Idaho Separation Agreement Law

Divorce – Separation Agreements – Idaho

Note:  This summary is not intended to be an all inclusive discussion of the law of separation agreements in Idaho, but does include basic and other provisions.

General Summary:

Idaho is a community property state.  The property rights of husband and wife will be determined by the court, unless there is a marriage settlement agreement entered into prior to or during marriage containing stipulations contrary to the provisions of the statutes.  Marriage settlement agrements must be in writing, executed and acknowledged in the same manner as conveyances of land. If the agreement is unrecorded it is still binding between the parties absent intervening rights.

An Agreement “incorporated” but NOT “merged” into the final divorce decree, has been examined by the court and referenced for approval but it maintains its separate existence and may be enforced as a contract between the parties.


Title  32
Domestic Relations
Chapter 9
Husband and Wife – Community Property

PROPERTY RIGHTS GOVERNED BY CHAPTER: The property rights of husband and wife are governed by this chapter, unless there is a marriage settlement agreement entered into during marriage containing stipulations contrary thereto.  Sec. 32-916.

FORMALITIES REQUIRED OF MARRIAGE SETTLEMENTS: All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as conveyances of land are required to be executed and acknowledged or proved.  Sec. 32-917.

MARRIAGE SETTLEMENTS — RECORD: When such contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated which is granted or affected by such contract.  Sec. 32-918.

MARRIAGE SETTLEMENTS — EFFECT OF RECORD: The recording or nonrecording of such contract has a like effect as the recording or nonrecording of a conveyance of real property.  Sec. 32-919.

MARRIAGE SETTLEMENTS — CAPACITY OF MINOR: A minor capable of contracting marriage may make a valid marriage settlement.  Sec. 32-920.

Case Law:

When parties enter into a contract, they assume not only the contractual duties imposed by their agreement, they assume a duty to act in good faith. Cuddy Mountain Concrete v. Citadel Construction, Inc., 121 Idaho 220, 230, 824 P.2d 151, 161 (Ct.App. 1992). This premise applies not only to commercial contracts, it also applies to other civil contracts including marriage dissolution agreements.

The district court may modify provisions of a decree for the support of the wife, “* * * and the court may, from time to time, modify its orders in these respects.” I.C. § 32-706; Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964); “* * * but this authority to modify cannot be extended to modification of an agreement of the parties; for only when there has been a merger of the agreement into the decree itself does the court have the authority to make such a modification, and any modification is then of the court’s order and not of the agreement. Bainbridge v.Bainbridge, 75 Idaho 13, 265 P.2d 662.” Kimball v. Kimball, 83 Idaho 12, 15, 356 P.2d 919, 921 (1960).

Merger is the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued upon. The question as to what extent, if any, a merger has occurred, when a separation agreement has been presented to the court in a divorce action, arises in various situations.  Bainbridge v. Bainbridge, 75 Idaho 13, 265 P.2d 662.” Kimball v. KimballKimball v. Kimball, 83 Idaho 12,15, 356 P.2d 919, 921 (1960).

In revewing a Property Settlement Agreement, it is first necessary to determine whether the parties and the Court intended a merger. If the agreement is expressly set out in the decree, and the court orders that it be performed, it is clear that a merger is intended. On the other hand, the parties may intend only to have the validity of the agreement established, and not to have it become a part of the decree enforceable as such.  Whether or not a merger is intended, the agreement may be incorporated into the decree either expressly or by reference. If a merger is not intended, the purpose of incorporation will be only to identify the agreement so as to render its validity res judicata in any subsequent action based upon it.  If a merger is intended, the purpose of incorporation is, of course, to make the agreement an operative part of the decree. * * *'” Kimball v. Kimball, 83 Idaho 12, 15, 356 P.2d 919, 921 (1960)

Inside Idaho Separation Agreement Law