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Idaho does not offer a summary divorce, but a divorce may be granted upon the default of the respondent, and its no-fault and uncontested divorce routines may ease the pain and suffering of divorce. Most spouses who file their own divorce without a lawyer, file an uncontested divorce where both spouses are in cooperation and sign a Marital Settlement Agreement.
No-fault grounds for divorce are irreconcilable differences or living separate and apart for a period of five years or more without cohabitation. Fault grounds are adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, and conviction of felony, and permanently insanity.
The filing spouse must live in Idaho for at least six weeks.A divorce is not granted unless the petitioner is a resident of the state for six full weeks before filing for divorce in Idaho. The divorce is filed in the county in which either spouse resides.
For a divorce in a marriage without children, the petitioner files the Family Law Case Information Sheet, Complaint for Divorce, Summons with Orders, Affidavit of Service with Orders, and Vital Statistics Certificate of Divorce. For a divorce in a marriage with children, he or she files the appropriate forms above filed in a marriage without minor children plus, an Affidavit Verifying Income, a Parenting Plan, and a Shared or Split Custody Worksheet or Standard Custody Worksheet.
The petitioner files the divorce papers with the Office of the Clerk of Court in his or her district. The petitioner keeps a copy for his or her personal records; the other copy is served on the respondent, which means the petitioner must provide the opposing party with copies of all documents.
Parents of minor children exchange an Affidavit of Income and complete a Child Support Worksheet, which the court uses to calculate child support if the parents are unable to reach an agreement on an amount that the court feels is appropriate.
Simply stating irreconcilable differences is a route to a no-fault divorce; it alerts the receiving spouse the other party wants to the end the marriage. The petitioner presents the divorce papers to the respondent and completes an Acknowledgement of Service and signs it in front of a notary public and then returns it to the Court Clerk. This proves to the court that the respondent is aware of the divorce taking place.
Two more forms are required: the Certificate of Divorce, which the petitioner obtains from the court clerk, and the Family Law Case Information Sheet. There are four more forms which are only required of parents of minors: Order to Attend Divorce Orientation and Parenting Workshop, Child Support Affidavit, Child Support Worksheet, and Parenting Plan. A Parenting Plan should be attached to the Complaint for Divorce as well as turned in by itself. Here is more information regarding the process of filing uncontested divorce papers in Idaho.
When both spouses agree on the terms and conditions of the divorce, they can file a Marital Settlement Agreement before the case proceeds to the hearing stage. The agreement deals with all the issues in the divorce. Idaho requires that there be a wait of 20 days before the court grants a final entry of divorce. When couples cannot reach an agreement, however, the case goes to trial, where the judge decides all the issues. This rarely happens as most divorcing couples try to eliminate the element of surprise that comes with any court ruling.
The parties wait at least twenty days from the time the spouse is served until the divorce can be finalized, and they attend the court ordered Parenting Workshop if there are children. After this, the petitioner completes the Sworn Stipulation for Entry of Decree of Divorce, in addition to Decree D8-1 (if the couples has children) and Decree D 8-3 (if they do not). Learn the best ways to save money when doing your own divorce in Idaho.
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The court encourages the spouses to settle property and debts, but if they cannot agree, then the court decides.
Idaho is a community property state, and it uses the dual property model. The appreciation of separate property is separate. In a divorce, community property is generally divided equally between the spouses, but each spouse keeps his or her separate property.
In order to make a decision about the division of assets and liabilities, the court considers all the facts of the case and the condition of the parties. Then the court orders a just and equitable division of property acquired during the marriage "… [u]nless there are compelling reasons otherwise, there shall be a substantially equal division in value between the spouses." In this, the court considers the duration of the marriage; any antenuptial agreement of the parties; the age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse; the needs of each spouse; any maintenance; the present and potential earning capability of each party; an retirement benefits, including, but not limited to, social security, civil service, military and railroad retirement benefits.
All marital property is divided in a 50-50 fashion unless agreed to otherwise by the divorcing spouses; everything "in the pot" is distributed equally to each spouse. In this, the court gives the spouses assets of equal value.
As in other jurisdictions, divorcing couples normally sell the marital home and divide the profits, or sell the home to one party and refinance, or the custodial parent occupies the house until the last child leaves school and then sell it.
