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:

The character of property vests at the time the property is acquired. Property acquired during a marriage is presumed to be community property. The presumption can be overcome if the party asserting the separate character of the property carries his burden of proving with reasonable certainty and particularity that the property acquired during marriage is separate property.

A variety of factors are to be considered in the absence of the parties’ actual, articulated intent on whether property is community or separate: (1) whether the community was liable for payment on the loan; (2) the source of the payments toward the loan; (3) the basis of credit upon which the lender relied in making the loan; (4) the nature of the down payment; (5) the names on the deed; and (6) who signed the documents of indebtedness. The presence or absence of any or all of the above listed factors is relevant in determining the character of the credit by which a loan is obtained. None is conclusive.

No one factor is dispositive. Idaho courts are instructed to review each case independently, “. . . in consideration of the highly individualistic and often complex fact situations presented.” Determining the difference between community 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.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.


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