The Law Behind a Proxy Divorce

The Law Behind a Proxy Divorce

What we call a proxy divorce is actually a legal process called a Declaration of Invalidity of Marriage. Montana uses this name to describe what its version of an annulment. Basically, this is a legal process to undo your marriage and make it like it never happens. When a judge grants a Declaration of Invalidity of Marriage, the Court reaches back in time and voids the marriage before it even starts. It is, legally speaking, like it never happened.

You can find the law that authorizes this in the Montana Code Annotated at Section 40-1-402. Click here to read the law. The statute breaks down into six parts. Part 1 describes the scenarios where a married couple would qualify for a Declaration of Invalidity of Marriage. Part 2 defines how long a couple has from the time they are married until they have to file for a Declaration of Invalidity of Marriage. Part 3 is specific to bigamous marriages. Part 4 legally establishes that children born of a marriage declared invalid are still legitimate. Part 5 grants the Court the ability to make the Declaration of Invalidity retroactive – this is the part of the law that lets the Court go back in time and undo the marriage from the very start. And finally, Part 6 tells the clerk of the court who to give notice to when a marriage is declared invalid.

If you are considering a proxy divorce (which is really a Declaration of Invalidity of Marriage) Parts 1 and 2 are probably the most interesting to you. They tell you when you qualify for an annulment, and how long you have to file for an annulment.

(1) The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(a) a party lacked capacity to consent to the marriage at the time that the marriage was entered into, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;

(b) a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time that the marriage was entered into, the other party did not know of the incapacity;

(c) a party was under 16 years of age or was 16 or 17 years of age and did not have the consent of the party’s parents or guardian or judicial approval; or

(d) the marriage is prohibited.

If you qualify for a Declaration of Invalidity of Marriage, the case must be filed within certain timelines. Those timelines are:

(a) for lack of capacity to consent because of mental incapacity or infirmity, no later than 1 year after the petitioner obtained knowledge of the described condition;

(b) for lack of capacity to consent because of the influence of alcohol, drugs, or other incapacitating substances, no later than 1 year after the petitioner obtained knowledge of the described condition;

(c) for lack of capacity to consent because of force, duress, or fraud, no later than 2 years after the petitioner obtained knowledge of the described condition;

(d) for the reason set forth in subsection (1)(b), by either party, no later than 4 years after the petitioner obtained knowledge of the described condition;

(e) for the reason set forth in subsection (1)(c), by the underaged party or the party’s parent or guardian, before the time that the underaged party reaches the age at which the party could have married without satisfying the omitted requirement.

One caveat here is that regardless of whether you meet the timeline, both spouses must be alive at the time of filing. If either spouse has passed away, the Court cannot grant a Declaration of Invalidity of Marriage.

If you’re interested to know whether you qualify for a Declaration of Invalidity of Marriage under Montana law, the best way to find out is to fill out our online questionnaire. Click here for the questionnaire. Once you complete it, your information will be reviewed by one of our attorneys who will get in touch soon.