Mont. Code Ann. » TITLE 40. FAMILY LAW · CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT · Part 2. Support, Custody, Visitation, and Related Provisions
Montana Code Annotated

Mont. Code Ann. § 40-4-202 (2026)

Division Of Property

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 40
  3. CHAPTER 4
  4. Part 2
  5. 40-4-202 Division of property

TITLE 40. FAMILY LAW

CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT

Part 2. Support, Custody, Visitation, and Related Provisions

Division Of Property

40-4-202. Division of property. (1) In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title to the property and assets is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage, property acquired by gift, bequest, devise, or descent, property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent, the increased value of property acquired prior to marriage, and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker;

(b) the extent to which the contributions have facilitated the maintenance of the property; and

(c) whether or not the property division serves as an alternative to maintenance arrangements.

(2) In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties.

(3) Each spouse is considered to have a common ownership in marital property that vests immediately preceding the entry of the decree of dissolution or declaration of invalidity. The extent of the vested interest must be determined and made final by the court pursuant to this section.

(4) The division and apportionment of marital property caused by or incident to a decree of dissolution, a decree of legal separation, or a declaration of invalidity is not a sale, exchange, transfer, or disposition of or dealing in property but is a division of the common ownership of the parties for purposes of:

(a) the property laws of this state;

(b) the income tax laws of this state; and

(c) the federal income tax laws.

(5) Premarital agreements must be enforced as provided in Title 40, chapter 2, part 6.

(6) The court shall seal any qualified domestic relations order, as defined in section 414(p) of the Internal Revenue Code, 26 U.S.C. 414(p), that is issued under this part except for access by the pension plan administrator of the plan for which benefits are being distributed by the order, the child support enforcement division, the parties, and each party's counsel of record.

History: En. 48-321 by Sec. 21, Ch. 536, L. 1975; R.C.M. 1947, 48-321; amd. Sec. 1, Ch. 613, L. 1983; amd. Sec. 13, Ch. 189, L. 1987; amd. Sec. 4, Ch. 88, L. 2013.

