It may come as a surprise to you, but the chances are that something went wrong in the relationship long before you or your spouse asked for a divorce. Initially, we see a pattern of gradual emotional distancing and erosion of trust between the spouses. Sometimes allegations of infidelity (either real or imagined) follow. Consequently, this leads to a complete breakdown in communication.
2. Lawyering Up
One side usually starts talking with family and friends about the failing relationship. Once the big “D” word (divorce) is finally out in the open, friends and family will offer up all sorts of advice. They give solicited or unsolicited opinions on what to do and how to choose a divorce attorney. When deciding on an attorney, it is often the result of random selection from a myriad of names thrown out by loved ones. Do your homework, and meet with attorneys until you find one you are comfortable with. Not all attorneys are right for every client.
3. Filing the Divorce Case
The Divorce Petition
First, the plaintiff files the Petition and Summons with the court and serves a copy on the opposing party (the defendant). The party initiating the divorce case is the plaintiff. The other party is the defendant. In the Petition, the party filing for divorce makes a list of claims against the defendant. It will request that the court grant the divorce, custody, and support, and divide the marital property. Filing the Petition starts the process by forcing the other side to act or risk defaulting. And if the D
Idaho law requires that before filing
Fault and No Fault Divorces
Idaho allows for both fault-based and no-fault divorce. A no-fault complaint doesn’t require you to list the reasons for divorce. Instead, you merely state that irreconcilable differences make it impossible for the relationship to continue. Choosing a fault-based complaint requires you to specify the grounds for divorce. The following grounds are allowed by Idaho law: adultery, willful neglect, willful desertion, extreme cruelty, permanent insanity, felony conviction, or after a separation of at least five continuous years.
4. Answering the Complaint
The law does not require the person served with the divorce complaint to respond to the Petition. Even though the law does not require it, it is best to file an answer. See here. Failing to answer the Petition will result in the court granting a default judgment in the other spouse’s favor.
5. Discovery Process
Making reasoned and practical decisions about custody and property issues is impossible without first gathering all the information available. The old saying that “knowledge is power” holds true here. This hunt for information is called the discovery process. Both sides will routinely file requests for information in the form of interrogatories, requests for admission, requests for production of documents and depositions.
Idaho courts in divorce cases will regularly order the parties to complete a minimum of three hours of mediation in hopes of resolving the case. If resolution is not met, the courts hope to at least have the remaining issues narrowed for the upcoming trial. See here. The mediation will be presided over by a professional mediator.
The simplest route is an uncontested divorce where you and your spouse
reach a marital settlement agreement. This includes child custody
arrangements, property division, and any alimony agreements. These
documents are copied for you and your spouse, and filed with the court. A
judge will make sure that all the paperwork is in order at your court
hearing, ask some questions, and enter your Decree of Divorce.
7. Attorney Negotiations
Aside from the mediation process, the opposing attorneys are also communicating back and forth. They are trying to resolve a variety of legal issues having to do with discovery, potential legal motions and any problems that may have to do with the upcoming trial.
If the parties cannot resolve the divorce case in the mediation process, a trial will be necessary. In a trial, the judge has the final word on any remaining issues of child custody and property division. The trial is a formal process whereby the two adversarial parties present their case to the judge. The judge will make a decision that is legally binding on both parties in accordance with the law.
When it comes to property division, you will generally be able to keep any property you owned before getting married. The court calls this property, separate property. Separate property includes property acquired from a gift or inheritance and any proceeds from those properties. Community property, which consists of all other property received, and the debts incurred, will generally be divided equally.
Factors court considers in dividing property
The judge may take a look at the following factors when deciding how to distribute any community property:
- duration of the marriage, and
- prenuptial agreements, and
- each party’s needs and other factors (including age, occupation, health, employability, liabilities, vocational skills, source and amount of income, potential and present earning capability, and retirement benefits, including social security.
Spousal maintenance or aligmony
In Idaho, alimony is called ‘maintenance’. Maintenance is awarded if the seeking party does not have the income to be self-supporting or sufficient property.
Factors court considers in awarding
Idaho divorce law states that a judge may consider the following when determining the amount and duration of maintenance:
- the time necessary for sufficient education and training to find employment, or
- the financial resources of the seeking party, or
- the ability to meet needs independently, or
- the emotional condition, or
- physical condition, or
- age, or
- tax consequences to each party, or
- the ability of maintenance payer to meet their own needs while paying maintenance, or
- the fault of either party, or
- and any other relevant factors involved in the case.
Child Custody Considerations
In a divorce case, the judge may consider many factors when determining child custody.
- The court will consider the child’s adjustment to school, home, and community, and
- the wishes of the child, and
- the hopes of each party, and
- the need to provide stability and continuity in the child’s life, and
- the child’s relationships with family, and
- the character of all involved, and
- any domestic violence if applicable, and
- and any other factors that are relevant. and
A court must also decide how the parents will support the child financially. If you have children age 18 or younger, Idaho law requires you and your spouse to complete a Child Support Worksheet, and exchange an Affidavit of Income. Thereafter, the court will use the documents to calculate child support according to state guidelines.
9. Divorce Decree
A Decree of Divorce is a document that includes the specific rights and responsibilities of both parties in your divorce case. More
10. Enforcement of the Divorce Decree
Having the binding decree is one thing. But enforcing its terms is quite another. Consequently, many divorcees discover to their disappointment that it is sometimes difficult to enforce the order. That is because the other party might not live up to their obligations. Unfortunately, such situations often require separate actions to implement the existing legal rights established in the divorce process. For example, motions for contempt of court.
Dinko is the lead Family Law Attorney at Atkinson Law Offices. He handles family law, divorce, and child custody cases. He is fluent in Bosnian, Croatian, and Serbian.