Divorce vs. Legal Separation
North Idaho Attorney Kevin J. Waite, P.C. on Tuesday, March 27, 2018
A frequent question is, whether (for the questioner) a legal separation would be a better option than a divorce. That question presupposes another question, namely, what is the difference between a legal separation and a divorce? We will deal with the second question first.
A legal separation can and frequently does cover all the same issues as a divorce, except of course for the divorce itself. It is typically called a "Judgment of Legal Separation" rather than "Judgment Of Divorce." It may have a provision for the conversion of the legal separation to a divorce. A legal separation is usually a holding pattern; legal separations usually either convert to a divorce or are eventually dismissed, for example because the parties have reconciled.
Usually, the disadvantage of a legal separation is that it does not terminate the legal financial relationship between the parties. Meaning that they remain married and therefore remain subject to the community property laws (at least in Idaho). While their Judgment of Legal Separation may work to regulate financial responsibilities between the parties, it does not diminish the rights of their creditors (to go after A for a debt incurred by B even after the separation, if B (Read More...)
North Idaho Attorney Kevin J. Waite, P.C. on Wednesday, January 24, 2018
Most divorces are granted on the basis of irreconcilable differences. This is sometimes called a "no fault" divorce. But fault can still be claimed, and it sometimes is. Probably the most commonly claimed fault in Kootenai County and elsewhere is adultery.
Under Idaho law, adultery is defined as the voluntary sexual intercourse of a married person and a person other than the offender's husband or wife. Thus, "an internet affair," whose participants have never met each other physically, does not qualify.
For divorce purposes, adultery must have occurred within the two years prior to the filing of the claim of adultery. This is essentially a statute of limitations. Also, the offending conduct must also "cause" the divorce. The spouse who decides in the middle of a divorce that it's over and “hooks up” with a new sexual partner has therefore not committed adultery for purposes of divorce since that conduct did not "cause" the previously filed divorce.
Of course, in some cases the allegations of divorce are denied by the other party. The adultery claim must be proven, and must be proven by clear and convincing evidence. "Clear and convincing evidence" is a higher standard than is required for most civil claims (for which the preponderance of the evidence (Read More...)
To Blow or Not to Blow
North Idaho Attorney Kevin J. Waite, P.C. on Wednesday, December 20, 2017
To blow or not to blow – that is the question that Hamlet might face if stopped on suspicion of DUI:
Whether ‘tis better in court to chanceThe slings and arrows of breathalyzer test resultsOr to encounter a sea of troubles by refusing to blow, but,Perhaps by refusing to blow, defeat a DUI charge.
Here in Kootenai County, the local newspaper recently addressed this question in the context of an article about law enforcement taking a zero tolerance approach to impaired driving and to testing refusals during the holiday season. The article reported that refusal to submit to a breathalyzer test will be met with a search warrant for a blood draw. It included the statement that, “In first offense cases, it often doesn’t behoove a motorist suspected of a DUI to refuse to consent because penalties for refusal are greater than the penalty for a misdemeanor DUI.” As a literal statement, this is not true. It compares apples to oranges and confuses the analysis.
The newspaper's statement combines two different procedures that usually come into play during a DUI stop, one civil and the other criminal. A DUI charge is criminal. A motorist’s refusal to take a breathalyzer test or failure of a breathalyzer test will result in the suspension of the motorist’s driver’s license. That case (Read More...)
Military Divorces and Custody Cases
North Idaho Attorney Kevin J. Waite, P.C. on Tuesday, November 21, 2017
The military service of either or both parties to a divorce, child custody case, or child support case adds an overlay of issues and procedures to consider. It is usually current military service that brings these considerations to the fore, but even cases involving past military service sometimes raise issues such as the appropriate division of a military retirement.
One of the first issues to consider in any new or reopened case is the Servicemembers Civil Relief Act, 50 U.S.C 3901 et seq. Among the protections provided by the Act are a barrier in the path of a default judgment being taken against the servicemember and a stay of the litigation on behalf of the servicemember. It is important to note that these protections are not absolute. There is a procedure for obtaining a default judgment against a servicemember under the right circumstances. There is a fairly technical procedure for seeking a stay, and a standard and evidentiary requirement that the servicemember must meet. There is a great misunderstanding among attorneys and judges on these issues.
Even where a stay is granted, there are exceptions. For example, the other parent may nonetheless obtain a temporary order for child support. There are cases going back to the early 1940's on some of these issues, (Read More...)
Most people have a good general idea of what a trial involves. There are various other hearings before trial in divorce cases (as there are in most cases), however, and many people have little or no idea what to expect at them. This is not an exhaustive list, merely a general discussion of some of the more common pretrial hearings.
The earliest such hearing is usually a scheduling conference, sometimes called a status conference. It is what its name suggests – a conference for the purpose of scheduling a trial date and dates for other, related hearings and deadlines. A scheduling conference is likely to be set up after a response to the petition is filed. Courts need to know how long a trial the parties think they will need – usually one or two trial days but sometimes longer – should the case not settle. The attorneys and their clients are called in to report that information. Judges generally also use the occasion to get a preliminary idea of the issues of the case, to find out if settlement discussions have begun, and to issue various other orders such as for mediation.
Most judges hold a similar hearing closer to trial, usually called a pretrial conference. It is frequently an opportunity for either side to raise specific issues that may need to be addressed before trial. (Read More...)