In Montana, the property a spouse owns is his or hers; it is not the joint property of the marital community like in community property states such as California. This means that in Montana the property a spouse brings to the marriage is his or hers and he or she can sell it without the consent of the other spouse. The other spouse has no legal interest in the other’s separate property.
However – and this is a big “however” – that doesn’t mean that property isn’t divided among spouses upon a divorce. In Montana, each spouse’s separate property is subject to “equitable division.” This basically means that a judge gets to decide how the property should be divided. There is a statute, MCA 40-4-202, and a court decision, In re Funk, that provide the factors a court considers when dividing up the property. They include the duration of the marriage; each of the parties’ age, health, occupation, amount and sources of income, vocational skills, employability, and needs; the custody of any children; future economic opportunities; and any pre-nuptial agreement.
A judge has very broad discretion to divide up the property. The Supreme Court is unlikely to overturn a county judge’s decision. This means the parties’ property is truly in the judge’s hands.
Increasingly, divorcing couples avoid the uncertainty and expense of having a judge divide the property by agreeing on their own to who gets what. Given the emotional nature of a divorce – and the high stakes for each party’s future financial security – the parties often can’t settle on their own. Increasingly, divorcing couples look to some outside help to assist in the settlement process such as a mediator. A mediator is a neutral third party trained to facilitate the settlement process. Mediation is voluntary and can be cancelled at any time. It occurs outside of the court process. Each party presents information to the mediator and the mediator tries to find the areas of agreement and disagreement. A mediator often tells the parties how a judge might rule, which can sometimes persuade a party to give up an unreasonable position. Mediation costs a fraction of paying an attorney to present the case to a judge. And, since the parties are working the division of property out themselves, they often have less hard feelings with the outcome because it was their outcome. To learn more about mediation, go to the web page for Montana Mediations.
Overstreet Law Group does not take divorce cases but can help you find a good divorce attorney. Please contact us if you need one.
(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)