Montana Divorce Start Your Divorce Find Professionals Montana Articles Divorce Facts Divorce Grounds Residency Divorce Laws Mediation/Counseling Divorce Process Legal Separation Annulments Property Division Alimony Child Custody Child Support Divorce Forms Process Service Grandparent Rights Forum Montana Products Divorce by County
Montana Property Division
Property Distribution Laws in Montana
In Montana, the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the District Court within the Judgment of Divorce. The court encourages spouses to come to an agreement on their own regarding marital property.
Montana requires an equitable division of property, and all property is subject to distribution. While equitable implies fair, it does not necessarily mean equal. If the court must intervene, it takes several factors into account. Considerations include, but are not limited to, alimony, earning capacity of both spouses, length of the marriage, contributions of the homemaker, if applicable, and custody arrangements, debts and age.
Factors in Equitable Distribution
In Montana, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award of the Circuit Court as part of the Decree of Dissolution of Marriage.
According to Montana Code - Section 40 - Titles: 4-202, the court, in dividing property, considers:
The court also considers:
Marital Property vs. Separate Property
According to Montana Statutes - Title 30 - Chapter 452 - 330, marital property can be defined as all property acquired by either spouse subsequent to the marriage except:
Valuing and Dividing Property
First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable fashion.
The Marital Home
In Montana, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.
From there, couples choose one of three options to divide the equity:
Pensions and Retirement Accounts
In Montana, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.
Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
In Montana, the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
In Montana, if spouses share in each other’s retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.
Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Established in 1996
© 1996 - 2021 MH Sub I, LLC dba Divorce Source. All Rights Reserved.