The Basics of Idaho Legal Separation
When you get married, you never expect that your relationship will meet an end point. Unfortunately though, marriages do not always last and when they end there are legal issues to deal with. In Idaho, many couples decide to pursue a legal separation instead of a divorce. This shortcut guide to separation law in Idaho will familiarize you with all the important legal details.
Legal separation is different from divorce in that it does not completely sever the marital relationship. It is an option that better protects religious beliefs about marriage and divorce. However, in most situations, it provides results similar to divorce. A couple that separates but does not divorce can divide property, settle alimony or spousal support payments and create parenting plans just as they would if they were to divorce.
The only processes that differ are those that pertain to the marital relationship itself. During a separation , spouses remain married and cannot remarry without getting a divorce. They also cannot marry again until 6 months have passed following a divorce in Idaho.
Spouses may choose separation instead of divorce if they want to preserve their legal relationship. The two of you might have strong religious beliefs that interfere with the goals of a divorce. Or you may choose separation because your spouse is producing antagonistic behavior during the separation — for instance, he or she may be threatening to leave the state with the kids, or to cut financial support. You might choose to separate because you need time to think about whether or not you want to pursue a divorce.
Legal separation might be right for you if you have children, own property in Idaho and Idaho is the state where you have lived for the last 6 months. Pursuing a legal separation in Idaho can help you to secure your assets before you start the legal process. Just like with the filing of a divorce, you can file for legal separation in Idaho by yourself, or you can consult an attorney to create your documents.
Grounds for Legal Separation in Idaho
Separation in Idaho occurs when a husband and wife are living "separate and apart." In Idaho, the term "separate and apart" means living physically separate without interfering in the other spouse’s affairs (i.e. going through each other’s personal belongings without permission, contacting their employer concerning their paychecks, etc.). If the spouse is relating to the other spouse as married, in other words treating the spouse as the spouse (i.e. not dating) then the husband and wife may not be eligible for separating in Idaho.
The legal grounds for separation analyzed in Idaho has been to determine if evidence has been produced to show the parties are physically living apart in a manner so that reconciliation is no longer possible. Whether such an arrangement should be formalized by a separation decree or is sufficient to justify the grant of a divorce is a matter left to the sound discretion of the trial court. The general rule is that concurrent residence during prolonged intervals of disagreement over serious matrimonial problems does not constitute living "separate and apart." There is no statute which prohibits prior cohabitation as married persons to be used for a basis to establish a divorce if the cohabitation was consensual and not the result of fraud or forcible compulsion. Evidence that a separation agreement is in existence may be sufficient in and of itself to establish separation in Idaho.
Even when the separation is temporary, i.e. "a trial separation," if a spouse is moving out of the house but the parties are working toward reconciling the marriage then the husband and wife will not be able to obtain a divorce without additional facts demonstrating a separation. A trial separation does not reside in prior temporary spats which again fail to yield divorce papers, but in the question whether the spouses actually intend to live separate and apart or indefinitely discontinue their cohabitation. Prolonged intermittent separations or reconciliations do not foreordain the separation necessary to adjudicate the marriage.
The Process to Obtain a Legal Separation
The filing process for a legal separation in Idaho is similar to that of a divorce, but there are some key differences. The following is a step-by-step guide to filing for a legal separation in Idaho:
1. Fill out the necessary court forms. The forms you’ll need to complete depend on the specific circumstances of your case. However, in most cases the following forms will be required:
· Petition for Legal Separation
· Summons
· Affidavit Regarding Military Service (if applicable)
· Certificate of Divorce or Annulment (if applicable)
· Notice of Default and Request to Schedule Hearing and Order
· Order to Enter Default and Judgment
· Instructions for Default Hearing
· Order of Legal Separation
You can obtain these forms from the Idaho State Judiciary’s website or your local county courthouse.
- File the forms with the court. After completing the necessary forms, you’ll need to file them with the appropriate court – usually the district court in the county where you or your spouse reside. There will be a filing fee associated with this process, which varies by county.
- Serve your spouse. To have your separation granted, you must ensure that your spouse receives a copy of the filed court papers. Either you or a process server can deliver (or "serve") the papers to your spouse. It is vital that you follow proper service procedures to ensure the court can process your separation.
- Wait for a response. After being served, your spouse has 20 days to file a response to your separation petition. If they sign a "Waiver of Service of Summons," they may be excused from this requirement.
- Attend the hearing. Your separation case will likely require a court hearing. The court will send you a notice stating the date and time when you need to appear in front of the judge. In most cases, the hearing is a formality. However, if your spouse contests the separation filing, the judge may need to decide disputed issues regarding asset division, child custody and other aspects of the separation process.
