How to File for Divorce in Idaho - FAQs | Cordell & Cordell

How to File for Divorce in Idaho – FAQs

divorce in idaho

Idaho men’s divorce attorneys provide answers to frequently asked questions with regards to the divorce process and divorce laws in Idaho.

What are the grounds for divorce in Idaho?

Idaho is a fault and no-fault state. It is not necessary to show that either one of the parties was at fault.

One statutory basis for a divorce in Idaho is that there is no reasonable likelihood that the marriage can be preserved and, therefore, the marriage is irretrievably broken.

If your spouse does not want a divorce and denies that the marriage is irretrievably broken, you may still obtain a divorce. You will need to show one of the following: adultery, extreme cruelty, willful neglect, willful desertion, habitual intemperance, and separation without cohabitation.

What is it going to cost me to file for divorce in Idaho? Can I afford it?

In getting a divorce, you will most likely have to pay for attorney’s fees and court filing fees.

Depending on the facts of your case, the court may order you to pay maintenance (or alimony), child support, or other money to your spouse to divide your property, possibly including your spouse’s attorney’s fees.

It is certainly in your best interest to hire an experienced divorce attorney to make sure that your rights are asserted and your assets are protected in the long-term.

One of the issues that can affect the cost of a divorce is whether you and your spouse are agreeable to issues concerning the custody of your children, child support, maintenance, and the division of the property.

Do I really need to hire an Idaho divorce attorney?

There is no legal requirement that you hire an attorney. It is strongly recommended that you hire an experienced divorce attorney to represent you.

If you choose to represent yourself, you will certainly be at a disadvantage in settlement negotiations and in the courtroom.

If you have children or if you have significant earnings or assets, you should consult with an attorney to make sure that your interests are protected.

Can I get maintenance or will I have to provide maintenance to my spouse?

The court may grant maintenance if it finds that the spouse seeking maintenance does not have sufficient property to provide for his/her reasonable needs and is unable to support himself/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

There is no pre-determined formula to determine the amount or length of maintenance. The court will consider relevant factors including the financial resources of the spouse seeking maintenance, including the marital property apportioned to said spouse, and said spouse’s ability to meet his or her needs independently; the time necessary to acquire sufficient education and training to enable the spouse seeking maintenance to find employment; the duration of the marriage; the age and the physical and emotional condition of the spouse seeking maintenance; the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance; the tax consequences to each spouse; the fault of either party.

Generally, an award of maintenance is either for a specified term or modifiable.

If the parties decide to settle without a trial, they can settle on a term of maintenance – a specific dollar amount with a specific date that it stops.  If the parties have a trial, the judge may only award modifiable maintenance – which means that the spouse that is ordered to pay maintenance would have to come back to court in the future to terminate or reduce his/her monthly maintenance obligation.

Maintenance will terminate if either spouse dies or if the party receiving maintenance remarries.

Can I change my name at the time of divorce?

A spouse has the option to have her former or maiden name restored to her as part of the divorce.

Can I get an annulment?

An annulment is a decision by the court that the marriage was not legal from the beginning. Annulments are granted only in limited and unusual situations.

Annulments may be granted for marriages that are between persons between persons who lack the mental capacity to enter into a contract, where the marriage was entered into by force or fraud perpetrated by the other party or where one spouse was still legally married to another person.

When can I file for divorce?

You must be a resident of Idaho for at least six (6) full weeks before you can file for divorce.

When is my case going to be over?

A divorce must be pending for a minimum of 20 days after it is filed before a divorce can be granted.

How long a divorce case will last depends on the specific facts and circumstances of your case. If there are significant issues upon which you and your spouse cannot agree to resolve, those issues will have to be resolved by a judge.

It is necessary for the attorneys to gather and exchange all of the information concerning what is in your children’s best interests, as well as information regarding your residence, mortgage, vehicles, loans, bank accounts, credit cards, and all of your other assets and debts.

The judge will schedule pretrial settlement conferences to determine the status of the case. If there is a good reason to delay the case, the judge has the discretion to do so.

Otherwise, the judge will likely set a trial date. If there are any unresolved issues on the trial date, the parties will be allowed to present their evidence and make their arguments, and the judge will decide the remaining issues.

Do I have to go to Court?

No, the parties can settle all issues without going to court.

At what point during the process can a spouse remarry or start dating?

A spouse can date at any time after a party has filed for divorce, but it is not something that an attorney would advise their client to do. It is always better for your case if neither party dates during while the divorce case progresses.

However, a person that is married may not remarry until after the court enters an order dissolving the marriage

Do the other issues – support, custody, alimony, and property – have to be decided before the divorce is final?

Yes. The court’s order granting the divorce must address custody and support of the minor children, maintenance (or alimony), and the division of the spouses’ property.

How long do I have to live in this state to obtain a divorce?

You must be a resident of Idaho for at least six (6) full weeks before you can file for divorce.

After I file for divorce, do I have to continue to live in this state?

There is no legal requirement that you continue to live in Missouri after you file for divorce. You should understand that you would need to remain involved your case and you may need to make court appearances.

If you have minor children, moving to another state while your divorce is pending can make the court’s custody and visitation decisions much more complicated.

What forms do I need to file a divorce?

You should consult with an attorney who handles divorce cases

How and where is a divorce complaint filed?

A verified petition for dissolution of marriage may be filed at the clerk’s office in the county courthouse where either you or your spouse resides.

How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?

When you file your petition for dissolution, a copy will be delivered to the sheriff or a process server if you request. Either the sheriff or process server will serve the petition on your spouse, and will make a report to the court that he served the petition.

You will have to wait a minimum of 20 days after you file your petition before the court can grant a divorce.

However, if the opposing party is served, then the opposing party has 20 days to file an Answer to the Petition for Dissolution of Marriage and/or Answer to the Petition for Dissolution of Marriage and Counter-claim.

Upon opposing party filing an Answer and/or Answer and Counter-claim, then the case progresses in a normal manner within the court system and it is difficult to forecast how long it will take for the court to grant the divorce.

How is a divorce granted? Will I have to go to court?

Only a judge may grant a divorce.

If you and your spouse do not agree on all of the issues in your case, you will have to go to court to have the judge decide those matters.  Most judges prefer that each party attend any and all settlement/pre-trial conferences set on their case as judges are of the opinion that the parties should be involved in their case and show interest.

There will be opportunities for a partial or complete resolution to settle all of the issues in your case without formal court proceedings. These may include mediation, informal negotiations, and settlement conferences in court, all of which require your appearance.

Depending on the complexity of the issues that cannot be resolved and the amount of evidence that is presented to the court, a trial can last a few hours or several days or even longer.

How do I prove fault for divorce?

You should consult with an attorney who handles divorce cases to discuss proving fault.

At any time can a parent change a minor child’s last name without the other parent’s permission?

Court approval is required to legally change a person’s name. In the case of a minor child, the parent seeking to change the child’s name would be required to file a separate cause of action. The other parent would have to be served and given notice of the proposed name change and would be given the opportunity to be involved in this decision.

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

Idaho does not recognize common law marriages formed after January 1, 1996.