Divorce

Although sometimes divorces come out of the blue, taking at least one of the spouses totally by surprise, other times divorce has been on the table for a significant amount of time, and both spouses are in agreement regarding the necessity of a divorce. In cases where there were clear indications of divorce for months, perhaps even years, it is extremely important that both spouses map out a “plan” for their Idaho divorce, so that important details are not lost in the emotions. While divorce is certainly a very difficult and emotional time, staying organized and focused on your life following the divorce is crucial.

If you are a spouse who has never handled any of the finances, it is particularly important that you view your divorce in the same way you would the dissolution of a business partnership. Business partners rarely walk away from what is rightfully theirs, simply because they are overwhelmed with emotion. In the same light, allowing yourself to walk away from assets which are yours simply because you do not want to fight with your spouse—or just want the divorce over and done—will not benefit your future, or that of your children. Separating your impending divorce into “phases,” can be helpful, such as:

Phase One—Financial Issues Prior to Filing for Divorce

Phase one will be the time when you and your partner are just coming to the realization that divorce is imminent. Perhaps you have discussed it, or maybe your relationship is too volatile to even have a civilized discussion.  While some couples may be considering therapy or counseling, others could be certain their marriage is too far gone for this type of help. If you are in any of these situations—and even if there is a slight possibility you may reconcile with your spouse—you should begin gathering all historical financial documents should you need them.

These documents include bank statements, tax returns, all banking records, records of real estate or vehicle transactions and any documentation related to salaries, benefits and retirement accounts. If you and your spouse have stocks and bonds, get that information as well. Talk to friends who have used a divorce attorney, or do some research on your own, and narrow your list of potential attorneys down should you end up needing one. If you and your spouse are able to sit in the same room and have a reasonable discussion, then start negotiations regarding financial settlement and child custody arrangements. If you cannot communicate with your spouse, don’t waste your precious energy arguing.

Phase Two-Filing the Divorce

Once you know for certain you will be divorcing, one of you will need to file legal divorce papers. If your spouse has not filed, then you should go ahead and find an experienced Idaho divorce attorney to file your divorce and begin the process. You will work closely with your divorce attorney to come up with a proposed settlement agreement, and it is important that you stay involved throughout the process.

Trying your best to be reasonable and flexible can significantly decrease the time and stress involved in your divorce, however do not cave in on issues which have a direct bearing on your future. Disputes which cannot be worked out between attorneys and spouses will go before a judge who will make those decisions for you. Make some plans and goals for the time period following your divorce. Be realistic but remain hopeful for your future.

One of you will need to have been an Idaho resident for at least six weeks in order to file in the state of Idaho—a considerably shorter residency requirement than most states. If you are the spouse filing, then you are the plaintiff and the other spouse is the defendant—and vice-versa. You will need to determine whether you will file under a no-fault divorce, simply claiming irreconcilable differences, or whether you will file a “fault” divorce. The “faults” which are allowed under Idaho law include:

  • A felony conviction
  • More than a year of habitual drunkenness
  • Extreme physical or mental cruelty
  • Adultery
  • Willful neglect (can only be claimed by a woman, and is defined as a husband who failed to provide his wife with the basic necessities of life because of his refusal to work or overall laziness for at least one year)
  • Desertion (one spouse lived apart from the other for a year or more with the intent of leaving the marriage)
  • Permanent insanity (one spouse has spent at least three years in a mental institution).

Remember, that if you claim fault in your divorce, you will have to have proof to back up that claim. Most people file a no-fault divorce, however in some instances, you could be entitled to a larger share of the marital assets if you can prove fault. As an example, if your spouse has been seeing another person for a considerable length of time—and has spent significant amounts of the marital assets on that person, then it could be of benefit to claim adultery in your divorce papers and ask the judge to award you sufficient assets to “make up” for the marital assets your spouse dissipated during the marriage.

Once the other spouse has been served with divorce papers, he or she must file a response. If no response if filed, the court may grant the divorce, along with everything the plaintiff has asked for. There is a waiting period in Idaho—although it is relatively short—the court will not hold a hearing on your grounds for divorce for at least 20 days after you file the initial paperwork. During this time period, the court could ask you and your spouse to meet with a counselor in case reconciliation is a possibility.

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Phase Three—Dividing Assets and Determining Child Custody and Spousal Support

Phase three may well be the most difficult time of a divorce. This is when the marital assets are split, child custody and child support are determined, and spousal support is decided. Once grounds for your divorce are established, the court is within its rights to put your divorce on hold for 90 days if there are minor children involved, in hopes of the two of you staying together, but this is rare.

Idaho is a community property state, meaning theoretically the marital assets are to be split right down the middle, barring any extenuating circumstances. Assets owned by one spouse or the other prior to the marriage may not be considered marital assets unless those assets were in some way commingled during the marriage. As an example, if one spouse had $100,000 in the bank when they married, this money would be considered their sole and separate property unless the other spouse was added to the account. Even if the money remained in the name of one spouse, any interest accrued on the money during the marriage could be considered a marital asset.

Spousal support will be determined based on need, as well as the education and job prospects of each spouse. If one spouse gave up his or her own career or education in order to help the other spouse reach their career goals, or if one spouse stayed home to take care of the children and home, then they could receive spousal support. There are many factors involved in the award of spousal support, including:

  • The length of the marriage;
  • The physical, mental and emotional condition of each spouse;
  • The earning ability of the spouse seeking spousal support;
  • The paying spouse’s ability to pay spousal support;
  • Whether one spouse needs time to obtain education or training to find suitable employment, and
  • The tax consequences of spousal support to both spouses.

Since there is no actual “formula” to determine the amount of spousal support, the judge will make the determination based on the factors above as well as prior alimony cases.

Child custody and child support will also be determined during this phase of the divorce. While it may be tempting to use custody issues to “get back at” a spouse who has somehow taken more than their fair share of the marital assets, it is important to resist this temptation. Child custody and child support should be determined based only on the best interests of the children.

Phase Four–Post-Divorce Issues

Once the legalities have been taken care of, you will be required to wrap up the finances and emotions left over from your marriage. If you have feelings of resentment, bitterness and grief that don’t seem to go away, you should either find a trusted friend to talk to or seek professional counseling. While these emotions are normal, at some point you will need to put them behind you and plan for your future. Make sure all the paperwork is taken care of regarding your finances, taking into consideration the final divorce agreement. Transfer ownership of assets, close joint accounts, and open accounts in your own name. Use your divorce attorney’s resources to the fullest extent and consult your Idaho family law attorney when you have questions or concerns.

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