What is Separation?
Prior to considering divorce, marriage separation, or nullity, many couples consider a legal separation with the intention of perhaps reconciling. A legal separation will not necessarily resolve the issues in your marriage. That said, a legal separation can be helpful for a number of reasons.
In Idaho, a legal separation is a court proceeding in which the court can address, provisionally, the issues usually decided in a divorce action. A legal separation does not dissolve the marriage but allows the spouse to "live apart", at least in the eyes of the law. The couple remain legally married and have the option of reconciling and living together again.
In a separation, the same issues are addressed as in a dissolution of marriage (or divorce). However , the couple remains legally married, and the separation agreement will indicate this.
The Judge in the separation action has the same authority over the parties that he would in a divorce action. All of the factors involved in a divorce proceeding also apply to a legal separation. One exception is that either spouse is able to obtain a subsequent divorce action based on the separation.
The court in a legal separation proceeding retains the power to divide property, award spousal support, order child support and visitation, and enter domestic violence protection orders. Also, the court may issue injunctions preventing one spouse from obtaining a divorce until at least 90 days have passed after the court enters the order of separation.
How to File a Separation in Idaho
To legally separate in Idaho, you must file a petition with the district court. This petition should include several critical details, such as: the full names of both spouses, the date of your marriage, the date you moved to your current state, and the reason for separation. It’s also necessary to indicate the county of residence and declare that there are no minor children or financial assets that will require the court’s determination; or state the names and dates of birth for minor children and a brief inventory of your property, assets, and debts. It is also a requirement for a legal separation petition to declare the residence for at least six weeks prior to the filing. Once you prepare the petition, you need to file it with the courts using the appropriate forms. The filing fees vary from one district to another. Some courts allow online filing, while others still require the physical delivery of papers. The fees range from $100 to $140, where the Clerk’s office will accept cash, cashiers’ checks, and money orders. Some districts do allow personal checks, but most do not. You must deliver a copy of the petition to your spouse. In Idaho, the law states that personal service is only necessary for cases where the petitioner and respondent live in different counties. However, the court usually requires personal delivery even when spouses live in the same county. Therefore, you may need to get the court authorization to serve the petition through a process server, sheriff’s deputy, or someone 18 years of age or older. There is also an option of delivering the form to the spouse and then having the other party sign an affidavit of service. The court does not require you and your spouse to wait before separating. If either party has been guilty of domestic violence, the judge will rarely deny the divorce or time apart. Moreover, if either spouse has a higher income and the other a lower, the judge may award alimony or spousal support.
Separation: Benefits
Choosing to live apart without filing for divorce can have multiple upsides. Raising kids is expensive, so maintaining joint legal custody while living apart can help control costs. While there are alternatives to divorce, like physical separation, legal separation offers the same legal advantages of divorce: it provides for spousal support, division of marital things, custody and property division. Other benefits of separation over divorce include: Filing for legal separation in Idaho does not mean that you are forever legally separated. Both parties must consent to the separation, which is summarized in a legal separation agreement. Once both parties sign the agreement and file a petition with the court, the legal separation is granted. If during the separation one party decides they want a divorce, either party can file to convert the legal separation into a divorce.
Rights and Responsibilities During Separation
Like divorce, legal separation affects your rights and obligations to your spouse and your children. Issues such as child custody, child support, child visitation, division of property, and division of debt are all handled by the court and are generally the same in a divorce proceeding as they are in a legal separation proceeding.
However, sometimes, spouses have unique needs that affect their decision to legally separate rather than pursue a divorce. For example, the following circumstances may be affected by a legal separation:
If you have not lived in Idaho for more than 6 months before filing for a legal separation, a court may not grant you a legal separation. A legal separation proceeding is filed by one spouse against the other within the proper jurisdiction (i.e. the county in which you or your spouse reside). The legal separation is very similar to a divorce proceeding. It requires the completion of a petition and written response. Legal separation proceedings also require a preliminary court hearing and the issuance of a written, signed order.
In a legal separation action, you must be separated from your spouse for a period of not less than 21 days before the final hearing is held. If you have children together, you must attend a Court-ordered Parenting Class and obtain a Certificate of Completion before the separation action can be finalized.
Separation to Divorce
If a couple has chosen legal separation as a means of resolving marital issues but ultimately decides to end their marriage, the separation can be converted to divorce. In Idaho, this action is governed by Idaho Code section 32-903. This statute allows a couple who has been legally separated for a minimum of six weeks to file a petition with the court, along with a request that their legal separation be converted to a divorce. As a part of this petition , the initiating spouse must allege that "the marriage is irretrievably broken," based on the same grounds established under Idaho Code section 32-929, the statute governing requests for legal separation. Under Idaho Code section 32-929, the grounds for judicial separation include: Once the petition has been approved by the court, a separation agreement may be finalized, or any actions needed for the termination of the marriage may occur at the time of decree.
Common Separation Challenges and Solutions
Many couples seek the assistance of a lawyer to come to an agreement on key issues when preparing legal separation documents. Multitude of factors can contribute to the failure of reaching an agreement among the parties, including (but not limited to): child support obligations, debts, property division and child custody arrangements. These are regular issues addressed by a family law attorney when taking clients through the legal separation process. When working with a law office, all parties must be upfront about any perceived problems. A qualified lawyer will walk you through the process and provide you with information about how a judge is likely to rule on a particular issue. This helps establish expectations for the process. The most common challenge in the legal separation process comes from not working with a qualified lawyer. A good lawyer will address the many different issues that need resolution moving forward and carefully develop a plan for your situation. It is always best to consult with a lawyer who regularly works through issues of legal separation to avoid collateral damage from failing to properly address the issues. By working with a trusted and experienced law office, you will understand what issues are pertinent to your case and how to work through them efficiently.
Consulting with an Attorney
If you are considering a legal separation, it is essential to speak with an experienced family law attorney. An attorney can help you navigate the complex legal requirements and procedures associated with separation. They can also ensure that both parties’ rights and interests are protected throughout the process . By handling issues such as property division, child custody and support, and spousal maintenance, your attorney can help you achieve a fair and equitable resolution to your legal separation. Moreover, in the event that the situation changes and you decide to move forward with divorce proceedings, your attorney will already be familiar with your case and can provide continuity and guidance throughout the process.