The Effect of a Felony or Misdemeanor Crime on Custody, Child Support and Spousal Support

The Effect of Crime on Custody and Support

I have had several calls lately about crime, specifically felony crime, in the divorce or custody context and how it effects custody, child support and even spousal support.  In general, people want to use another person's criminal record against them to limit visitation, reduce child support or increase or negate spousal support.

When and Why Would a Criminal Record Effect Custody?

The Idaho Code states that custody pursuant to divorce is to be determined as the court deems proper and necessary in the best interest of the child.  There are several factors the court will consider including whether or not there is domestic violence in the marriage and whether it occurred in the presence of the child and the character and the circumstances of all involved.

While the Idaho Code does not specifically state that a felony is to be construed against a party, there is plenty of case law outlining when a felony can and does effect child custody.  Also, there is plenty of case law showing when and how a particular misdemeanor can and will effect the outcome of a child custody placement.

In general, if the crime in question was something that could potentially negatively effect the child, it will be given serious consideration.  For example, if one party is convicted for manufacturing meth in their home, the court will weigh that heavily against the individual.  If the party has a conviction for forgery from before the child was born, the court will place less weight, if any, on the conviction.

Would the Conviction of a Felony Effect Child Support or Spousal Support?

In general, child support will not be effected by a felony or misdemeanor conviction in the sense that one's obligation would be increased or reduced because of the other party's criminal history. If a party is in prison or in jail due to a crime they have committed, they will not be relieved of their obligation either.

Likewise, spousal support will not be effected by one party's criminal background.  The point of spousal support is to provide material support for the spouse who has foregone their own ability to make a career in favor of tending to the home and children of the couple.  The thought is that the party who stayed at home was never given the opportunity to develop a career and a means of support and therefore because they provided for the community in that way, that until they can get to a point where they can make a decent living, the other party will continue to share a portion of their income with them.  This is no way is effected by one's criminal history.  People often like to use the example of their deadbeat ex who stayed at home and did drugs and they don't want to provide spousal support for them.  In this scenario, that person who stayed at home and did drugs is unlikely to be a good candidate for spousal support in the first place so the argument becomes moot.

When it comes down to it, the best question to ask is, "did the criminal behavior of the party create a situation that was dangerous or compromising to the children?"  If so, then it is a relevant point to bring up in court.  If the criminal behavior did not effect the children or even remotely concern them, there is a high likelihood a judge would not consider that as evidence to determine custody.

If you have any regarding divorce or custody and would like to speak with a Boise Divorce Attorney, please give us a call, 208-472-2383.  You will be glad you did.

Boise Divorce Attorney 208-472-2383 Idaho Family Law Lawyers

Divorce and Community Property
As a Boise Divorce Attorney I have the honor of outlining and explaining community property law to many clients.  One very difficult thing for many people to understand is that community property law in Idaho doesn't necessarily mean equal division of property and debts. Rather, it requires an equitable division.

The scenario where this generally arises is in long term relationships.  Often, an individual, usually a woman (I don't say this in any way derogatorily.  I mean it statistically because women are generally the ones who give up their careers to stay at home and raise their children), will be offered a settlement agreement by her spouse indicating that the agreement contains an equal split of all the property and the debt and is therefore "fair".  Often these settlement agreements will contain a provision for child support and even an equal division of the retirement fund.

Thankfully, many women will call for a free consultation to discuss whether or not this equal division is fair.  I say thankfully not because it means more work for Boise Divorce Attorneys, but because, as I indicated above, equal does not mean equitable.  If a woman has given up her career or the option of having a career to raise a family, her contribution to the community should not be figured at zero.  All too often people think that if they are the ones who went out and supported the community, provided the home and the livelihood for the family, that they are the only ones who provided value to the community.  This simply is not true and Idaho community property law recognizes this.

Sadly, however,  in order to keep the peace, a spouse will misguidedly accept a settlement agreement that purports to be equal.  My advice as an experienced Boise Divorce Attorney is STOP! Don't accept such an agreement.  It will leave you struggling to pay your bills during the pendancy of your divorce, it may leave you with inadequate child support and you won't be compensated for the value that you have added to the community.  So what can you do?

Community Income During the Divorce
Most judges won't order child support or spousal support while a divorce is actively being pursued.  Instead what they will do is issue temporary orders.  In these orders, your divorce attorney will ask that the discretionary income of the community be divided equally.  How this works is this:  You and your spouse will be asked to make an accounting of your regularly occurring bills.  Your two incomes will be added up, the bills deducted and anything that remains is considered discretionary and will be split between the parties.  What this means for you is that if you make 1/4 of what your spouse does, you will not be left hanging until the divorce is finalized.  You will maintain an equal share of the community income. 

Child Support and Spousal Support
Your divorce attorney will compute the child support owing and may ask (in appropriate situations) for spousal support.  These two sources of monies will begin to be owing upon the finalization of the divorce.  Properly computed child support insures that the children are being provided for financially and spousal support financially acknowledges that a spouse who has stayed home with the children.

If you need to discuss divorce or any other family law issue with an Idaho lawyer, please call 208-472-2383 and see what we can do for you.