Out of State Divorce

Out of State Divorce

I get a lot of calls from folks who want to know if they can get divorced in Idaho.  The first question is, of course, "why do you want to get divorced here?"  In general what has happened is the couple was married in Idaho, lived here for some time and then moved away either to be around other family, for a job opportunity or even as a desperate attempt to save the marriage.  When the marriage breaks down, one party moves back to Idaho.  Whether their spouse is avoiding divorce or they just want to move on with their lives back in their old home state, they want to get divorced in Idaho and not have the hassle of flying back and forth to a place where they only lived temporarily.  So can it be done?

Domicile and Jurisdiction

The first questions which must be addressed are those of domicile and jurisdiction.  Idaho law requires that you be domiciled, aka "live", in the state for the six weeks immediately preceding divorce.  To support this we look for things like and Idaho driver's license, an apartment lease, utility bills and the like.  If you have lived here for six weeks, Idaho then has jurisdiction over you and the marriage.  What is jurisdiction over a marriage?  That means the state of Idaho can legally say what happens to the marriage, even if the other party isn't here.

Child Custody and Community Property

Here is where out of state divorce can get tricky.  Let's  take the issues one at a time.

Idaho is a community property.  Essentially that means that if it was acquired during the marriage it belongs to both parties equally.  Not all states are community property states.  However, if you have acquired property out of state, particularly real property, such as a house, while that may be community property, Idaho does not have jurisdiction over that property because it is not located in the state.  Unless the other party agrees to a division of the property, an Idaho court won't divide real property located in another state.

For Idaho to have jurisdiction over children, the children must reside in the state for six months immediately before a custody proceeding. Whether your kids stayed with your spouse in another state or they came with you back to Idaho but haven't been here for six months, an Idaho court cannot hear any issues on child custody.  Those must be addressed in the child's home state, which is defined by where the child has lived consistently for the last six months.

Divorce

The long and short of it is, you can get a divorce in Idaho if you have lived here for six weeks.  An Idaho court may not address real property or child custody issues but the marriage can be terminated.  As for the other issues, those must be taken up in the state where the property is located or where the children live.  Some states allow a written agreement between the parties to be presented to the Court and the the Court will honor those agreements.  Other states may require that an actual child custody or property case be initiated.

If you need help with a divorce and want to speak with a Boise Divorce Attorney, give us a call at (208) 472-2383.  You will be glad you did.

How long will it take to get divorced?

Well, it depends. It may take one to two months or one to two years. The length of time from start to final judgment really depends on you, your spouse, and your situation.

What assets and debts do you have?

You will need to determine what items are community property (property eligible to be divided between you and your spouse) and what items are separate property (property not eligible to be divided between you and your spouse). You will want to be sure that your separate property is not being considered as part of the community estate! The overall size of the marital estate will also be a factor impacting how long the divorce will take. If there are business interests, retirement accounts, residential or commercial properties, etc., it can take time to get an accurate value of the assets.

Do you have children under the age of 18?

If so, can you and your spouse agree on a custody arrangement? If not, this issue will likely take some time to be resolved. Having relevant evidence to support your case for custody is very important.

Also, you will be required to attend a Focus on Children workshop. This is a one-time class to educate parents about how the divorce can impact their children. The final divorce decree will not be signed by a judge until the class has been completed. The scheduling of these classes varies by county. Usually, you can expect the classes to be scheduled at least a few weeks after the parties have filed their initial divorce paperwork.

What do you want out of the divorce?

The answer to this question will have a huge influence in terms of how long it will take to finalize your divorce. Do you want the car, house, furniture, motorcycle, etc.? Regardless of what item you really want to keep post-divorce, courts will make sure each party gets a relatively equal share of the estate (Idaho Code § 32-712: “Unless there are compelling reasons otherwise, there shall be a substantially equal division . . . .”). Note, in some cases there are reasons why the assets should not be divided equally. You will want to verify with an attorney whether there are reasons why there should be an unequal division in your case.

Ultimately, you and your spouse can agree to divide your debts and assets any way you want, equally or unequally. Therefore, regardless of how much stuff you own, what you are willing to part with may be the key to resolving the matter quickly. It will be important for you to speak with an attorney to understand what your rights are and what type of a division you should reasonably expect to get out of your divorce.

If you need to speak with a Boise Divorce Attorney, give us a call at (208) 472-2383.