Articles Posted in Family Law

By Lane V. Erickson, Idaho Estate Planning Attorney

Whenever I meet somebody for the first time, whether on a plane, at a family gathering, or just in some social event, inevitably I am asked what I do for a living. When I explain that I am an estate planning attorney a common response that I get is that the individual will say, “Well I don’t really own anything. I guess I don’t have an estate so I don’t really need any kind of estate planning.” Another common response is that people will say, “I can’t afford estate planning. It is just too expensive for me.”

When these statements are made to me in the form of a question, I usually take the time to explain to people why it’s important that they have an estate plan and how having an estate plan can actually be less expensive for them and their family in the long run. Here are the three most important things I try to explain to these individuals.

By Joseph G. Ballstaedt

Adoption became a recognized legal practice in the United States back in 1851, when Massachusetts passed the Adoption of Children Act, which recognized adoption as a legal means to improve child welfare. Recent studies estimate that about 135,000 children are adopted in America every year, with about 900 of those adoptions occurring in Idaho. The process to adoption in Idaho is explained in Idaho’s own Adoption of Children Act. A major goal of this Act is to provide stable and permanent homes for adoptive children in a prompt manner.

Under the Idaho Adoption of Children Act, any adult can adopt a minor under the process explained in the Act, and an adult can adopt another adult where the adopting adult acted as the parent for a period of a year prior to the adoptee becoming an adult or for a period a court determines establishes “a substantial family relationship.”

By Patrick N. George

I frequently get asked what happens when the community contributes money or labor to a spouse’s separate property asset. This is a murky area and frequently depends on the facts of the case. However, there are some guidelines.

In the Hiatt v. Hiatt case, the husband owned an automobile dealership as his separate property. (Separate property is usually property acquired by one person prior to the marriage or by gift or even will.) In this situation, the couple took community property money (money earned by the community) and invested it back into the automobile dealership. This investment took the shape of paying off debt and making some improvements.

By Patrick N. George

It is no secret that divorce is often one of the most complex and emotional experiences of a person’s life. In fact, divorce has often been referred to as a two step process. The first step is the actual legal steps to get the divorce while the second is the emotional separation from your spouse.

Nobody ever wants to see their relationship, that was once thought to last forever, coming to an end. Yet, all too often marriages break down, for whatever reason and it is no longer possible to maintain a positive, healthy relationship. When a divorce is imminent, there are several things a person can do to minimize their stress, prepare to meet with their attorney, and make the process easier.

By Heidi Buck Morrison

One of the assets that must be dealt with in divorce is the parties’ retirement accounts such as pensions, 401Ks and IRAs. Upon divorce, retirement benefits must be valued and divided.

With respect to valuing a retirement account, there are two valuation methods used by courts. First, the “Time Rule” is a valuation method that determines the community interest in a retirement by computing a ratio of the time of marriage, to the total years of service during which the pension or retirement was earned. Maslen v. Maslen, 822 P.2d 982 (Idaho 1991). Under this valuation method, the calculation must be determined by calculating the amount of benefits that would be due if the spouse were eligible for retirement then. Id., at 982.

By Nathan R. Palmer

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.

By Nathan R. Palmer

Parties beginning the divorce process often wonder how their property will be divided. The general rule for dividing property in divorce in Idaho is that each party will be awarded their separate property while all community property will be divided substantially equally. The crux of many divorces is how to determine community property from separate property. This blog will provide a general description of community property using language from a recent Idaho Supreme Court case, Kawamura v. Kawamura, 159 Idaho 1 (2015).

Whether a specific piece of property is characterized as community or separate property depends on when it was acquired and the source of the funds used to purchase the property. Here’s what the Idaho Supreme Court had to say:

By Heidi Buck Morrison

While most custody cases involve disputes between the child’s biological parents, there can be circumstances when other parties can involve themselves in custody disputes. For example, grandparents and step-parents may become involved in a custody dispute.

In a recent case, Shepherd v. Shepherd, the Idaho Supreme Court affirmed a district court decision in favor of granting a step-parent visitation despite objection by the natural mother.

By Tippi Jarman

Civil litigation can expose a losing party to paying the other party’s attorney’s fees. This is well known. However, the Idaho Supreme Court recently announced a new rule of law regarding attorney’s fees which will take effect on March 1, 2017. In the case of Hoffer v. Shappard, 2016 Ida. LEXIS 290 (September 28, 2016), the Idaho Supreme Court stated that Idaho courts will soon apply a different standard for attorney fees under Idaho Code Section 12-121. This new standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 “when justice so requires”. This is a significant change from the current standard of law under this statute. The current standard allows Idaho courts to award attorney fees under Idaho Code Section 12-121 only when the case was “brought, pursued or defended frivolously, unreasonably or without foundation”.

The good news is that the Idaho Supreme Court has long held that “where a specific statute exists for awarding attorney fees, the specific statute will control over the more general statute”. Bell v. Eagy, 2015 Ida. App. Unpub. LEXIS 18, (2015); citing First Fed. Sav. Bank of Twin Falls v. Riedesel Eng’g, 154 Idaho 626, 632, 301 P.3d 632, 638 (2012). This is important in family law cases because Idaho Code Section 32-704 allows for the award of attorney fees to a party maintaining or defending a divorce or custody case. The Idaho courts take into consideration certain specific factors on whether to award fees under this more specific statute, rather than the looser standard of “when justice so requires”.

By Heidi Buck Morrison

Child custody orders are not necessarily permanent. However, they cannot be changed at the drop of a hat either. In Idaho, in order to justify a change in a custody order, the moving party must demonstrate a material, substantial change in circumstances occurred since entry of the earlier order. Courts have great discretion in decisions regarding child custody, and in addition to determining whether the moving party has met their burden of showing a material, substance change, courts will always look to ensure any custody modification serves the best interests of the children.      

Clients often wonder what qualifies as a “material, substantial change in circumstances.” However, there is no definitive answer. It is a fact specific inquiry and analysis that a court must engage in. An attorney can help you determine if your unique set of facts may qualify as a material, substantial change in circumstances.

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