Family Law

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Family Law – Divorce

Marriage is the most important personal commitment that most of us are likely to make in the course of our lives. It is therefore hard to admit that his or her marriage has failed. I have personally faced that decision and therefore know, from personal experience, the difficulties that this involves.

For that reason, I can honestly say that I know what people who are considering or getting a divorce are going through. The process of a divorce consumes your time and energy. While the divorce is going on, it is hard to pay attention to your work or business.

I cannot make these problems go away, but I can help you minimize them by helping you to think through the issues and to decide where you want to be at the end of the divorce and how to get there. 


Divorce and family law litigation is unique in that the parties to a divorce or custody lawsuit frequently have to deal with each other for an extended period of time after the case is resolved. Moreover, the issues are more numerous, involving the division of property, possible awards of spousal support, child custody and child support. Some of those are very emotional issues in which both parties invest a lot of emotional energy. Contrast that with the typical personal injury litigation arising from an automobile accident in which the only real issue is frequently that of how much money the defendant will pay the plaintiff. The defendant’s insurance company and the defendant do not care, so long as the insurance company takes care of the claim. The parties usually had nothing to do with each other before the accident and will never see each other again after the lawsuit is resolved.

The proverbial problem in divorce cases is that both sides have to agree to (1) the property settlement, (2) the resolution of spousal support, (3) the schedule of physical custody of the children, and (4) the amount of child support all at the same time. A disagreement on any one of these issues precludes a final settlement of any of the others. Hence, prolonged litigation over child custody may so strain the financial resources of one side or the other that their perception of what they need from the property settlement or by way of support may change. In addition, there is always the possibility that one party will hold out on one issue in an attempt to force a more favorable resolution of another issue.

And, in working through these issues, you have to bear in mind that, in those cases in which children are involved, you will still have an extended relationship with the other parent of your children while the children grow up. And, as they do, the outgrow custody orders just like they outgrow their clothes. Hence, the custody order in a decree of divorce or initial custody proceeding is frequently not the final word on that subject. This requires an acknowledgment that what works best for the children right now may not be what will work best for them in five more years.

Is Legal Separation Right for You?

A legal separation is similar to a divorce in that it fixes the parties’ rights to property and support. When appropriate, it also establishes a schedule for child custody and the amount of child support. It differs from a divorce in that it does not sever the bonds of marriage. One way of looking at it is that the parties go through all the troubles of a divorce, without the resulting benefit of actually being divorced.


Therefore, for there to be any benefit to a legal separation when the parties are otherwise ready to divorce, there has to be a compelling reason for maintaining the formality of the marital relationship. In the absence of such a reason, I do not recommend them. One reason that I found to be compelling in the past was to allow one spouse to continue receiving insurance benefits through the other. This way is still true from time to time, notwithstanding the Affordable Care Act. However, you should check the language of the insurance contract at issue to see whether benefits are allowed after legal separation. Another good reason for a legal separation, as opposed to a divorce, was to allow one spouse legally to remain in the United States when, if a divorce was granted, that would not be possible. 


Note that, as a practical matter, this can only be accomplished by consent of both parties. If either party wants a divorce, that will almost certainly be the result. Hence, a legal separation typically requires a basically amicable relationship between the parties in which they are willing to stay married to allow the other to obtain the benefits of the extended relationship.

How Will Our Property be Divided?

In the absence of legal fault (as defined by statute) on the part of one party, Idaho law requires a substantially equal division of all “community property”. In general terms, “community property” is the property acquired by parties during the terms of their marriage. This excludes property acquired by one party or the other by gift or inheritance during the marriage. Property owned by the parties before their marriage or acquired by gift or inheritance during marriage is called ‘separate property’.


Hence, for purposes of the division of property incident to a divorce, each party will receive his or her separate property, without regard to value. Then, the community property will be divided into two “substantially equal” shares. There is no precise definition of what divisions are “substantially equal”. It means that the division is approximately, but not exactly, equal.


The general rules can be modified by agreement or by the Commingling of separate and community property. “Commingling” is the conversion of separate property into community property. That can be done, for example, by putting a gift of money into a joint bank account and then spending it. If a spouse does that, he or she has converted his or her separate property (the monetary gift), which was not subject to division, into community property that is subject to division.

The rules are also subject to modification on account of fault so that the innocent party receives a greater share of the community property because of the fault of the other party. A similar result may occur when one party is entitled to spousal support but receives a greater share of the community property in lieu of that support.

Finally, if community funds are spent for the improvement of separate property or vice versa, the community and separate interests of the parties may be subject to adjustment.

The rules can be complex. Sometimes, the value of the property involved does not justify the expense of litigation. (How much money would you spend fighting over something that you can replace for $5.00?) But when the property has substantial value, you probably should find out just what you rights are before you enter into an agreement by which you divide it. It seldom does any good to consult a lawyer after you sign a settlement agreement, it can do lots of good to consult one before you do so.

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