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In Re Marriage of King

    Brief Fact Summary. As a part of a divorce, the ex-wife was awarded the family home.

    Synopsis of Rule of Law. In Montana, child support considerations may be taken into account during an equitable division of property, and if the husband is unable to support the children, the wife may be granted a larger share of marital property in order to offset her increased financial obligation.

    Facts. The Kings divorced in June 1981 in Montana. They had two minor children. The husband is employed as a professional gambler. The District Court awarded each their own personal property and gave the family home to the wife. The District Court found that the sale of the home would not provide adequate provision for the children, and the children would face a substantial hardship if they had to move.

    Issue. When dividing property in a divorce case, is it proper for a court to take into account child support considerations?

    Held. Yes. Judgment affirmed.
    The best interests of the children may be taken into account when dividing assets, and a portion of each party’s estate may be set aside to support their children. An equitable division of property does not mean the division should be 50-50.
    Selling the home would require the payment of realty fees out of the estate and uproot the children from their home, so no reasonable purpose would be achieved by selling the residence.
    Awarding the wife the residence in lieu of the husband paying child support is correct because the husband’s employment does not insure that he will have a steady income that will provide for his children. The wife will have an increased financial obligation to the children, so giving her an increased share of the marital property (the family home) offsets her greater obligation.

    Discussion. A division of property in a divorce proceeding should take into account the best interests of the children and may result in one party getting a larger share of the marital property.


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