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.