Definition of Legal Separation in Idaho
In the context of family law, legal separation in Idaho has a specific meaning. It can be broadly described as a judicially sanctioned legal process through which a couple who is married enters into an agreement to live apart. One of the most common questions I hear from clients seeking legal separation is: "how is legal separation different than divorce?" The answer is that a legal separation takes a period of time to adjudicate but does not absolutely terminate the marital bond of the parties. At the conclusion of the legal separation proceedings, the parties still remain legally married; whereas, a party to a divorce is completely divorced from the other party and free to marry again unless the divorce was dismissed or set aside by the Court.
Pursuant to Idaho Code § 32-702 , legal separations can be technically filed by the spouse considering a separation from the marriage where the petitioning spouse states "that there are suitable and sufficient custody and support arrangements for any children of the marriage during the pendency of the action and until final disposition therein, so that no further delay will result by reason of the failure of the party to make such arrangements." Idaho Code § 32-706 requires a 3-month waiting period after filing the petition for legal separation. This 3-month waiting period gives the parties time to negotiate the terms of the legal separation and prepare their case so it may be heard and concluded at the expiration of the 3-month waiting period. It is noteworthy that a legal separation action is conducted in the same manner as a divorce action and is usually heard at the same time as a divorce action of one of the parties to the separation proceeding.
How to File for Legal Separation
The process of filing for legal separation in Idaho begins by filing a petition with the district court in the county where you or your spouse have resided for at least six weeks. A legal separation generally requires the same declarations and other information as a divorce. This includes setting forth the dates of marriage and separation, grounds for separation, and a statement of personal jurisdiction (a statement of just how long either spouse has resided in Idaho and in which state they were married, if married elsewhere). Additionally, you must complete an affidavit of residency as well as a financial declaration, and file both with an affidavit of service, deposit, and a motion of application for services by publication, effectively notifying the court of your intent to separate.
The application for temporary orders is the first major step of the separation process. If there are children from the marriage the application includes child related issues (custody, support, visitation, etc.). The judge then decides on a temporary basis the issues noted above, and others, until a final settlement can be reached.
Much like the process in a divorce proceeding, the parties will then move forward with discovery, temporary orders, mediation, and settlement conferences until the case can be resolved, or decided at trial. It is important to note that as of 2013, divorce "education classes" are now required for the parties and children involved in the case.
Conditions and Reasons for Legal Separation
To obtain a legal separation in Idaho, at least one of the spouses must have been a resident of the state of Idaho for six weeks immediately preceding the filing of the petition for separation. Both spouses must file the petition for separation with the district court in the county where they reside. The district court may have jurisdiction in only one county, or it may share jurisdiction with other counties. A separation agreement is not required but if the spouses have entered into an agreement, they may incorporate the terms into a Separation Order. In the Separation Order, the parties may agree on any of the following aspects: Legal separation proceeding is very similar to the divorce process. Both proceedings start with one spouse filing a petition for legal separation. Then, the court considers the petition, grants the legal separation, and finally enters the Separation Order defined above.
Property and Liability Division
During a legal separation in Idaho, assets and debts acquired during the marriage are subject to division between both spouses. Unlike a divorce, Idaho does not make a distinction of having a community property state or an equitable distribution state. The Unsupported Marriage and Divorce in Idaho statute states that a court must grant a separate property and debt order. This order divides community and separate property, although the court will ascertain the community property before making its decision. Quasi-community property includes property that if the spouses would have ended the marriage in the state where they live, but the spouses obtained the property while residing in another state. Quasi-Community property means that a state may award it to one spouse, but a state that is another state where a spouse lives may also find that the property belongs to the other spouse.
Separate property is assigned to the spouse that owned it before the marriage, while property acquired by either spouse during the marriage is community property, where each spouse owns an equal portion of the property. In Idaho, there are two main approaches to divide the assets. Equitable division requires a fair and just division of community property. On the other hand, equal division is a presumption that each spouse has a 50 percent share of the property. Consequently, courts may deviate from the equal division standard if the assets most likely to be distributed amount to only a small share of the marital estate. Thus, the court may grant other assets in the marital estate as long as the distribution is equal.
Child Custody and Support Concerns
Children’s issues such as child custody, visitation, and support are also handled in a legal separation in Idaho. In fact, the process of separating one from the other is often no different than breaking up a marriage. The Idaho courts will usually enter a temporary order for child custody and parent time between the parents during any legal separation action. Although not all counties follow this practice, most enter a temporary order at the time of initial filing.
Parents should consider the issue of child support, which automatically arises upon separation in Idaho, whether or not an order for support is entered with the court. Idaho law automatically deems children born to or adopted by the parties to be part of the action and subject to the court’s custody and support jurisdiction. Idaho Code § 32-1400 et. seq . This means that parents can have their divorce petitions consolidated with the legal separation action at a later date.
The court will apply the Idaho Child Support Guidelines to child support issues in the same manner as it would with a divorce.
The only difference is that a temporary order for child support must be entered within 20 days of the filing of the petition for separation. The court will then set a final hearing on the issue of child support and make an order retroactive to the date of legal separation.
Once a legal separation is entered, either parent may subsequently file a motion to convert the legal separation to a divorce. The court will treat the matter as if it were a divorce action between the parties and the same statutory provisions apply. However, a party is limited to appealing only the issues in the decree of legal separation and may not go back and litigate any other claims in the matter.
