Idaho Law Blog

Qualified Domestic Relations Order (QDRO)

Published on: August 29, 2016 | by Racine Olson

By Carol Tippi Jarman

Did you know that Idaho courts recognize the issuance of a “Qualified Domestic Relations Order (QDRO)” to enforce a prior alimony obligation whether that support obligation was created by a settlement agreement or a court order? In Kesting v. Kesting, 160 Idaho 214, 370 P.3d 729 (2016), the Idaho Supreme Court made clear that an ex-spouse seeking to enforce a support obligation is not simply an ordinary creditor. Idaho law specifically recognizes this by allowing a former spouse to collect normally exempt property to enforce a claim for support.

Naming a Child as Co-Owner on Your House

Published on: August 29, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

There many times as an estate planning attorney clients ask me whether it is a wise decision to name their children as co-owners on their house. Clients want to know how to do this because they believe it would be a good way for them to avoid probate when they die. Here are three reasons why you should not name your children as co-owners on your home.

1. Taxes

How Does the Industrial Commission Work? (Part 3)

Published on: August 29, 2016 | by Racine Olson

By Fred J. Lewis

Sometimes the Commissioners decide that they would like to either come to a different conclusion or write a decision in a different way than the Referee has written the decision. The Commissioners then write their own decision which becomes the final order of the Idaho Industrial Commission.

If either party disagrees with the final decision written by the Industrial Commissioner themselves or an approved Referee decision, they have the right to make a direct appeal to the Idaho Supreme Court. The attorneys then submit briefs to the Idaho Supreme Court and then the case is set for oral argument. Approximately 60-180 days following the Supreme Court argument the Idaho Supreme Court issues its decision which then becomes the final decision in the Idaho Industrial Commission case.

Should I represent myself in my divorce?

Published on: August 25, 2016 | by Racine Olson

By Heidi Buck Morrison

In Idaho, parties to a divorce proceeding have the option to represent themselves pro se. In other words, you may proceed in either filing or responding in a divorce action without retaining an attorney. The courts provide many forms for pro se litigants and for many people, an impending divorce brings with it the realization that they will soon be living with less financial resources than they’ve been accustomed. This often leads people to believe they do not need or cannot afford an attorney to represent them in their divorce. In most cases, the risk and pitfalls of representing yourself greatly outweigh the benefits.

Here are the top 5 reasons who should hire an attorney to help you through your divorce.

In Idaho, what is the definition of “spouse” under the FMLA?

Published on: August 25, 2016 | by Racine Olson

By Joseph G. Ballstaedt

The Family and Medical Leave Act (FMLA) allows certain employees unpaid leave for various medical purposes, including caring for a spouse, child, or parent who has a serious health condition. 29 U.S.C. 2612(a)(1)(c). On February 25, 2015, the Department of Labor revised the definition of “spouse” so that every eligible employee in a legal, same-sex marriage can take FMLA leave to care for his or her spouse. This change ensures that all eligible employees in legal, same-sex marriages—wherever they live—will have the same rights under the FMLA as employees in traditional marriages. See 29 CFR 825.102. Prior to this rule change, the Department of Labor defined spouse as “a husband or wife as defined or recognized under state law for purposes of marriage, including common law marriage in states where it is recognized.” 58 FR 31817, 31835 (June 4, 1993).

This change to the definition of “spouse” under the FMLA came about in the wake of a United States Supreme Court decision in 2013 that struck down the definition of “spouse” under the Defense of Marriage Act. See United States v. Windsor, 133 S. Ct. 2675, 2682 (2013). This Supreme Court decision motivated President Obama to ask all federal agencies to alter laws, rules, policies, and practices that perpetuated discrimination against same-sex couples. After changing the definition of “spouse,” the Department of Labor issued the following statement: “Today, we’ve carried out the president’s directive to ensure that all married couples everywhere .　.　. can have the peace of mind that comes with the right to deal with a loved one’s serious medical situation without the threat of job loss.”

