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Idaho Legal Separation
Legal Separation in Idaho

In Idaho, there is no legal provision for the court to order a separation, but the spouses may live separate and apart. A couple whose marriage is floundering may either divorce or file for a legal separation. Legal separation permits spouses to live apart but remain legally married. People sometimes choose legal separation for religious reasons or to maintain their current medical insurance that would otherwise terminate upon divorce, or as a preliminary to a divorce. Sometimes couples who hope to reconcile at some point may choose legal separation as a temporary measure.

According to the Idaho Code, the court may, in its discretion, on the motion of either party and upon showing made in conformity with section 32-305, [which deals with maintenance] or section 32-706, [which deals with child support] Idaho Code, whichever be appropriate, order the payment of temporary maintenance of either spouse by the other or temporary support of a child of the marriage, in amounts and on terms just and proper under the circumstances.

The court may, in its discretion, on the motion of either party enter a decree of legal separation, providing for custody of children, division of property, payment of debts, payment of child support, and payment of spousal support as set forth in the statutes governing domestic relations.

Filing for a legal separation is much like filing for a divorce. The law in Idaho allows for a no-fault divorce in cases where the spouses have irreconcilable differences or have been separated for at least five years. There are also divorces based upon the fault of one of the spouses. These are adultery, extreme cruelty, a willful desertion or neglect, a spouse convicted of a felony, or insanity of one of the spouses.

Most issues addressed in a divorce can be settled negotiating a legal separation. According to Idaho Statute 32-704, in a legal separation the spouses divide and distribute property, determine alimony, agree to child custody and child support. Unlike a divorce, however, at the end of the process the spouses remain married and neither spouse may remarry.

In a separation, the couple write a agreement called a marital separation agreement, which is also known as a property settlement agreement or marital settlement agreement, and is a written contract establishing the terms and conditions of the separation. Most parties ultimately file for divorce, at which time the agreement would be incorporated into the divorce judgment.

In legal separation in Idaho, all marital property must be distributed. Idaho is a community property state, so the marital pie is divided equally. In dividing the marital estate, the Idaho court considers any prenuptial agreement the couple may have had, the age and health of the spouses, the length of the marriage, each person earning capacity, whether either spouse has retirement benefits and whether either spouse receive alimony or spousal support.

Although the spouses are living separate and apart because of a legal separation agreement, a court can award alimony or spousal support to one spouse if one cannot be self-supporting. If the distribution of property and one spouse's ability to earn income do not allow him or her to provide for his or her needs, a court examines several factors to determine the amount of support and the time period it is to be paid, including the age and health of the spouse seeking support, that spouse's ability to earn an income, the financial resources available to the spouse seeking support, the other spouse's ability to pay alimony and any tax consequences alimony would bring to either spouse.

When parents begin living under a legal separation agreement, a court must determine custody of any children born of the marriage. The court examines several factors, called the "Best Interests of the Child" standard, including the parents' wishes, the child's preference, each parent's fitness to care for the child, the child's relationship with each parent, the need for stability for the child and any incidents of domestic violence.

In Idaho, regardless of who has custody, child support is a shared obligation because both parents have a legal duty to support their child. Whether parties are divorced or legally separated, child support is determined based on each parent's income.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Complaint

The petitioner prepares a complaint for legal separation, which names the petitioner, the respondent (the other spouse) and the name of the court where the action is filed. The petition must have a blank space for the cause number once it is assigned.

Residency

At least one spouse must be a resident of Idaho for six weeks before filing.

Procedure

The separation papers are filed in the same way divorce papers are filed

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