Getting divorced is difficult. No matter the circumstances, the dissolution of a marriage is a trying time for all of those involved. In order for everyone to move on, a clean break is ideal. In a divorce that doesn’t include children, the distribution of property is often the most contentious area of dispute. Once the marital property is categorized into community and separate property, the distribution of separate property is pretty simple: each party gets what is theirs. On the other hand, the distribution of community property can become extremely complicated.
As with many issues in the law, we start with the statute. Community property is defined by Idaho Code § 32-906. Quite simply, “All other property acquired after marriage by either husband or wife is community property.” The same is true with income derived from community property, unless there was a specific agreement between the spouses that it would be separate property. As the “all other” language suggests, this statute needs to be read in conjunction with Idaho Code § 32-903, which defines separate property. This definition is a little more complicated, so I will quote it in full:
“All property of either the husband or the wife owned by him or her before marriage, and that acquired afterward by either by gift, bequest, devise or descent, or that which either he or she shall acquire with the proceeds of his or her separate property, by way of moneys or other property, shall remain his or her sole and separate property.”
In short, if you had it before you got married, it’s likely your separate property. If you and your spouse acquired it after getting married, it’s likely community property. If a piece of property is community property, it will likely have to be divided equally between the spouses. The best way to determine whether a specific piece of property is community or separate property is to consult with an attorney. Johnathan or I would be happy to sit down with you to discuss the specifics of your case and how we may be able to assist you.