Idaho Divorce Law
Divorce and Legal Separation in Idaho
Divorce and Legal Separation in Idaho
Idaho Divorce Basics
To file for divorce in Idaho, the Plaintiff (filing spouse) must have been a resident of the state for six full weeks immediately preceding the commencement of the action.
A divorce may be granted upon the default of the Defendant (responding party), upon the uncorroborated statement, admission or testimony of the Plaintiff. However, no hearing on the merits of the grounds for divorce shall be held in any action for divorce, and no final decree shall be entered in any such case until at least twenty days after the commencement of the action and service of process.
During the twenty day “waiting period”, or at any time after but before entry of a final divorce decree, the court, upon application by one of the parties, may require a conference of the parties with a person or persons of his/her choosing, or persons selected by the court, in order to determine whether or not a reconciliation between the parties is practical. This is provided, however, that nothing shall prevent the court from making just and equitable interim orders. Provided, further, that nothing shall prevent the court from proceeding to try the matter on the merits and enter a final decree of divorce upon the agreement of both parties and with both parties present in person or represented by counsel at the trial.
In any action of divorce, where grounds for divorce have been established, if the court finds that attempts at reconciliation are practical and in the best interest of the family, the court may stay the proceedings for a period not to exceed ninety days when there are minor children in the family.
These reconciliation procedures will not be construed as condonation on the part of either spouse, of acts that may constitute grounds for divorce, nor will they bar assertion of these grounds.
No legal provision addresses restoration of a former name; however you may request restoration of your former name on your Complaint for Divorce.
Legal Grounds for Divorce in Idaho
- 1. Adultery – voluntary sexual intercourse of a married person with a person other than the offender’s spouse;
2. Extreme cruelty – infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage;
3. Wilful desertion – the voluntary separation of one of the married parties from the the other with intent to desert for a continued period of no less than one year;
4. Wilful neglect – the neglect of the husband to provide for his wife the common necessities of life, while he has the ability to do so, or the failure to do so due to idleness, extravagance or dishonesty, for a continued period of no less than one year;
- 5. Habitual intemperance – the degree of excess from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party, for a continued period of no less than one year;
6. Conviction of felony;
7. When either the husband or wife has become permanently and incurably insane – provided that the insane spouse has been duly and regularly confined in an insane asylum for at least three years immediately preceding commencement of the divorce action;
8. Separation without cohabitation for a period of five years or more; or
9. Irreconcilable differences – determined by the court to be substantial reasons for not continuing the marriage and which makes it appear that the marriage should be dissolved.
Divorce may be denied for these grounds if any of the following is shown to be true:
- Collusion - an agreement between spouses that one of them will commit or appear to have committed, or to be represented in court as having committed acts which constitute a ground for divorce for the purpose of enabling the other spouse to obtain the divorce;
- Condonation - displayed when normal marital relations have been resumed after knowledge of the offense(s) and there is no reproach, or two or more years have passed since the condonation;
- · Recrimination – occurs when the defendant shows that the Plaintiff has also committed an act which a ground for divorce; or
- Limitation and lapse of time – within two years for the cause of adultery, within one year of a pardon or termination of the sentence when the cause is conviction of felony, and in all other cases when there is an unreasonable lapse of time before the commencement of the action.
When a married couple has lived separate and apart for a period of five years or more without cohabitation, either spouse may sue for a divorce which shall be granted on proof of the required separation.
Annulment in Idaho
- 1. Underage - that the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his/her parents or guardian, or persons having charge of him/her; unless, after attaining the age of consent, such party for any time freely cohabits with the other as husband or wife;
2. Bigamy - that the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;
3. That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife;
4. That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife;
5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; or
6. Impotence - that either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable.
- 1. For the cause of marrying before attaining the age of consent; by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such non-aged person, at any time before such married minor has arrived at the age of legal consent;
2. For the cause of bigamy; by either party during the life of the other, or by such former husband or wife;
3. For the cause of unsound mind; by the injured party, or relative or guardian of the party of unsound mind, at any time before the death of either party;
4. For the cause of fraud; by the injured party, within four years after the discovery of the facts constituting the fraud;
5. For the cause of force; by the injured party, within four years after the marriage;
6. For the cause of impotence; by the injured party, within four years after the marriage.
Idaho Property Division
Community property must be assigned by the court in such proportions as the court deems just, after examining the facts of the case and the condition of the parties. Due consideration is given to the following factors.
