A divorcing party generally seeks to protect her/his separate property from the opposing party. While property characterized as community property is generally divided equally, separate property will be left with the owner of the property. So what is separate property?
Separate property in Idaho is all property acquired by either spouse prior to marriage or thereafter acquired by gift, bequest, devise or descent. Also, property acquired with the proceeds of separate property is considered separate property.
Maintaining the status as separate property can be difficult during a marriage. Many times a party will commingle their separate property with community property to the point that the properties are in separable. During divorce, the party asserting that the property is separate bears the burden of proving “to a reasonable certainty” that the property is separate. Worzala v. Worzala, 128 Idaho 408 (1996).
Courts cannot award separate property of one spouse to the other; although a community reimbursement claim can create a lien on separate property. The most common example of this type of claim results from both spouses making mortgage payments on a residence purchased by one spouse prior to the marriage. The deed to the residence will be in the purchasing-party’s name (unless deeded otherwise); however, if income earned by either spouse during the marriage is used to make the mortgage payments the non-purchasing party will likely have a community reimbursement claim against the separate property residence.
Deciphering between community and separate property can be extremely complicated. Individuals with questions about the character of their property should consult an experienced Idaho divorce attorney.
At Racine Olson our Idaho divorce attorneys will help you with your divorce, including child custody issues, throughout Idaho, including Firth, Malad, Montpelier, Preston, Soda Springs, American Falls, Blackfoot, Pocatello, Idaho Falls, Rigby, Twin Falls, Rupert, Burley, and Boise. Contact us for a consultation with Nathan Palmer and the Racine Olson team of Idaho child custody attorneys in Pocatello, Idaho Falls, or Boise. You can also email Nathan Palmer directly at nrp@racinelaw.net.
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