Montana Domestic Violence Guide

Property Damage, Phones, and Trespass in a Domestic Dispute

A broken phone, a dented car, a door opened at a home you used to share. These become criminal charges more easily than people expect, including when the property is partly yours.

Written by

Ashley Hurlbert, Partner, A&M Law

Licensed Montana attorney and co-founder of A&M Law. 18 years of experience as lead counsel in 50+ jury and bench trials. A Certified Mediator and Certified Guardian ad Litem focusing on family law, criminal defense, and DUI defense.

18 yearsReviewed by Misty GaubatzLast reviewed: September 30, 2026

Property charges can be filed out of a domestic dispute even when no one was touched. The ones covered here are criminal mischief for damaged property, a specific offense for destroying or taking a phone, and criminal trespass or burglary for entering a home. The fact that property is jointly owned, or that the home is partly yours, does not automatically prevent a charge. This page explains what the statutes say. It is part of our Montana Domestic Violence Guide.

The Charges and Their Penalties

Offense	MCA	Penalty in the statute
Criminal mischief	§ 45-6-101	County jail up to 6 months, a fine up to $1,500, or both. If the loss is over $1,500: state prison up to 10 years, a fine up to $50,000, or both. Restitution must be ordered.
Destruction of or tampering with a communication device	§ 45-6-105	County jail up to 6 months, a fine up to $1,000, or both
Criminal trespass to property	§ 45-6-203	County jail up to 6 months, a fine up to $500, or both
Burglary	§ 45-6-204(1)	State prison up to 20 years, a fine up to $50,000, or both
Aggravated burglary	§ 45-6-204(2)	State prison up to 40 years, a fine up to $50,000, or both

Criminal Mischief and Shared Property

A person commits criminal mischief by knowingly or purposely injuring, damaging, or destroying "any property of another or public property without consent" (MCA § 45-6-101(1)(a)). The question people ask is how something they paid for can be the property "of another."

The answer is in the definitions. "Property of another" means "real or personal property in which a person other than the offender has an interest that the offender has no authority to defeat or impair, even though the offender may have an interest in the property" (MCA § 45-2-101). Under that wording, co-owning something is not a defense. If the other person has an interest that you cannot lawfully cancel on your own, the property is "of another" for this statute.

How that applies to a jointly titled car, a leased apartment, or items bought during a marriage depends on who holds what interest, which is a factual and legal question in each case. Property that is yours alone, in which no one else has an interest, falls outside this subsection.

Two more points. A person convicted of criminal mischief "must be ordered to make restitution" (MCA § 45-6-101(2)). And the $1,500 line between the lower and higher penalty ranges is measured by pecuniary loss, with amounts from the same transaction or a common scheme added together (MCA § 45-6-101(3) and (4)). A damaged vehicle or broken electronics can pass that figure.

Breaking or Taking a Phone

Montana has a statute aimed at this exact situation. A person commits criminal destruction of or tampering with a communication device by purposely or knowingly destroying or tampering with a telephone or other communication device to obstruct, prevent, or interfere with (MCA § 45-6-105(1)):

the report to any law enforcement agency of any actual criminal offense,
the report to any law enforcement agency of any actual bodily injury or property damage, or
a request for necessary ambulance or emergency medical assistance.

Tampering is defined broadly. It includes making the device unusable or inoperable, interrupting its use, or "making it inaccessible" (MCA § 45-6-105(2)). So taking a phone out of someone's hand and keeping it from them can be charged, even if the phone is never damaged. This section does not use the words "of another," so ownership of the phone is not one of its elements.

Trespass at a Shared or Former Home

Criminal trespass to property is knowingly entering or remaining unlawfully in an occupied structure, or in or upon the premises of another (MCA § 45-6-203(1)). A person enters or remains unlawfully "when the person is not licensed, invited, or otherwise privileged to do so" (MCA § 45-6-201(1)).

