Divorce and Separation in Idaho
Persons seeking divorce often ask whether an out of state husband or wife can be sued in a state in which the other lives, and the answer is technical, though generally, a divorce or custody action jurisdiction against the other party can be brought only in the state where the prospective respondent resides.
And, if there is jurisdiction in Idaho, while an action for divorce or custody may be brought in any county in Idaho, the proper “venue” for a divorce or custody case is where the parties reside and witnesses are most readily available.
Separation can be formal or informal in a divorce scenario, though a “legal separation” requires the filing of a petition for divorce and a court order setting forth the rights and responsibilities of the parties regarding property and child custody. Sometimes, persons may talk about ”separation,” meaning an informal arrangement in which the parties have not filed a divorce petition or a petition for legal separation, but such a situation does not change the circumstances of the parties without more. Please consult Brian Donesley to find out more about how, why and what are the advantages and disadvantages to legal separation, divorce and how custody matters play into such matters. Please do not assume because your and your spouse are “separated” that this changes your property or child custody. It does not by the mere fact of not living together.
Property Settlement In A Divorce Case involves the division of the property of the community, “community property,” according to the community property laws of Idaho and cases which have interpreted the property settlement issues in divorce cases. Not all property is community property, however.
The determination of the nature of community property is very important, as “separate property” of either party remains the property solely of such person, subject to exceptions and qualifications.
For example, even though separate property in the beginning, such separate property can become community, subject to division, based upon how the parties have treated it, by commingling beyond reasonable traceability back to the original source.
Or, for further example, rents and profits or enhancements relating to personal property may create a community property interest in what was separate property. So called “prenuptial agreements” are sometimes used to prevent confusion over what property may remain separate or shall be community in a divorce. Such prenuptial agreements can be very effective in clarifying the intentions of the parties should a property division be required in a divorce, or should issues pertaining to inheritances following the death of a spouse arise involving family of either party to a marriage.
Child Custody and Support in Idaho
Child Custody means that the natural or legal parents of a minor child, whether ever married or not, have natural and statutory rights and duties with respect to such child or children. Presumed by law in Idaho is equal rights. Yet, there are circumstances in which the “best interests of the child or children,” as determined by the court in a divorce or a divorce, legal separation or petition for custody become subject to a court order allocating custody, visitation rights, child support responsibilities and other legal rights and duties to each parent.
Sometimes parents try to set the rules among themselves in discussions or even in writing. While such may evidence the preferences of the parents, the court has final say over matters relating to these matters in the best interest of the children in divorce, custody or legal separation situations.
Child Support is the obligation of parents to provide for the care financially for their children. This duty arises from the very nature of parentage and by statutes relating to child custody and child support in Idaho and all other states. Each state defines the terms of child support, and usually support is meant to include obligations relating to medical care and insurance and work related daycare costs.
The amount of child support ordered by a court in a divorce, legal separation or child support petition is governed by the divorce laws and the rules of the Supreme Court of the State of Idaho. Schedules exist as guidance based upon the income of the parties and the specific details of each case, including the time allocation of overnight visitations with each parent.
Child Custody Or Child Support Modification is done by court order. While parents in a child custody or child support modification case may agree to what they want to do, it will have no legal effect without the court’s order containing any terms agreed to or stipulated by the parties. The same considerations apply to child custody or child support modifications pertaining to child support generally, as discussed above. Please ask Brian Donesley, attorney, for help in exploring your options and alternatives in child custody or child support modification cases.
Domestic Violence and Mediation in Idaho
Domestic Violence is strictly punished in the law as criminal. The penalties are serious, and a finding of domestic violence can cause an unequal division of property in a divorce and may result in child custody and child support orders that would not otherwise have been the case. There is no excuse whatsoever for domestic violence. Domestic violence includes threats, intimidation and physical or emotional violence. When within earshot of a minor child, domestic violence becomes aggravated domestic violence. No contact orders are automatic and shall remove the accused from any shared home and shall cause there to be no contact with those in the household or community directly involved.
Please do not underestimate the harm done in domestic violence situations. If the victim, you should seek police and attorney help immediately. First, however, do all possible to avoid harm, even to leave the place where this is occurring. Any person involved, whether thought provoked or not, must understand that leaving is best until whatever circumstances that are causing the underlying anger can be addressed. This must be before out of control and invoking the police, the courts, prosecuting attorneys, private attorneys and social service and child protection agencies.
Mediation involves bringing into a dispute a trained professional to help the parties reach agreement on any issues in contention in a divorce, child custody, child support, property settlement or other matter. The courts always order mediation in divorce, child custody, child support or property settlement cases.
In my experience, mediation can be a very valuable and less expensive means of reaching an agreement or stipulation for the court’s review and approval by court order. Keep in mind that a mediator does not make final rulings and that if no agreement is reached the case goes back to court. Hearings or trials may then follow pretrial procedures which are time consuming, difficult and costly.