-4-201(5), MCA. Such agreements are interpreted the same as any other contract in that plain language controls.”

In Re the Marriage of Oehlke, 2002 MT 79 (Mont. 2002).

In Re the Marriage of McKeon, 826 P.2d 537 (Mont. 1992).

— Mont. Code Ann. § 40-4-201(6) — 19 cases

Marriage of Florian & Charlene Co, 2008 MT 28 (Mont. 2008). “Likewise, the separation agreement’s provisions concerning its tax consequences reiterate that only the provisions in the maintenance section—monthly payments, health insurance, and payments on one particular credit card—constitute maintenance.”

In Re the Marriage of Pearson, 1998 MT 236 (Mont. 1998). “ended the Agreement to fully and finally settle all financial rights, duties, and obligations; (2) that the parties released and discharged each other from further obligations; (3) that neither party was entitled to maintenance; (4) that the Agreement was not subject to…”

In Re the Marriage of Gingerich, 887 P.2d 714 (Mont. 1994).

In Re the Marriage of Bolstad, 660 P.2d 95 (Mont. 1983).

In re Simpson, 430 P.3d 999 (Mont. 2018).

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