Everything turns on privilege. Someone who has moved out of a home they never owned or leased, and comes back uninvited, is in a different position from a co-owner or co-tenant. But ownership is not the end of the question, because court orders can take away the right to be in a place:

A no contact order can require a person to stay up to 1,500 feet from the protected person's location (MCA § 45-5-209(1)).
An order of protection can remove and exclude the respondent from the petitioner's residence "regardless of ownership of the residence" (MCA § 40-15-201(2)(e)).

The trespass statutes do not say in so many words how such an order affects "privilege." What is certain is that entering in violation of an order is a crime under the order statutes themselves. See where can I live and the family home and bills during the case.

How Trespass Becomes Burglary

Burglary is knowingly entering or remaining unlawfully in an occupied structure when the person either has the purpose to commit an offense inside or knowingly or purposely commits any other offense within the structure (MCA § 45-6-204(1)). It does not require theft. An "occupied structure" includes any building suitable for human occupancy, whether or not a person is actually present (MCA § 45-2-101).

This is why entry into a former partner's home is so dangerous legally. If the entry is unlawful and the State alleges an assault, a threat, or property damage inside, it can charge burglary, with a maximum of 20 years. If it alleges a weapon, or that bodily injury was inflicted or attempted, it can charge aggravated burglary, with a maximum of 40 years (MCA § 45-6-204(2) and (3)).

What to Do, and Not Do

Do not return to a home an order keeps you away from, for any reason, including to collect your own things. Do not repair, replace, or dispose of damaged items before talking to a lawyer. Do not contact the other person about the property. There is a lawful process for getting your belongings, and questions about who keeps what belong in a family law case, not at the front door.

A&M Law defends these charges together with PFMA in Western Montana, and Ashley Hurlbert handles both criminal defense and family law matters.

This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.

Montana Domestic Violence Guide Domestic Violence Defense Endangering the Welfare of Children Disorderly Conduct vs. PFMA Strangulation of a Partner Aggravated Assault on a Partner

FAQ

Property Damage, Phones, and Trespass in a Domestic Dispute FAQ

Can I be charged for breaking my own property in Montana?

If the property is solely yours and no one else has any interest in it, it is not "property of another" as the criminal code defines that term. But the definition covers any property in which another person has an interest that you have no authority to defeat or impair, even though you also have an interest (MCA § 45-2-101). Property owned together can fit that definition, and property acquired during a marriage may, depending on the interests involved.

Is breaking someone's phone during an argument a crime?

It can be two. Damaging another person's phone can be criminal mischief. Separately, MCA § 45-6-105 makes it an offense to purposely or knowingly destroy or tamper with a telephone or other communication device to obstruct, prevent, or interfere with a report to law enforcement of a crime, bodily injury, or property damage, or a request for emergency medical help. That statute does not require that the phone belong to someone else.

Can I be charged with trespassing at my own house?

Ordinarily a person who owns or leases a home is privileged to be there. A court order can change that. A no contact order can impose a stay-away distance, and an order of protection can remove and exclude a person from a residence regardless of ownership (MCA § 40-15-201(2)(e)). Whether entry against such an order can be prosecuted as trespass or burglary depends on the order and the facts. Going back is a violation of the order in any case.

When does property damage become a felony in Montana?

Under MCA § 45-6-101(3), criminal mischief that causes pecuniary loss in excess of $1,500 is punishable by a fine of up to $50,000, up to 10 years in state prison, or both. Amounts from a common scheme or the same transaction may be added together to determine the loss.

How do I get my things if I cannot go home?

Not by going there yourself, and not by asking the protected person. There are lawful ways to retrieve essential belongings, which can involve the court or a law enforcement standby. Talk to your lawyer first and see getting your belongings from home.

Property Charges Added to a Domestic Case?

Who owned what, and whether you had a right to be there, are questions of evidence. Call 406-830-3060 for a confidential consultation.

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