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Love Hurts: It's Mine

When the marriage is over, who gets the stuff?


His stuff, her stuff, their stuff, whose stuff?

Unfortunately, when it comes to divorce, it's a lot more difficult than divvying up the DVDs and the fine china.

"Property can be a very complex and contentious part of any divorce," said Boise attorney David Leroy, a former Idaho attorney general and lieutenant governor.

Idaho is a community property state, meaning that whatever is accumulated during a marriage—be it material possessions or money—must be split equally between the two parties. But that's where it starts getting tricky.

Property falls into two categories. The first is separate property, which are usually things owned by either party before the marriage. It can also be a gift or inheritance given to an individual.

Then, there is community property, which is "acquired during the marriage or acquired with the fruits of the labor during the marriage," Leroy said.

According to Idaho law, community property must be split equally in terms of value, unless one side shows a legitimate reason why he or she should be awarded more than their soon-to-be-former spouse.

That may seem pretty straightforward, but Idaho has another curious little glitch shared by just two other states. Here, rents, profit or income earned by something otherwise considered separate property become community property.

"That's where things tend to get complicated," Leroy said.

Basically, this means that if one spouse owns a rental property of some kind, the revenue from that rental becomes a community asset, while the property itself remains separately owned.

And just to throw another variable into the equation, if communal money is used to pay the mortgage on a separately owned property, a portion of that property becomes a communal asset.

"It's tougher to the extent that things are commingled, but it's very mechanical in the sense that everyone gets their separate property and everyone gets half of community property," Leroy said.

The value of property is based on commonly accepted values for household items, and Leroy said that an estimated value is only disputed in one out of 10 cases.

If the parties can't reach an agreement, they are referred to mediation by courts in Ada and Canyon counties. This is particularly true when children are involved, since the courts work to minimize the impact of divorce on kids, Leroy said.

Battling spouses are encouraged to work through a process of collective negotiation, and a judge may weigh in on what he or she thinks the law says about the division of the asset in question.

If the two sides are still at an impasse, the case will head to court, where a magistrate judge will make the ultimate decision.

"Most divorce cases are resolved short of trial," said Ada County magistrate Judge David Day, one of four judges who handles the bulk of divorce cases in the county.

"It's not always easy," he said. "But only a small percentage actually go to trial."

Because of this, Day only sees the most contentious divorces come before him. The key, he said, is to remember that all assets must be divided equitably—meaning fairly, not necessarily evenly—although a 50/50 split is always desirable.

It's up to the individuals to give Day a compelling reason as to why they should receive more than half. These factors include the length of the marriage, any prenuptial agreements, the age, health, occupation and sources of income of each spouse, as well as the earning capacity of each and any promised alimony.

Ultimately, both Leroy and Day said they like to see one outcome. "Lawyers and judges encourage stipulations where the couple works it out," Leroy said.

—Deanna Darr