Notes of Decisions
Cited in 474 cases (34 in the last 5 years), 1979–2026 · leading case: In Re the Marriage of Bartsch, 2007 MT 136 (Mont. 2007).
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In Re the Marriage of Bartsch, 2007 MT 136 (Mont. 2007). · cites it 78× “Additionally, we reversed and remanded to the District Court for findings of fact, considering the factors listed in § 40-4-202, MCA, regarding distribution of the marital estate.”
In Re the Marriage of Smith, 871 P.2d 884 (Mont. 1994). · cites it 99× “We reverse the District Court on this issue and remand for a determination of the value of the estate in accordance with § 40-4-202, MCA. ISSUE 4 Did the District Court err when it awarded Lisa $500,000 in cash? In April 1991, several months after the parties separated, Jeff's…”
In Re the Marriage of Funk, 2012 MT 14 (Mont. 2012). · cites it 39× “The court further instructed Kevin to pay June $500 per month in maintenance, retroactive to March 2009, for a period of five years or until June received her entire award.”
Hutchins v. Hutchins, 430 P.3d 502 (Mont. 2018). · cites it 40× “¶ 7 Section 40-4-202, MCA, governs the distribution of a marital estate.”
Marriage of Mahlum & Elder, 2020 MT 91 (Mont. 2020). · cites it 57× “Upon the threshold conclusion that Sam’s disability benefits were essentially no different than his normal service retirement benefits, the court reasoned that: (1) his 44 “disability income represent[ed] a replacement of the income that [he] was earning” during the marriage;…”
In Re the Marriage of Herron, 608 P.2d 97 (Mont. 1980). · cites it 28× “The basis for the error in the distribution of the Herrons' property is the failure of the District Court to follow the provisions of section 40-4-202, MCA. Section 40-4-202(1) directs the District Court to apportion marital assets ".”
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). · cites it 48× “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
In Re Marriage of Engen, 1998 MT 153 (Mont. 1998). · cites it 28× “finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title *305 thereto is in the name of the husband or wife or both.”
In Re the Marriage of Williams, 2009 MT 282 (Mont. 2009). · cites it 31× “” Section 40-4-202(1), MCA. The district court must consider many factors in its apportionment, including the duration of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of…”
Marriage of Frank, 2022 MT 179 (Mont. 2022). · cites it 28× “¶35 Section 40-4-202, MCA, vests the district court with broad discretion to equitably apportion the marital estate in a manner equitable to each party according to the circumstances of each case.”
In Re the Marriage of Simms, 871 P.2d 899 (Mont. 1994). · cites it 42× “(The district court erred in applying the "not unconscionable" standard where the parties had no agreement on division of property and, instead, should have applied the "equitable apportionment" standard required by § 40-4-202, MCA.) In that respect, Judge Green was not in error…”
Marriage of Richards v. Trusler, 2015 MT 314 (Mont. 2015). · cites it 26× “4 ISSUE ¶10 A restatement of the issue on appeal is: Did the District Court err and/or abuse its discretion in apportioning the marital estate? STANDARD OF REVIEW ¶11 The distribution of marital property in a dissolution proceeding is governed by § 40-4-202, MCA, under which a…”
Show all 474 citing cases →
— Mont. Code Ann. § 40-4-202(1) — 186 cases
Marriage of Mahlum & Elder, 2020 MT 91 (Mont. 2020). “Upon the threshold conclusion that Sam’s disability benefits were essentially no different than his normal service retirement benefits, the court reasoned that: (1) his 44 “disability income represent[ed] a replacement of the income that [he] was earning” during the marriage;…”
Hutchins v. Hutchins, 430 P.3d 502 (Mont. 2018). “¶ 7 Section 40-4-202, MCA, governs the distribution of a marital estate.”
In Re the Marriage of Herron, 608 P.2d 97 (Mont. 1980). “The basis for the error in the distribution of the Herrons' property is the failure of the District Court to follow the provisions of section 40-4-202, MCA. Section 40-4-202(1) directs the District Court to apportion marital assets ".”
In Re the Marriage of Williams, 2009 MT 282 (Mont. 2009). “” Section 40-4-202(1), MCA. The district court must consider many factors in its apportionment, including the duration of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of…”
Marriage of Richards v. Trusler, 2015 MT 314 (Mont. 2015). “4 ISSUE ¶10 A restatement of the issue on appeal is: Did the District Court err and/or abuse its discretion in apportioning the marital estate? STANDARD OF REVIEW ¶11 The distribution of marital property in a dissolution proceeding is governed by § 40-4-202, MCA, under which a…”
— Mont. Code Ann. § 40-4-202(1)(a) — 14 cases
Hutchins v. Hutchins, 430 P.3d 502 (Mont. 2018). “¶ 7 Section 40-4-202, MCA, governs the distribution of a marital estate.”
Marriage of Hollamon, 2018 MT 37 (Mont. 2018).
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
Marriage of Dahm, 2006 MT 230 (Mont. 2006).
In Re the Marriage of Taylor, 848 P.2d 478 (Mont. 1993).
— Mont. Code Ann. § 40-4-202(1)(b) — 4 cases
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
In Re the Marriage of Hanni, 2000 MT 59 (Mont. 2000).
Holston v. Holston, 668 P.2d 1048 (Mont. 1983).
In Re the Marriage of Howard, 2008 MT 351 (Mont. 2008).
— Mont. Code Ann. § 40-4-202(1)(c) — 2 cases
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
In Re the Marriage of Taylor, 848 P.2d 478 (Mont. 1993).
— Mont. Code Ann. § 40-4-202(2) — 7 cases
In Re the Marriage of Smith, 871 P.2d 884 (Mont. 1994). “We reverse the District Court on this issue and remand for a determination of the value of the estate in accordance with § 40-4-202, MCA. ISSUE 4 Did the District Court err when it awarded Lisa $500,000 in cash? In April 1991, several months after the parties separated, Jeff's…”
In Re the Marriage of Haberkern, 2004 MT 29 (Mont. 2004).
In Re the Marriage of Hurley, 721 P.2d 1279 (Mont. 1986).
In Re the Marriage of Alt, 708 P.2d 258 (Mont. 1985).
Marriage of Wolfe v. Wolfe, 659 P.2d 259 (Mont. 1983).
— Mont. Code Ann. § 40-4-202(2)(a)(ii) — 1 case
Marriage of Magill, 2002 MT 128N (Mont. 2002).
— Mont. Code Ann. § 40-4-202(3) — 1 case
Turville v. Cornerstone Mortg. Co. (In Re Turville), 363 B.R. 167 (Bankr. D. Mont. 2007).
— Mont. Code Ann. § 40-4-202(l) — 3 cases
Marriage of Hamilton (Mont. 1995).
Marriage of Reese (Mont. 1994).
Marriage of Fackler (Mont. 1995).
— Mont. Code Ann. § 40-4-202(l)(a) — 14 cases
In Re the Marriage of Funk, 2012 MT 14 (Mont. 2012). “The court further instructed Kevin to pay June $500 per month in maintenance, retroactive to March 2009, for a period of five years or until June received her entire award.”
In Re the Marriage of Williams, 2009 MT 282 (Mont. 2009). “” Section 40-4-202(1), MCA. The district court must consider many factors in its apportionment, including the duration of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of…”
In Re the Marriage of Herrera, 2004 MT 40 (Mont. 2004).
In Re the Marriage of Caras, 2012 MT 25 (Mont. 2012).
In Re the Marriage of Tummarello, 2012 MT 18 (Mont. 2012).
— Mont. Code Ann. § 40-4-202(l)(b) — 5 cases
In Re the Marriage of Funk, 2012 MT 14 (Mont. 2012). “The court further instructed Kevin to pay June $500 per month in maintenance, retroactive to March 2009, for a period of five years or until June received her entire award.”
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
In Re the Marriage of Luisi, 756 P.2d 456 (Mont. 1988).
In Re the Marriage of McFarland, 783 P.2d 409 (Mont. 1989).
In Re the Marriage of Howard, 2008 MT 351 (Mont. 2008).
— Mont. Code Ann. § 40-4-202(l)(c) — 8 cases
In Re the Marriage of Tummarello, 2012 MT 18 (Mont. 2012).
In Re the Marriage of Williams, 2009 MT 282 (Mont. 2009). “” Section 40-4-202(1), MCA. The district court must consider many factors in its apportionment, including the duration of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of…”
In Re Marriage of Foreman, 1999 MT 89 (Mont. 1999). “There, we stated the general rule "that only a vested remainder may be considered in evaluating the opportunity for future acquisition of assets or income under § 40-4-202, MCA, and that even where the interest is vested, the intent of the testator can render it contingent.”
In Re the Marriage of Taylor, 848 P.2d 478 (Mont. 1993).
In Re the Marriage of Smith, 891 P.2d 522 (Mont. 1995).
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