When a couple gets divorced, everything from the marriage has to be sorted out by the courts so the parties can have separate lives. One universal issue the court has to handle is property division, specifically Montana property division.
No divorcing couple should go to court without retaining a licensed Family Law attorney. Property division laws can be confusing, personal situations can be more complicated than a non-lawyer realizes and lawyers have the proper training and experience to tell the judge what a divorcing spouse wants or needs from the property division.
Property Division Divorce Laws in Montana
The purpose of Montana property division laws is to make sure that marital property is allocated to each spouse equitably. Montana marital property is divided under the considerations of Montana Code §40-4-202 but the trial court judge receives great discretion when converting Montana marital property into separate Montana divorce property.
Montana is an equitable distribution state. This means that typically with regard to Montana divorce assets, anything the spouses had before a marriage usually will not be included in Montana divorce assets or Montana divorce property.
However, Montana Code §40-4-202(1) allows the court to include separate & non-marital property in property division to further the aims of equitable distribution between the spouses.
What is considered Marital and Non-Marital Property?
- Marital property is property either spouse acquired during the marriage as well as separate items brought into a marriage and converted into marital property.
- Non-marital property is property that each spouse had before the marriage or acquired individually without including it into the marital property.
The court will decide which property will be included in the property division as well as whether particular pieces of property are marital or non-marital. The distinction may become irrelevant if the judge feels non-marital property should be included into property distribution.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property.
Under Montana Code §40-4-202(1), the court considers a number of factors in dividing assets and debt. Some of these are:
- The marriage's length
- The parties' age & health
- The parties' earning capacity
- The parties' circumstances & needs
- Any prior marriages of the parties
Using statutory factors, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equitably among the
- Example 1: A joint savings account has $5,000. The court would most likely award a portion to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount may be divided by each spouse's contribution or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided based on the
duration of the marriage at the time the benefits accrued, looking at the
present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 10 of those years. The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it.
- Vehicles: Divided based on the values at
the date determined by the court. May be
sold or given to a spouse outright.
- Example 1: A spouse owns a motorcycle. The motorcycle may be sold with the proceeds to be given to a poorer spouse or the motorcycle may be given to a spouse.
- Example 2: A car has a shared title. The car may be sold with the proceeds going to each spouse or the car may be given to a poorer spouse.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer provided health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time and/or award money to the ailing spouse to get new coverage.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. If marital income was used to make payments on the insurance, the spouse may be entitled to a portion of the benefits.
Settling Disputes in a Divorce Case with Property and Asset Division
Under Montana case law, property division awards are final and can not be modified by the court. However, if a spouse is being uncooperative the other may go back to court to get the order enforced by the court.
Generally, the trial court's determinations will not be changed by a higher court unless the division was clearly unjust.
Help From a Montana Property Divorce Lawyer
It can not be stressed enough that retaining a Montana property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.