Many people believe that premarital, gifted and inherited property is not subject to division during a divorce. However, Montana law is not that simple. If parties cannot agree how to divide their property during their divorce, the court decides who keeps what.
In a divorce, the court must “equitably divide” all property belonging to either or both parties, however and whenever acquired, without regard to title and without regard to marital misconduct. In dividing premarital, gifted and inherited property, courts must also consider the contributions of the other spouse to the marriage. This includes the nonmonetary contributions of a homemaker, the extent to which such contributions have helped maintain the property at issue, and whether or not the property division serves as an alternative to maintenance (alimony). The court’s division of property based upon the unique facts of each case.
In other words, the court has the ultimate authority to distribute all property of both spouses and is not required to subtract premarital, gifted and inherited property from the marital estate before dividing it. Certainly, the party claiming ownership of the premarital, gifted or inherited property is entitled to argue that it would be equitable to award him or her the entirety of such property, but it is not guaranteed that the party will get to keep it.