- Duration of the marriage;
- Any ante-nuptial agreement of the parties, (provided that the court has no authority to amend or rescind the agreement):
- The age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse;
- The needs of each spouse;
- Whether the apportionment is instead of or in addition to maintenance;
- The present and potential earning capacity of each party; and
- Retirement benefits, including but not limited to social security, civil service, military and railroad retirement benefits.
All property of either the husband or the wife owned by him/her before marriage, and that acquired afterward by either by gift, bequest, devise or descent, or that which either he/she shall acquire with the proceeds of his/her separate property, by way of moneys or other property, shall remain his or her sole and separate property.
The separate property of the husband is not liable for the debts of the wife contracted before the marriage. The separate property of the wife is not liable for the debts of her husband, but is liable for her own debts contracted before or after marriage.
All other property acquired after marriage by either husband or wife is community property. The income, including the rents, issues and profits, of all property, separate or community, is community property unless the conveyance by which it is acquired provides or both spouses, by written agreement specifically so providing, declare that all or specifically designated property and the income, from all or the specifically designated property shall be the separate property of one of the spouses or the income from all or specifically designated separate property be the separate property of the spouse to whom the property belongs. Such property shall be subject to the management of the spouse owning the property and shall not be liable for the debts of the other member of the community.
Property conveyed by one spouse to the other shall be presumed to be the sole and separate estate of the receiving spouse and only the spouse conveying the property needs to execute and acknowledge the deed or other instrument of conveyance, This is provided, however, that the income, including the rents, issues and profits, from this property shall not be the separate property of the receiving spouse unless this fact is specifically stated in the instrument of conveyance.
If a homestead has been selected from the community property, it may be assigned to either party, either absolutely, provided such assignment is considered in distribution of the community property, or for a limited period, subject in the latter case to the future disposition of the court; or it may be divided or be sold and the proceeds divided.
If a homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the other spouse.
Maintenance and Spousal Support
The maintenance order shall be in such amounts and for such periods of time that the court deems just, after considering all relevant factors which may include the following:
- The financial resources of the spouse seeking maintenance, including the marital property apportioned to said spouse, and said spouse’s ability to meet his/her needs independently;
- The time necessary to acquire sufficient education and training to enable the spouse seeking maintenance to find employment;
- The duration of the marriage;
- The age and the physical and emotional condition of the spouse seeking maintenance;
- The ability of the spouse from whom maintenance is sought to meet his/her needs while meeting those of the spouse seeking maintenance;
- The tax consequences to each spouse; and
- The fault of either party.
Child Custody and Support
In an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children. In doing so, the court shall consider all of the following relevant factors:
- The wishes of the child’s parent(s) to his/her custody;
- The wishes of the child as to his/her custodian;
- The interaction and interrelationship of the child with his/her parent(s), and his/her siblings;
- The child’s adjustment to his/her home, school, and community;
- The character and circumstances of all individuals involved;
- The need to promote continuity and stability in the life of the child; and
- Domestic violence, whether or not in the presence of the child.
In any case where the child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangement is in the best interests of the child.
Access to records and information pertaining to a minor child including, but not limited to, medical, dental, health, and school or educational records, shall not be denied to a parent because the parent is not the child’s custodial parent. However, information concerning the minor child’s address shall be deleted from these records, if the custodial parent has advised the records custodian in writing to do so.
