Divorce – State FAQ – Idaho
Residency requirements, venue and procedures
Q: How long must I have lived in Idaho prior to filing for divorce in an Idaho court?
A: The plaintiff in an action for divorce in the State of Idaho must have been a resident of the state for at least six (6) full weeks immediately prior to the filing of the action for divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Idaho, proper venue for the divorce action is the District Court. The action should be filed in the county where the defendant resides, or the county where the plaintiff resides if the defendant is not a resident of the State of Idaho.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: There is a mandatory waiting period of twenty (20) days from the date of the date of commencement of the action and service of process to the granting of the divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Idaho. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Idaho?
A: A divorce may be granted in Idaho based upon the following grounds:
2. Extreme cruelty
3. Willful desertion
4. Willful neglect
5. Habitual intemperance
6. Conviction of a felony
7. Permanent insanity
8. Living separate and apart without cohabitation for 5 years
9. Irreconcilable differences
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: When a divorce is granted, the court may award alimony to a spouse if it finds that the spouse seeking alimony lacks sufficient property to provide for his or her reasonable needs, and is unable to support himself or herself through employment. The order granting alimony shall be in an amount and for a time period that the court deems just, after consideration of the following factors:
1. The financial resources of the spouse seeking support
2. The time necessary to acquire sufficient education and training to enable the spouse to find employment
3. The duration of the marriage
4. The age and physical and emotional condition of the spouse seeking support
5. The ability of the spouse from whom support is sought to meet his or her needs while meeting the needs of the spouse seeking support
6. The tax consequences to each spouse
7. The fault of either party
Distribution of property
Q: On what basis does the court decide how marital property is divided?
A: In Idaho, the court will divide the all of the community property equally after setting aside to each spouse that spouse’s separate property, unless there exists compelling reasons to divide the property otherwise. Some of the factors the court will examine in making a determination as to whether to divide the community property equally include:
1. The duration of the marriage
2. Any antenuptial agreement
3. The age, health, occupation, amount and sources of income, vocational skills, employability and liabilities of each spouse
4. The needs of each spouse
5. The present and future earning capacity of each spouse
6. Retirement benefits of each spouse
7. Any other relevant factor
Q: What is “separate property”?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court shall determine the issue of child custody based upon the best interests of the child. There is a presumption that joint custody is in the child’s best interests. The factors the court will consider in determining the best interests of the child may be viewed in the Divorce Information section of the Idaho Divorce Main Page.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The court may order either or both parents to pay an amount reasonable and necessary for the support of a minor child until that child’s eighteenth birthday after considering the following factors:
1. The financial resources of the child
2. The financial resources of the parent
3. The physical and emotional condition and needs of the child and his or her educational needs
4. The availability of medical coverage for the child.
The State of Idaho has established child support guidelines which set the presumptive correct amount of child support to be awarded. The Court may deviate from the Guidelines in unusual circumstances.