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My brother-in-law lives in Montana with his son and the sons mother. For personal reasons he doesn't want to get married, and in part that has to do with divorce.

On the other hand, if something happened to one or the other of them, currently they would want to be able to make decisions/be able to access insurance/other benefits.

I was looking at it and it doesn't look like a common law marriage would be appropriate, as it still requires a divorce if I understand correctly.

Are there any arrangements in Montana that they could enter into where they would be able to get those same benefits as long as they are together, but are also able to dissolve with less fuss if they decide they no longer want to be together?

  • This is pretty open-ended as written. I don't think there is any kind of arrangement that conveys all the benefits of marriage, but they might be able to get a few of them piecemeal, if they can be specific about what they want. "Make decisions" - what kind of decisions? Some things like this can be achieved with a power of attorney. "Access insurance" - what kind of insurance, issued by whom, and what kind of access? It probably comes down to the terms of the policy. "Other benefits" - like what? – Nate Eldredge Feb 24 at 20:09
  • There is the possibility that they are in a common law marriage already see courts.mt.gov/forms/marriage – Dale M Feb 24 at 20:43
  • @DaleM from what I read you have to call yourself husband and wife, which they are not. – Wayne Werner Feb 24 at 21:22
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Domestic partnerships are what the kind of legal status that the question is asking about is usually called in Montana. The recognition of these relationships is ad hoc and comes at the local government level or in particular benefit plan arrangements. Montana does not have a state level statute recognizing domestic partnerships, in general and for all purposes.

At least some government agencies in Montana allows employees to designate a domestic partner for employee benefits purposes.

At least some health insurance companies in Montana also allow coverage of domestic partners.

At least one municipal government in Montana, the City of Missoula, has a domestic partnership registry, which can be used to show proof of the existence of a domestic partnership for other purposes.

Montana, like most states, allows people who are not married to enter into enforceable contracts related to economic matters in shared household, often called cohabitation agreements. So long as none of the consideration for the agreement is sex and sex in not required by the agreement or purports to be bindingly consented to in the agreement. (Cohabitation agreements that do so are called meretricious and are void as a matter of public policy because they constitute agreements to engage in illegal conduct, i.e. prostitution.)

People who are not married can also name each other as death beneficiaries of assets, in a will or trust, or as agents in powers of attorney for each other. Some employee benefit plans require that a power of attorney be in place between the parties to recognize them as domestic parters for employee benefit purposes.

Montana does recognize common law marriage, but you are correct that the legal status of a common law marriage once established, is no different than any other kind of marriage and may only be terminated by divorce. Montana does not have the equivalent of a de facto relationship statute like the ones found in Australia and Texas.

Also, Montana, like all U.S. states, is required as a matter of constitutional law to allow same sex couples to legally marry.

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