How to File for Legal Separation in Idaho

There’s no legal provision for legal separation in Idaho, but as per Idaho Statutes governing Domestic Relations the court can enter a decree of legal separation if one of the spouses specifically requests for it. In such a situation, the court can resolve issues arising due to the separation such as child custody, child support payment, division of marital property, responsibility of payment of debts and spousal support or alimony, in accordance with the Domestic Relations laws governing these issues in the state. A married couple is free to live separately without getting a legal separation as well and settle all of the above mentioned issues mutually or through a separation agreement.

The order for payment of maintenance and child support in a legal separation case, which are governed by Section 32-705 and Section 32-706 of Domestic Relations laws under Idaho Statutes, are temporary in nature. In case you or your spouse decide to convert the separation into a divorce later on, a permanent order regarding these matters will be passed by the court.

An order for payment of maintenance will be passed only if the court finds that you lack sufficient property or funds to live a reasonable life and if you’re unable to support yourself through employment. The amount of maintenance to be paid and the duration of the same will be decided by the court as well. The court will take into consideration your financial resources, which will include the portion of the marital property granted to you as part of the legal separation order.

The court will also take into account the amount of funds and time you would require to gain the skills and/or training to find employment. The length of the marriage, your age and physical and emotional conditions will also be taken into consideration by the court while determining the amount of maintenance and its duration. The court will consider the financial situation of your spouse and his or her ability to pay maintenance. If there are any tax consequences for you and your spouse, that will be accounted for as well in the decision.

It’s also worth noting that in Idaho marital property is considered community property. Hence, typically, it’s divided equally between the spouses. However, there are factors that the court takes into consideration to determine is the distribution should be equal or not and how the division of property should be done.

  • The duration of the marriage.
  • Any agreement between you and your spouse prior to marriage related to the division of property.
  • The current age, health condition, professional status, size of income, source of income, level of skills, educational qualification, employability and debts and liabilities of each spouse.
  • Requirements of each spouse.
  • If this division of property is being done instead of granting temporary maintenance or is it in addition to temporary maintenance.
  • The current earning capability of each spouse as well as their potential earning capability.
  • Any retirement benefits of each spouse.


Legal Separation vs Divorce

The primary difference between legal separation and divorce is that in case of legal separation you and your spouse will continue to be legally married after the separation, while in case of divorce the marriage is permanently ended.

Married couples opt for a legal separation over divorce for a number of reasons. If you and your spouse have children, a divorce is likely to affect them severely. It completely changes the living situation of the children. Plus, both you and your spouse are free to remarry, which further complicates the matter. On the other hand, legal separation is less disruptive. Since you and your spouse technically remain married, there’s limited scope of major changes.

A legal separation also makes more sense from a financial perspective. A married couple’s health insurance, federal benefits such as Social Security benefits, federal tax benefits and other financial matters are tied together. A divorce ends the marriage and along with it ends these benefits as well. Whereas, in a legal separation you remain legally married despite the separation, which means these benefits remain alive as well. A legal separation provides you with time to sort out all of the financial issues, before getting a divorce.

The scope of reconciliation also remains open with a legal separation, unlike divorce. In case you and your spouse can work out the differences and want to resume marital relations, the legal separation can be overturned. Married couples also opt for a legal separation if their religious beliefs don’t allow divorce or if they are concerned about the social ramifications of divorce.


Grounds for Legal Separation

Since there’s no specific legal provision for legal separation in Idaho, the grounds for legal separation are the same as that for divorce. There are both no-fault and fault grounds in Idaho. If you and your spouse have irreconcilable differences or if you and spouse have been living separately for at least five years, then you can get a legal separation. These are the no-fault grounds for legal separation. The fault grounds for legal separation are adultery, extreme cruelty, wilful desertion, wilful neglect, habitual intemperance, conviction of felony and if your spouse has been legally declared to be permanently insane.

To eligible to file a request for legal separation in Idaho, you must have resided in the state for a minimum of six weeks prior to filing the request.


Procedure of Legal Separation in Idaho

The process of getting a legal separation is essentially the same as that for divorce. It begins will filing a request for separation and the court can determine the terms of separation, if you and your spouse can’t reach a mutually agreeable settlement.

Step 1: Filing for Legal Separation

You will have to file a request for legal separation with the local county court. You will also have to prepare and submit a summons that will be served to your spouse, notifying him or her about the request for legal separation filed by you. In your filing, you will have to provide all the relevant details of the marriage, including the name and age of you and your spouse, marriage certificate and the grounds for legal separation. If both you and your spouse want a separation, then you can simply submit a statement mentioning irreconcilable differences in the marriage that can’t be resolved as of now. If you and your spouse have already been living separately for at least five years, then it makes the process even easier. In case you’re filing for legal separation under one of the fault grounds, you will have to provide a supporting statement for the same.


Step 2: 20-day Waiting Period

In Idaho, there’s a minimum 20-day waiting period from the date of filing for legal separation till the date the court actually begins proceedings on the matter. During this 20-day waiting period, the court may try to determine if reconciliation is possible, but only if you or your spouse request the same. This period is also the ideal time for you and your spouse to come to an agreement regarding the various issues that will arise due to the separation. You can get a separation agreement as well and submit the same before the court for approval.


Step 3: Terms of Separation

In case you and your spouse do not have a separation agreement in place, the court will resolve each issue related to the separation, including custody of the children and child support payment, temporary maintenance payments, debts payments and division of marital property.


Step 4: Judgment of Legal Separation

Finally, an order for legal separation is passed. You and your spouse will remain legally married, even though you’re separated. To remarry you will first have to request to court to convert the legal separation into a divorce.


Separation Agreement

A separation agreement is legal contract between spouses who wish to separate. You ideally don’t want to go to court to get a separation agreement, but it will help you protect your interests after you and your spouse separate. In fact, instead of getting a legal separation, you can start living separately and have a separation agreement as legal protection.


You can resolve all issues arising from a separation in a separation agreement, including type of child custody or custody rights, visitation schedule (if applicable), child support payments, alimony or payment of spousal support and division of marital property, among others. You should hire an attorney to complete the paperwork on your behalf and you can also learn more about your rights under Idaho Statutes from the attorney.


Legal Separation Costs

Your primary costs will be the court fees and the attorney fees. You might have to pay a fee to serve your spouse as well.

Helpful Tips

  • The Idaho State Bar has a Lawyer Referral Service. Lawyers that are part of this public service provide up to half-an-hour of free consultation during the initial meeting. Subsequently, the fee is $35.
  • The Idaho Law Foundation runs the Idaho Volunteer Lawyers Program. The lawyers that are part of this program can handle divorce and legal separation cases. They also hold community legal clinics.
  • Visit the State of Idaho Judicial Branch’s Court Assistance Office website for all the necessary forms.

We hope that you’re able to tide through this tough situation you find yourself in. Make a decision on what’s best for you, your spouse and children, if you have any. Take your family into confidence as well and take their support through this rocky period to get you through this phase.

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