Property Division

How is property divided during a divorce in Idaho?

Idaho uses the “community property” system to divide property at divorce. The general idea  is simple – all property acquired during the marriage is community property, or in other words belongs to both partners equally.  However, the simplicity ends there.  The rules governing the classification of property as community property are quite complex.

If property does not belong to the community, then it is called “separate property”, or in other words the property belongs solely to one of the partners in the marriage. One key factor as to whether the property is classified as separate property or community property is determining when the property was obtained.  All property acquired during the marriage is presumed to be community property.

This presumption however is ‘rebuttable’, or in other words one of the partners to the marriage can put on evidence that the property is not community property.

This ‘rebuttable presumption’ that all property acquired during the marriage is community property can be over come in three ways:

By proving that the property was,

    1. a gift received during the marriage, or
    2. an inheritance received during the marriage, or
    3. acquired by money derived from the spouses separate property.

Community property is generally divided in a ‘substantially equal’ manner between the parties while the separate property is generally distributed to only one of the parties.

However, things get much more complicated in a variety of ways. One situation that occurs frequently is that one spouse’s separate funds are used to benefit the community or that the community funds are used to benefit separate property.   This ‘comingling’ of separate and community property routinely complicates the division of marital property.

Other issues that can come up when dividing marital property are the valuation and division of a small business or a closely-held corporation.  Pension plans present particularly difficult issues and consulting with an attorney is highly advisable.