Joint custody awards custody of the minor child(ren) to both parents and provides that physical custody shall be shared by the parents in such a way as to assure the child(ren) of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents as the court determines is for the best interests of the minor child(ren). If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.
Joint physical custody awards each of the parents significant periods of time in which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way to assure the child a frequent and continuing contact with both parents but does not necessarily mean the child’s time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent. The actual amount of time with each parent shall be determined by the court.
Joint legal custody is a judicial determination that the parents are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children.
There shall be a presumption that joint custody is in the best interests of a minor child(ren) unless one of the parents is found by the court to be a habitual perpetrator of domestic violence.
Allegations of Abuse:
When, in any divorce proceeding or upon request for modification of a divorce decree, an allegation of child abuse or child sexual abuse is made, implicating either party, the court shall order that an investigation be conducted by the department of health and welfare. A final award of custody or visitation may not be rendered until a report on that investigation is received by the court. That investigation shall be conducted by the department within 30 days of the court’s notice and request for investigation.
The court may direct an allowance to be made to the parent of a child, out of its property for its past or future support and education, on such conditions as may be proper, whenever such direction is for its benefit. When implementing and construing statutes regarding child support, the court must resort first to the community property, then to the separate property of either party.
In a proceeding for divorce or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his/her support and education until the child is eighteen years of age, without regard to marital misconduct, after considering all relevant factors which may include the following:
- The financial resources of the child;
- The financial resources, needs, and obligations of both the custodial and noncustodial parents which ordinarily shall not include a parent’s community property interest in the financial resources or obligations of a spouse who is not a parent of the child, unless compelling reasons exist;
- The standard of living the child enjoyed during the marriage;
- The physical and emotional condition and needs of the child and his or her educational needs;
- The availability of medical coverage for the child at reasonable cost as defined by applicable statute (§ 32-1214B); and
- The actual tax benefit recognized by the party claiming the federal child dependency exemption.
In a proceeding for the support of a child or a minor parent the court may order the parent(s) of each minor parent to pay an amount reasonable or necessary for the support and education of the child born to the minor parent(s) until the minor parent is eighteen years of age, after considering all relevant factors which may include the following:
- The financial resources of the child;
- The financial resources of the minor parent;
- The financial resources, needs and obligations of the parent of the minor parent;
- The physical and emotional condition and needs of the child and his or her educational needs; and
- The availability of medical coverage for the child at reasonable cost as defined by applicable statute (§ 32-1214B).
Notwithstanding any other provision of law to the contrary, a court shall vacate a child support order if the court finds, by clear and convincing evidence, that the moving party is not the biological father of the child who is the subject of the support order, and that the party receiving the support knowingly and intentionally misrepresented the paternity of the child to the paying father. The father must file the motion to vacate the order within two years of discovery of evidence that he is not the biological father of the child. If the order is vacated, the father may bring an action in court against the receiving parent or the true biological father of the child to obtain restitution for child support previously paid pursuant to the order.
The court may, in its discretion, on the motion of either party, enter a decree of legal separation, providing for custody of children, division of property, payment of debts, payment of child support, and payment of spousal support as set forth in the statutes governing domestic relations.
The earnings and accumulations of the wife and of her minor children living with her or in her custody, while she is living separate from her husband are the separate property of the wife.
When a husband and wife live in a state of separation, without being divorced, any court of competent jurisdiction, upon application of either spouse, if he/she is an inhabitant of Idaho, may inquire into the custody of any unmarried minor child of the marriage, and may award the custody of such child to either, for such time and under such regulations as the case may require. The decision of the court must be guided by the welfare of the child.
Links to Idaho State Resources
- Idaho Child Support Guidelines
Link to word doc detailing Idaho child support guidelines. Current as of July 1, 2011.
- Idaho Statutes, Title 32 – Domestic Relations
Links to text of Idaho laws dealing with marriage, annulment, divorce, spousal property, child support and custody.
- Idaho Supreme Court Self-Help Center – Family Law Forms
Links to Interactive Divorce forms and packets.