Legal separation in Idaho is a similar process to divorce. According to Idaho Statute 32-704, legal separation entails property distribution, setting the amount of alimony, determining child custody and setting the amount of child support. The only difference between legal separation and divorce is that with legal separation the marriage is not terminated.
Benefits of Legal Separation
Married people who experience a breakdown in their marriage do not always want to get divorced. Legal separation offers an alternative that allows parties to live separately, but remain legally married. People may choose legal separation because their religion is against divorce or they want to maintain their current health insurance (which terminates for spouses upon divorce) or if they might be living separate and apart while waiting the necessary period for their divorce. Additionally, legal separation is a good alternative for parties that want to spend time living apart, but still hope to reconcile at some point.
Read More: What Are the Benefits of Legal Separation Vs. Divorce?
When a couple decides to file for legal separation in Idaho, all marital property must be distributed. Because Idaho is a community property state, marital property is divided equally. When determining if something other than equal division is necessary, an Idaho court looks at several factors, including: if the couple had a prenuptial agreement, the age and health of both parties, the length of the marriage, each spouse's ability to earn an income, whether either spouse has retirement benefits and whether either spouse received alimony or spousal support.
Alimony or Spousal Support
Even if the parties are still legally married, if they are living separate and apart because of a legal separation agreement, a court can award alimony or spousal support to one spouse if the individual cannot be self-supporting. If the distribution of property and the spouse's ability to earn income do not allow her to provide for her needs, a court examines several factors to determine the amount of support and the time period it is to be paid. These include the age and health of the spouse seeking support, that spouse's ability to earn an income, the financial resources available to the spouse seeking support, the other spouse's ability to pay alimony and any tax consequences alimony would bring to either spouse.
When parents begin living under a legal separation agreement, a court must determine custody of any children born of the marriage. The court examines several factors, called the "Best Interests of the Child" standard, including the parents' wishes, the child's preference, each parent's fitness to care for the child, the child's relationship with each parent, the need for stability for the child and any incidents of domestic violence.
In Idaho, regardless of who has custody, child support is a shared obligation because both parents have a legal duty to support their child. Whether parties are divorced or legally separated, child support is determined based on each parent's income.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.