How Does the Industrial Commission Work? (Part 2)

Published on: August 25, 2016 | by Racine Olson

By Fred J. Lewis

There is no way that the three commissioners can hear all of the Idaho Worker’s Compensation cases that must be decided by the Idaho Industrial Commission. Therefore, they hire lawyers to serve as administrative judges or Referees to hear the individual cases. These Referees travel throughout the state and conduct hearings near the homes of the injured Idaho workers. After the hearings are completed, the lawyers for the injured Idaho worker and for the insurance company travel to the offices of doctors and vocational experts throughout the state and take their testimony by way of post hearing depositions. After all the testimony and evidence has been submitted to the Referee, they draft decisions that are then submitted to the three Industrial Commissioners for their approval.

In Idaho, does a person give up the right to use a prescriptive easement through non-use?

Published on: August 25, 2016 | by Racine Olson

In Idaho, an easement that has been expressly granted in a written document cannot be abandoned or forfeited simply through non-use of the easement. See Kolouch v. Kramer, 120 Idaho 65, 67, 813 P.2d 876, 878 (1991). For written easements, abandonment requires the easement holder to act in a clear, voluntary, unequivocal, and decisive manner to shows a present intent to abandon the easement. See O’Brien v. Best, 68 Idaho 348, 357, 194 P.2d 608, 613 (1948).

To date, no published Idaho court decision addresses whether prescriptive easements, which are acquired by using property without a written document, likewise cannot be abandoned or forfeited through non-use alone. Most states require affirmative action to abandon both written and prescriptive easements. However, some states recognize abandonment through non-use alone if the non-use lasts for the prescriptive period (the time it takes to establish a prescriptive easement). See, e.g., Chevy Chase Land Co. v. United States, 355 Md. 110, 160 n.8, 733 A.2d 1055, 1082 (1999). If applied in Idaho, this would mean that a prescriptive easement may be considered abandonment after twenty years of non-use. See Idaho Code § 5-203.

If you have questions about a property in Idaho that is potentially burdened by an easement, contact a real estate attorney at Racine Olson.

The 3 Reasons We Procrastinate Estate Planning

Published on: August 24, 2016 | by Racine Olson

By Lane V. Erickson

Having spoken to many Estate Planning clients I’ve come to find that there really are 3 main reasons people procrastinate getting their Estate Planning done. Knowing why we procrastinate our Estate Planning can help us avoid any further delay and can help us focus on getting it done. The purpose of this article is to explain the three main reasons for procrastinating and to show why these reasons really are not valid.

1. Estate Planning is Too Expensive: False

End of Summer Safety

Published on: August 24, 2016 | by Racine Olson

By Patrick George

Summer is nearly over, fall is in the air, and kids are headed back to school. Here are some ways to take the worry out of whether your children are safe.

First, select the right backpack for your child. Children seem to have more and more school supplies. In addition, they get books at school and more papers. It would be easy just to get backpack with the latest superhero, the coolest colors, or the cheapest one. Remember however, this is the backpack that will need to last throughout the entire school year. You want it to last. Second, make sure it has reflective materials on it. As the daylight hours get shorter and darkness comes faster, it is important to make sure that everyone can see your child.

How does the Industrial Commission Work? (Part 1)

Published on: August 23, 2016 | by Racine Olson

By Fred J. Lewis

The Idaho legislature has provided the structure for how the claims of injured Idaho workers are adjudicated. There are three commissioners appointed by the Governor of the state of Idaho for 6 year terms. First, there is an appointment made by the Governor for a Commissioner that comes from the labor community. R.D. Maynard? is a former AFL-CIO Union representative who was appointed as the employee Idaho Industrial Commissioner. Second, there is an appointment made by the Governor for a commissioner that is a lawyer. Thomas P. Baskin is a highly experienced worker’s compensation lawyer who was appointed as the lawyer Idaho Industrial Commissioner. Third, there is an appointment made by the Governor for a Commissioner that comes from the employer community. Thomas E. Limbaugh is a former orchard owner who was appointed as the employer Idaho Industrial Commissioner. These three Idaho Industrial Commissioners must approve all decisions and settlements reached in Idaho Worker’s Compensation cases.