Retirement benefits are marital property when the worker meets all the requirements for payout. This is called vested. In Idaho, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension. They are either Defined Contribution Plans (DC), such as a 401(k), or Defined Benefit Plans (DB), which is the company pension. That part of a pension accumulated during a marriage is community property and subject to distribution. When spouses share in each other's pension plan, a Qualified Domestic Relations Order (QDRO) must be prepared. The QDRO spells out the terms and conditions of the pension distribution.
Spousal support is awarded on a case-by-case basis, and either party may seek spousal support. Either the spouses or the courts decide the amount and duration of support (if any).
When the court decides that one spouse needs financial support from the other, it grants a request for maintenance. This provides the petitioning spouse with basic living expenses in order to maintain the lifestyle enjoyed during the marriage. In doing this, the court considers if the spouse seeking maintenance lacks sufficient property to provide for his or her basic living expenses, and/or is unable to find a suitable job.
The amount and duration of maintenance payments depend upon the finances of the spouse seeking maintenance, the time a spouse needs for education and training for a job that will allow him or her to be self-supporting, the duration of the marriage and the quality of life the spouse enjoyed during the marriage, the age and the physical abilities of the spouse seeking maintenance, the ability of the spouse making maintenance payments to meet their own needs while meeting those of the spouse receiving maintenance payments.
Courts may order temporary alimony, which is given when one spouse needs support to live during the period between filing for divorce and final dissolution; short-term alimony, granted when one spouse needs to obtain an education or skills to become employable and long-term alimony, which may be granted to a spouse who has significant needs, and is usually reserved for lengthy marriages.
In Idaho, "the court may award either joint physical custody or joint legal custody or shared custody based on the court's determination of the best interests of the child or children," which means the court always considers the children's best interests before anything the parents may want.
Idaho courts strive for parents to share as equally as possible in the custody of a child. In many, if not most, situations, joint custody is preferred since both parents share the rights and responsibilities of raising the child. Joint custody encourages parental cooperation in childrearing.
Idaho child custody decisions consider are based on a number of factors, including the child's wishes or preferences; the child's adjustment to his or her home, school, and community; the child's rapport with his or her parents and siblings; the stability in life and continuity of interaction with his or her parents; the parents' wishes or preferences; the parents' mental and physical health and moral character; the history of domestic violence or child abuse by either parent; and parental disability.
The court does not decide custody based on the gender of the parents; there is no maternal preference.
Sometimes a third party, such as grandparents, may be awarded custody when the court determines that both parents are detrimental to the best interests of the child.
Courts enjoy wide latitude in determining visitation.
Both parents provide financial support for all of their minor children. Support is based on the Idaho Child Support Guidelines, which helps the court figure out how much a parent should pay.
Idaho uses the Income Shares model, in which a child receives the same proportion of parental income that he or she would have been received if the parents had not divorced because in an intact household, both parents pool their income and spend it for the benefit of all household members, including any children. It considers the gross income of both parents and then establishes the proportion each contributes and divides it among their minor children.
If the noncustodial parent earns more than the custodial parent, the noncustodial parent assumes a higher share of the child's support, but if the noncustodial parent earns less than the custodial parent, he or she pays a smaller share of the support.
Sometimes, after calculating support, courts permit adjustments up or down that are called deviation factors. Courts consider extraordinary expenses, independent income, seasonal fluctuation in parents' income, special needs as well "any other reason that should be considered to make child support more equitable." Likewise, extraordinary expenses can be either add-ons, where the expense is added to the support payment paid by the noncustodial parent, or a deduction, where it is subtracted.
Sometimes, after calculating support, courts permit adjustments up or down that are called deviation factors. Courts may consider extraordinary expenses, independent income, seasonal fluctuation in income.
A parent may always request that a child support order be modified to meet changes in the needs of the children, such as additional medical expenses. The court may modify a child support order to reflect changes in a parent's ability to pay, such as when a parent losses income.
The filing spouse serves the divorce papers on the receiving spouse. This means copies of the complaint and all other documents submitted in the initial filing with the Clerk's Office. Personal service is the preferred method of service, which requires that the papers be delivered in person. Most people hire a professional process server for this task.
After delivery of the documents, the process server returns an Affidavit of Service, which lists the name and address of the person served, as well as the address where the documents were handed over. The petitioner must file this with the court to prove the divorce papers were properly served.
When the spouse is missing, the law permits service by publishing notification of the divorce complaint in a local newspaper.
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