Rights and Responsibilities of a Separating Couple
For many people considering separation, the issue of what happens to finances is the most pressing concern. For married couples who separate, either legally or informally (without a legal court process), the obligations to pay debts continue. If, however, the marriage is a legal separation, the rights and obligations with respect to money matters may change.
While one spouse may be responsible for all debts going into the separation, which would also have been his or her responsibility if you all have stayed married, the expenses of the spouses during the separation may be divided among them – now placing the bulk of expenses on the other spouse. For example, if one spouse stops working and at the same time, the other spouse makes a little more money (such as by taking a few overtime hours), it may be appropriate to order that the spouse who is now unemployed contributes less to the family pot. The purpose of this is not to punish the spouse who may be making more money but rather to allow your family to live as close to the manner they lived when you were married as possible. For example, it is not appropriate that spouse A lives on the same salary as spouse B while both are now responsible for the children but spouse A earns 50% more than spouse B.
The same holds true for child support, alimony and any other expenses. While legally, the person who incurs a debt or any other obligation is the person who is financially responsible for that obligation when you are married, if you or your spouse actually pays that obligation, that spouse also has a right to reimbursement from the other. For example, if spouse A is responsible for paying the credit card bill, spouse A has the right to payment of that obligation even now that spouse A and spouse B are not living together. A decree of separation should address these important issues.
Reconciliation or Proceeding with Divorce
If reconciliation is successful, you and your spouse may dismiss the legal separation and avoid a divorce. If the legal separation decree included terms of the couple’s separate lives (or joint lives if it was an agreed or stipulated decree) and you want to have a subsequent divorce decree enforce those terms, then in many counties in Idaho, you will need to file a motion to have the legal separation decree incorporated into the divorce decree. The court does not need to have another "trial" and look at all the evidence for custody, visitation, child support, property issues, etc. You simply may want the court to incorporate the legal separation terms so that the separation decree is now enforceable by the same court.
If a couple reconciles before a divorce decree has been issued by the court, they can also have the separation decree dismissed and become divorced by agreement. A couple in this scenario may decide that they want to keep the benefits of their separation decree, but determine that because of the passage of time, it has become appropriate to have a divorce decree instead. Idaho Code § 32-716(2) allows the couple to file a motion for entry of the decree, which is then distributed to all parties. If no objections are filed within 14 days, a divorce decree may then be obtained. This is the same process as a couple who has reconciled before trial.
If, on the other hand, the parties are no longer interested in keeping their separation decree, Idaho Code §32-717 allows the court to rescind the legal separation decree. This could happen because a party has remarried (When a party remarries in Idaho, that remarriage violates the legal separation decree, and the separation will automatically be converted to a divorce decree by operation of law.). It could also happen if the parties were no longer able to meet the separation requirements of Idaho Code § 32-706. The legal separation decree will then be set aside, and the couple will be divorced.
Pros and Cons of Legal Separation
There are several potential advantages and disadvantages to legal separation to consider. Most people think of separation as a positive (or at least a not-so-bad) thing. However, it’s important to realize that separation is just a step along the way to divorce. Rejecting one’s marriage – when the party reaches the point that separating is the best or only option – and moving on are good things. The benefits, however, may come with a price.
Statutorily, a party to a legal separation has some advantages over a party to a divorce. The date of separation is the date on which the parties separate with the intent to remain separate. All property acquired after this date, with limited exceptions, is not community property. The parties to a divorce must divide all property as owned together at the time of trial or the entry of Final Judgment, whichever is earlier. In contrast, the parties to a legal separation own property in the same manner as married couples up until the date of the legal separation hearing (some restrictions apply). After the legal separation is entered, the parties’ property is no longer jointly owned by both spouses.
In many cases, the practical effect of this is to simply delay the property division process – to give the parties more time before the court rules on the issue of property division. Of course, this delay comes at the expense of time and cost. In contrast, the court will decide the matter of property division in a divorce. A party to a legal separation must decide to file for divorce at some point. The legal separation is, therefore, a temporary status of the parties where the property is owned in a manner similar to marriage, but the parties are no longer living together as husband and wife.
On the other hand, there are also several disadvantages to a legal separation . Perhaps the most significant disadvantage is the fact that, in Idaho, the parties who are legally separated are still married. Under Idaho law, a party to a legal separation may not remarry without first obtaining a divorce from the separating spouse. Also, for the purposes of federal immigration laws, a lawful permanent resident’s status is conditional for the first two years of being in the U.S. After two years, the resident must file additional documentation to remove the two-year condition. The resident spouse in a legal separation cannot file the additional documentation without the separating spouse’s consent. Even if the separating spouse won’t sign the documents, the non-separating spouse may be entitled to citizenship in the U.S. (in some circumstances) after a legal separation but may not pursue the citizenship process (without the separating spouse’s consent).
In general, the couple should choose a legal separation if:
- Important property, business, banking, or tax advantages will be lost by a divorce.
- The husband or wife needs health insurance coverage but cannot obtain health insurance in another way without sacrificing essential needs.
- One spouse will lose Social Security or pension benefits if he/she files for divorce.
- There are minor children and the couple wishes to test the waters to see if parenting issues can be resolved before making the long term decision to divorce.
In general, legal separation may not be the best choice if:
- There are no foreseeable benefits from maintaining the marital status.
- The couple would not save money or become subject to better tax treatment.
- The couple’s insurance companies will not cover the separation.
- There is a new intimate relationship and marriage is planned within 90 days of the legal separation.