The Proper Way to Record a Contest to an ID Divorce
October 17, 2018 § 2 Comments
A couple of days ago we visited the COA’s handling of the Arrington v. Arrington case dealing with the necessity to file a judgment with the clerk in order for it to take effect. [Note: The post on Arrington was moved to next month]
There’s an interesting wrinkle in that case having to do with how to make a record of an objection to the irreconcilable differences divorce.
As the COA said in ¶3: “On August 23, 2013, through an attorney, Harold filed a withdrawal of consent to the joint claim for divorce.” Only thing is, there was no Consent as that term is used in the statute. There was merely a joint complaint for divorce. Here’s how Judge Griffis’s opinion addressed it:
¶16. Now, we must determine whether Harold withdrew his consent to the joint complaint for divorce in a timely manner.
¶17. We note that section 93-5-2(3) provides:
If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without
leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto . . . .
(Emphasis added). However, this section applies only when the parties agree to an irreconcilable-differences divorce but are unable to agree upon adequate and sufficient provisions for custody or property rights and consent to allow the court to decide these specific disputed issues. Id.
¶18. Here, the parties agreed to an irreconcilable-differences divorce and incorporated an agreed-upon property settlement. They did not invoke section 93-5-2(3), and there were no issues upon which the parties did not agree. We also find no authority to expand this restriction on the withdrawal of consent outside of section 93-5-2(3). We therefore find that the consent restriction in section 93-5-2(3) does not apply here. Harold was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce.
In other words, what Harold should have done is simply file something to put the case on a contested footing. He could have filed an answer denying the complaint and withdrawing his joinder in that pleading. Or he could have, as I have often seen, filed an objection to a divorce on the ground of irreconcilable differences. By filing a pleading purporting to withdraw consent to the divorce he somewhat confused the issue since there was no consent per MCA 93-5-2(3) that could be withdrawn.
Another point you can take away is that a § 93-5-2 consent may not be withdrawn after the court has commenced any proceeding “pertaining thereto,” including the hearing of any motion or other matter. In a case of waffling clients, I have seen lawyers file a motion with the Consent asking the court to approve and accept it in advance of a full trial on the contested issues, the goal being to eliminate withdrawal or at least to make withdrawal subject to court approval.
Tagged: consent to divorce