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Property and Debt Division

How will the property that my spouse and I have acquired during our marriage be divided in our divorce case? How will our debts be paid? Do I get to keep the property that I had before we were married? Do I get to keep the property that I received as a gift during our marriage?

The community property and other divorce laws provide the answers to these and other questions that may arise during the course of your divorce case.

Idaho is a "community property" state. That means that any property that you or your spouse acquire after your marriage (other than by gift or inheritance) is "community property" that you own jointly with your spouse. This is true even if only one of you worked during the marriage and everything that you purchased was purchased with the earnings of the spouse who worked.

Community property includes property of all types. It includes your home, cars, savings accounts, investment accounts, 401(k) and other retirement accounts, furniture, and all other property.

In a divorce case, the Court will, unless there are "compelling" reasons, divide your community property and debt so that the net division is "substantially equal". A division is substantially equal if the value of the property that you receive minus the debt you are ordered to pay is approximately equal to the value of the property that your spouse receives minus the debt that she/he is ordered to pay. For example, assume that a couple owns a home that is worth $200,000.00 and that $125,000.00 is owed on the home. Then, assume that the parties have no other debt and that the only other property that the parties own is a savings account with a $75,000.00 balance. A distribution of the $75,000.00 savings account to one spouse and a distribution of the house with the debt to the other spouse would be a "substantially equal" division of the parties' community property because each party would receive property with a net value of $75,000.00.

It is not often that "compelling" reasons exist for a division of community property that is not substantially equal. Determining if there are compelling reasons for an unequal division of property involves consideration of many factors. Those include, but are not limited to:

1. The duration of the marriage.
2. Any agreement that the parties reached concerning the division of the community property in the event of a divorce.
3. The age, health, employability, skills, and income of the parties. The Court may give a disabled spouse who has no source of income a larger share of the community property than it does a healthy spouse with a significant income.
4. The needs of the spouses. For example, if one spouse has medical needs that involve a substantial monthly expenditure the Court may grant that spouse a larger share of the community property.
5. Whether or not one of the parties will be receiving spousal maintenance (i.e., alimony).
6. The retirement benefits that the spouses have. The Court could be inclined to grant a spouse who has no retirement benefits a larger share of the community property when the other spouse has substantial retirement benefits.

Please contact us if you believe that your divorce case will involve property and debt division questions.