If you or your spouse works for the State of Montana, a county, a city, a school district, or a public safety agency, the pension is probably in one of Montana's public retirement systems. Those pensions can be divided in a divorce, but not with an ordinary QDRO. The system will pay a former spouse only under a family law order that satisfies MCA § 19-2-907 (for the Public Employees' Retirement System and several others) or MCA § 19-20-305 (for the Teachers' Retirement System). This page is part of our Montana Divorce Guide.
Two Statutes, Depending on the System
Whether and how much of a pension each spouse receives is decided by the divorce court under the property division statute. See how property is divided in Montana. The retirement statutes answer a narrower question: what kind of order the system will honor.
MCA § 19-2-907 applies to participants in a retirement system or plan under Title 19, chapters 3, 5, 6, 7, 8, 9, 13, and 17. In the 2025 Code those chapters are the Public Employees' Retirement System (PERS), the judges', highway patrol officers', sheriffs', and game wardens' and peace officers' systems, the statewide police plan, the firefighters' unified system, and the Volunteer Firefighters' Compensation Act. The Teachers' Retirement System (TRS) is in chapter 20 and has its own section, MCA § 19-20-305.
Other public employee plans, such as the university system retirement program and the state deferred compensation plan, sit in different chapters of Title 19 that § 19-2-907 does not list. If your plan is one of those, ask the plan what it requires.
What Both Statutes Require
- Identification. Under § 19-2-907(3) the order must identify the participant and the alternate payee by full name, current address, date of birth, and Social Security number. TRS requires the same for the alternate payee plus a current phone number (§ 19-20-305(3)), and a copy of the alternate payee's birth certificate when an actuarially equivalent amount is ordered (§ 19-20-305(5)(b)(iii)).
- No new benefits. An order may not require a type or form of benefit, option, or payment that is not available to the participant, or an amount greater than what is available to the participant (§§ 19-2-907(4) and 19-20-305(4)).
- Board review. Each order establishing a final obligation must state that it is subject to review and approval by the board (§§ 19-2-907(9) and 19-20-305(10)).
- Protection from creditors. The alternate payee's rights are not subject to assignment, execution, garnishment, attachment, or other process (§§ 19-2-907(3) and 19-20-305(3)).
- Changes only by a new order. The alternate payee's interest may be modified only by a family law order amending the original. TRS also allows a full renunciation by the alternate payee.
How the Two Statutes Compare
| Point | PERS and listed systems | TRS |
|---|---|---|
| Governing section | MCA § 19-2-907 | MCA § 19-20-305 |
| Systems covered | Plans under Title 19, chapters 3, 5, 6, 7, 8, 9, 13, and 17, which include the Public Employees' Retirement System and the judges', highway patrol, sheriffs', game wardens' and peace officers', statewide police, and firefighters' plans | The Teachers' Retirement System (Title 19, chapter 20) |
| What the order may address | Child support, parental support, spousal maintenance, or marital property rights | Spousal maintenance or marital property rights |
| How a share may be stated | Defined benefit plan: a percentage of the amount payable, or a fixed amount. Defined contribution plan: a percentage or fixed amount of the vested account. | An actuarially equivalent amount payable for the alternate payee's life, or a fixed amount for a determinate period |
| Form of order | Must comply with the section and with 26 U.S.C. § 414(p) | A certified copy of a court order on a form prescribed and provided by the retirement system |
| If the alternate payee dies first | Rights survive and may pass by inheritance or beneficiary designation, unless the order says they revert to the participant | An actuarially equivalent amount always ends at the alternate payee's death. A fixed amount may pass to a designated beneficiary only if the order expressly allows it. |
| Board approval | Order must state it is subject to review and approval by the board | Order must state it is subject to review and approval by the board |
What an Order Can Do Under § 19-2-907
For a defined benefit plan, retirement benefit payments or refunds may be apportioned by a percentage of the amount payable or by a fixed amount no greater than the amount payable to the participant. Payments may be limited to a specific monthly amount if the number of payments is specified (§ 19-2-907(5)(a)). Post-retirement benefit adjustments may be paid to the alternate payee as a percentage only if the underlying payments are paid as a percentage, and in the same ratio, unless the order says the alternate payee is not entitled to them (§ 19-2-907(5)(c)). The order may require the participant to choose a specified form of benefit or to designate a beneficiary or contingent annuitant, if the plan allows that option (§ 19-2-907(5)(d)).
For a defined contribution plan, the participant's vested account may be apportioned by a percentage or a fixed amount, not to exceed the vested account. The alternate payee may receive it only as a direct payment, rollover, or transfer, and the share must be fully disbursed as soon as administratively feasible once the board approves the order (§ 19-2-907(6)(a)).
Limits on Duration, Disability, and Survivor Benefits
Under § 19-2-907(7), monthly payments to an alternate payee may not exceed the lifetime of the appropriate participant. The order may further limit them only to a specified maximum time, the life of the alternate payee, or the life of another specified participant. Unless the order says the alternate payee's interest reverts to the participant at the alternate payee's death, that interest survives and may pass by inheritance or beneficiary designation.
Disability and survivorship benefits have a ceiling. The most that may be paid to alternate payees is the monthly benefit that would have been payable on the date service ended if the member had retired without disability or death, and the statute warns that the amount "may be zero, depending on the member's age and service credit at the time of disability or death" (§ 19-2-907(5)(b)).
TRS works differently. An actuarially equivalent amount is the member's transferred share, adjusted to be payable for the alternate payee's lifetime, and it must be stated as a percentage or be readily determinable from the order (§ 19-20-305(2)(a) and (5)(b)). It ends at the alternate payee's death and cannot be left to anyone (§ 19-20-305(12)(a)). A fixed amount is deducted from the member's benefit for a determinate period no longer than the life of the member or of the benefit recipient under the retirement allowance the member elected (§ 19-20-305(5)(a)(ii)). If a member withdraws accumulated contributions and gives up the pension, the alternate payee is entitled to a lump sum up to the fixed amount or percentage share (§ 19-20-305(6)).
Practical Steps
- Find out which system and which plan (defined benefit or defined contribution) the member is in, and list it in your financial disclosure.
- Ask the retirement system for its family law order materials before the settlement terms are final. For TRS the order must be on the system's own form.
- Decide what should happen at each death, and make sure the order says so in a way the statute permits.
- Do not treat the division as finished until the board has approved the order. See getting the QDRO done.
Both statutes direct or allow the boards to adopt rules for administering these orders. We have summarized the statutes here, not the boards' rules or forms, so confirm current procedures with the system itself. Separate sections make these benefits reachable for support obligations (MCA §§ 19-2-909 and 19-20-306). For private employer plans and IRAs, see dividing retirement accounts and QDROs, and for service members see military pensions and benefits.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.