Legal Separation in Idaho FAQs

Divorce is almost always a couple's last resort when dealing with marital troubles. Find out whether Idaho offers legal separation as an alternative to divorce.

Is There a Difference Between Divorce and Separation?

Yes. The divorce process begins when one spouse files a petition (request) to terminate the marriage. During a divorce, the couple will negotiate how to resolve child custody, child support, spousal support, and property division issues. If the couple can’t agree, the court will decide using state-specific methods. In the end, the court will approve the couple’s agreement, or create its own, and terminate the couple’s marriage. Each spouse is free to remarry if they choose.

Legal separation is like divorce in that couples can use the process to decide the same divorce-related issues, but in the end, the parties are still legally married. Separation allows spouses to live as though they are unmarried. For example, you can create or terminate contracts as an individual, or you can sell or buy property in your name. However, if you’d like to remarry, you’ll need first to ask the court to convert your separation into a divorce.

Why Do Couples Choose Separation?

Relationships are complicated and deeply personal, and that doesn’t change when couples consider divorce. Only the individuals involved in the relationship can decide which legal process is right for them. With that said, some couples choose legal separation to maintain health or tax benefits that terminate after a divorce. Others may believe there’s a chance for reconciliation, and divorce is too permanent of an option.

Although every couple is different, some of the most common reasons for choosing a legal separation instead of divorce include:

  • religious, social, or moral objections to divorce
  • separation allows couples to keep valuable benefits, like social security or military benefits
  • a trial run for divorce, and
  • the couple isn’t on the same page regarding their relationship, and legal separation is a compromise both spouses will approve.

Is Legal Separation Possible in Idaho?

Yes. Legal separation (or separate maintenance) is available to couples in Idaho. The process begins when either spouse files a petition (request) for separation, which provides the court with information like your name, date of your wedding, when you began living apart, and address. You will also need to meet the state’s residency requirement, meaning at least one spouse has lived in Idaho for a minimum of six weeks before filing for separation.

Like divorce, couples must provide the court with a legal reason—or grounds—for the request. Idaho law permits parties to file for a no-fault or fault-based divorce, and legal separation is no different. No-fault is appropriate for couples who wish to keep the process as simple as possible, and you can achieve this by telling the court that your relationship has suffered irreconcilable differences, which means you and your spouse are currently unable to repair your relationship. If you’d like to blame your spouse, you can prove to the court one of the seven available grounds in Idaho.

There is a 20-day waiting period before the court can act on your case. During this time, you should negotiate your separation agreement with your spouse. You should discuss and agree to the terms of custody, support, and property division. If you can’t agree on any issue, the court will decide for you.

Legal separation in Idaho isn’t permanent, which means either party can terminate the agreement and file for divorce at any time, and the court will then merge the separation agreement into the final divorce judgment. On the other hand, if you’ve worked through your differences and would like to reconcile, you can resume cohabitating and ask the court to vacate (terminate) your separation.

What’s a Trial Separation?

If you’re on the fence about diving into the complex world of divorce and separation, you might benefit from a trial separation. For some couples, living apart for a specific period allows both spouses to take time to reevaluate the marriage before involving the court.

Because these are informal arrangements, and courts don't approve or monitor trial separations, you're free to create a temporary agreement that works for your family. Most couples can agree to the terms of the trial separation verbally, but if you’d like more security, you can ask for the arrangement in writing. With that said, the court won’t enforce the agreement unless you follow the proper steps for separation, but most couples find that a written agreement eliminates any miscommunication about your expectations during the trial period.

At the end of the trial separation you can reconcile, file for a legal separation, or file for divorce.

What Is a Separation Agreement?

A separation agreement is a legally-binding contract signed by both parties and the judge. The purpose of the document is to resolve the complicated legal issues that typically arise during divorce and separation cases. The agreement must contain your plans for custody and visitation, child support, spousal support, and allocation of property and debts. The law in Idaho doesn’t allow the court to approve a proposed order unless the couple distributes all the marital property from the marriage.

Once the judge signs your agreement, it is binding on both spouses.

How Does Separation Affect Custody?

When you’ve decided to separate, you’ll need to address custody, or the court will do it for you. The court will evaluate a set of factors that weigh each parent’s abilities to care for the child’s best interests. In addition to considering each parent’s wishes and the child’s opinion (in some cases), the judge will also evaluate each parent’s ability and fitness to care for the child, the child’s relationship with each parent, and the child’s need for stability.

Should I Hire an Attorney?

It depends. The law doesn’t require you to hire an attorney, but separations and divorces are complex legal matters that need specialized knowledge. The rules are continually changing in Idaho, so if you aren’t confident that you understand the most up-to-date laws, it would be best for you to hire an experienced family law attorney in your area.

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