Following a legal separation, you and your spouse will live separately, though you will still be married. Some people choose legal separation as an alternative to divorce, while others may pursue it as a valid first step before seeking a divorce.
How Further to Handle Financial Matters
Upon separation, spouses have the financial responsibility to pay their own bills and divide their expenses, as if unmarried. Financially speaking, separation and divorce are similar from a legal standpoint. Under Idaho law, separation and divorce require the same division of debts and property, as well as the payment of spousal maintenance, if applicable.
Property Division
Under Idaho law, separating couples must divide all property that was acquired during the marriage. The separation agreement should contain provisions to clarify how debt will be divided and address each party’s debt allocation.
Spousal Maintenance/Spousal Support
Just as in a divorce, a spouse may request maintenance during a legal separation. Unlike divorce, a separating spouse cannot ask the court to make an award of alimony. There will be no dissolution of marriage or decree of divorce until the judge enters a decree terminating the marriage. The court will determine if an alimony award is appropriate at the time of divorce.
Unless the court finds that the parties are absolutely unable to agree on any matter involving spousal support, the spouses must attempt mediation. If the spouses cannot mediate their issues, the court may take evidence and then decide the amount and duration of spousal maintenance. Many separating spouses can negotiate this issue instead, and have the judge review the proposed spousal support agreement without the need for a contested hearing.
Generally, the court attempts to accomplish a just and reasonable separation of the parties’ financial circumstances. The court may order temporary maintenance in order to provide support for the spouse with the lower income during the separation period.
The law presumes that spouses will have a reduced standard of living after separation, which is commensurate with the couple’s financial circumstances. Therefore, the judge may place some restriction on a spouse making substantially more than the other spouse, so that the lifestyle of the lower-earning spouse can be preserved.
Child Custody and Support Concerns
While the focus of a legal separation in Idaho may be more on property rights, it is important to understand the potential impact on child custody and support. When parents are legally separated, they are still expected to financially support their children. If they are unable to do so, then the state of Idaho has established the guidelines for determining support. The Idaho Child Support Guidelines establish the presumptively appropriate amount of child support. If you can pay that presumptively appropriate amount, you will be ordered to pay that amount. If you cannot, due to some other financial obligation, you would be required to file an application for deviation from the Guidelines to be relieved of that presumptively appropriate amount .
Although your legal relationship to the other parent of your children may be impacted by your decision to pursue a legal separation, a legal separation does not end your relationship as parents. Although the court will determine the allocation of parenting time between the children and each party, generally, you will be expected to reach agreement with the other parent regarding the living arrangements and visitation schedule for your children until the case is resolved. If you are able to reach agreement with the other party, the agreement is generally documented in a temporary order. If you are unable to reach agreement, you will be required to submit a First Appearance Notice and the court will set a temporary hearing. Temporary orders usually deal with these issues. They are temporary until the case can be resolved by settlement or trial.
Reconciliation or Dissolution
We have also discussed a situation where a couple may choose to live apart for a period of time, then see if they want to reconcile (and if so, in what manner) or continue the divorce process. This is typically done through the legal process of obtaining a Decree of Legal Separation pursuant to Idaho Code §32-717A. However, if the couple decides they do not want to reconcile or if the final period of separation passes and they go through with the Divorce so that there is a Decree of Dissolution, the Courts will look at the final Separation Agreement, signed by the parties, pursuant to Idaho Code §32-623, and incorporate that Agreement into the Decree. As such, it is critical that this document be done the right way so that the parties get what they want out of separation from the beginning so that they are not litigating the issues if they do not have to due to lack of that document.
Legal and Community Referrals
When considering a legal separation, it is essential to understand and navigate the complex legal process that comes with it. The complexities of Idaho separation laws and their implications for your specific situation necessitate legal guidance. A legal professional experienced in family law can provide much-needed clarity on divorce, separation, and annulment. They can also help you understand the nuances of filing for a legal separation as well as provide representation during negotiations, mediation, or court processes. It is never too early to speak to an attorney in Idaho. Whether you are considering a legal separation, or simply want to understand more about family law options in Idaho, there are a number of resources available. Idaho Legal Aid Services (ILAS) provides free legal assistance to eligible low-income Idahoans who cannot afford to pay for a lawyer . They offer pro bono legal assistance in civil legal matters, which is provided by volunteer lawyers. The Idaho State Bar is another resource that can be helpful. Their Family Law Section involves over three hundred members from throughout Idaho. Members share a common interest in the practice of family law, and the purpose of the Section is to promote that interest, facilitate the exchange of ideas and knowledge among its members, suggest improvements in family law practice, and develop and implement relevant education programs. Additionally, the Idaho Supreme Court has a Family Law Guide that provides information about various family law legal matters including separation, divorce, annulment, and child custody and support. The guide also includes forms and explanations about how to file as a pro se litigant.