ASHLEY R. MARELIUS

Divorce can be a stressful and confusing time. It is important to understand the process and what to expect as you dissolve your marriage.

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If you are served with divorce papers it is important to contact an attorney as soon as possible. You have 21 days from the day you are served to file a response. If you do not, an order will be entered without notice to you.

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Once a divorce becomes contested (a response is filed), the judge will send you and your spouse to mediation. There are also a number of documents you will be required to disclose. Failing to do so can result in an order that limits your evidence at trial or requires you to pay your spouse’s attorney fees.

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In each case, the judge will make a decision about how to divide your assets and debts. This includes real property (houses, investment property), personal property (furniture, vehicles), and financial accounts (retirement, stocks, bonds, bank accounts).

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Idaho is a community property state. Simply put, this means that, except for a few specific instances, anything purchased or acquired during marriage, including debts are either community property or community debts and belong to both you and your spouse. Anything that you owned prior to the divorce, with a few exceptions, is your separate property and cannot be awarded to your spouse in a divorce.

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Under Idaho Code §32-712, community property will be divided in a substantially equal manner. There are some exceptions to this in which one spouse may be awarded an unequal share of community property, assets, or debts.

If you and your spouse share minor children the court will enter a custody order that is in the best interest of the minor children as outlined in Idaho Code § 32-717.

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A child support order may also be entered in your case. In Idaho, child support is based on the income of you and your spouse, the number of overnights the children spend in each of your homes, the cost of insurance for your children, and the division of tax credits.

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Dividing your property and assets and ensuring your custody order is in the best interest of your children can be difficult to navigate on your own. We are here to help guide you through this transition with as little stress as possible.

Child custody is generally a proceeding in which legal custody, physical custody, residential care, and/or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. 

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Often time, parental disputes regarding the custody of child occur long before the parents ever seek legal intervention.

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A child custody proceeding is commenced when a parent, or prospective parent, files the initial document pertaining to a child with the court.

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It is important for parents to understand the differences between (1) rights and obligations, regarding child custody and parenting time, that have been previously established by the court; (2) those that exist by operation of law; and (3) the interaction and impact of each. Generally speaking, the sooner a parent takes legal action, the better their chances are in attaining a favorable outcome.

Child support can be established with or without a divorce or custody case.

In Idaho, child support is based on the income of both parents, the number of overnights the children spend in each of your homes, the cost of insurance for your children, and the division of tax credits.

 

Non-payment of child support can cause serious issues. Your driver’s license or passport may be suspended, your tax returns or bank accounts seized, or in some instances you may face jail time for non-payment. If you find yourself in this situation it is important to contact an attorney to help you mitigate possible sanctions for non-payment as soon as possible.

Paternity is the consideration of rights of a father in cases where the parties were never married, no father is listed on the birth certificate, paternity has not been established, and the only undisputed fact is that the mother gave birth to a child. In this scenario, failing to commence a child custody proceeding, can have a number implications both in regard to financial support, as well as time-sharing and access to the child.

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Paternity can be established in three (3) ways in the State of Idaho, voluntary acknowledgment at the time the child is born, DNA testing, or court order. A birth certificate is not a legal finding of paternity in the State of Idaho.

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Until a custody schedule is established, you may have no legal authority providing you parenting time with your children. This means you have no way to ensure that the other parent allows you to spend time with your children.

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In order to establish a custody schedule you must file an action for paternity (if it has not been established), custody, or both.

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The court will enter a custody order that is in the best interest of the minor children as outlined in Idaho Code § 32-717.

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Under Idaho Law custody is defined in two (2) ways: legal and physical.  Legal custody is the decision-making rights of each parent. Physical custody is the actual time each parent shares with their children.

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Under Idaho Code § 32-717B there is a presumption that parents should have joint custody of their children. This does not, however, mean that each parent shall have equal time with the children.

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This presumption can be overcome if one parent is a habitual perpetrator of domestic violence as defined by Idaho Law.

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A child support order may also be entered in your case. In Idaho, child support is based on the income of both parents, the number of overnights the children spend in each of your homes, the cost of insurance for your children, and the division of tax credits.

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A civil protection order is a legal document that is used to prohibit an aggressor’s access to their victim. This document is issued by a civil court and orders the aggressor to stop contact with their victim and to stay away from their victim as well.

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Any person who feels they are in danger of or have experienced domestic violence from someone close to them can file for a civil protection order pursuant to Idaho Code § 39-6310.

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However, to qualify for a domestic violence protection order this aggressor must be:

• A current or former spouse;

• A relative;

• A roommate;

• Someone they share a child with; or

• A dating or intimate partner.

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To petition for a civil protection order, the victim or someone close to the victim must submit a document to the court that details why they are seeking this order. Additionally, the document asks the court to enter an order of protection for a certain period of time. Once this petition is filed, the court will grant a temporary order for 14 days or until a hearing can be held to fully hear the issue.

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A copy of the petition is served to the alleged aggressor who has the legal right to go before the judge and speak at the hearing. The alleged aggressor can choose to argue against the order or allow it to be put in place. If they choose to fight the order, the victim is responsible for proving why the order is necessary.

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You may also seek a civil protection order to protect you from stalking, telephone threats, or malicious harassment.

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You do not have to have a qualifying relationship with the aggressor to qualify for a protection order under Idaho Code §18-7907.

Where the ‘commencement’ of a ‘proceeding’ has resulted in a ‘child custody determination’, it may be necessary for a parent to seek modification. Similar to initial custody determinations, modifications must also be considered in terms of what is best for the child. However, legal grounds for modification of custody are limited to situations where there is a substantial, material, and unexpected change. In general, any custodial arrangement that causes detriment to a child will serve as ground for modification.

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While for many parents modifying custody can be a suitable and effective approach, it is also important to know that modifications can be far more difficult to attain. Consequently, parents are generally much better off in ensuring that initial custody determinations are properly evaluated and/or defended, and that custody orders are properly established. Parents should not assume that they can always go back and fix a problem that should have been addressed in a prior proceeding. In short, early intervention is best.