Does it Matter Who Files for Divorce First in Boise, Idaho?

filing divore in idaho

Files for Divorce First in Boise

In an amicable and uncontested divorce, it may not necessarily be important who files the divorce papers first. However, divorces are rarely amicable. As a couple begins the process of dividing their assets, splitting child custody, and determining if either party is responsible for the breakdown of the marriage, emotions can run high. Typically, these sensitive topics, which are of the utmost importance to both parties, often result in disagreements and tension throughout the divorce process. As such, making the first move and filing first for divorce can be advantageous and allow you to get ahead in the divorce process and plan for the outcome that you want.
Together with your attorney, if you file first, you can begin to plan out and prepare for your divorce strategy, including gathering evidence of your spouse’s at-fault behavior, for example. Other advantages include allowing you to set the tone of the divorce and giving you the first opportunity to ask for temporary orders. The outcome of your divorce will have a large impact on the rest of your life, whether that includes the arrangements for custody of your children, or the financial implications of an inadequate settlement. If you are considering a divorce, a divorce lawyer can advise you on how best to protect your interests and whether filing first will benefit you. The attorneys at Idaho Divorce Law Firm are skilled and experienced when it comes to divorces. Our experienced Boise divorce attorneys can advise you of the best approach and strategy for you, and represent your best interests throughout the entire process. Contact us at (208) 295-0304 for a free consultation to understand how we can guide you through your divorce case. As such, making the first move and filing first for divorce can be advantageous and allow you to get ahead in the divorce process and plan for the outcome that you want. Together with your attorney, if you file first, you can begin to plan out and prepare for your divorce strategy, including gathering evidence of your spouse’s at-fault behavior, for example. Other advantages include allowing you to set the tone of the divorce and giving you the first opportunity to ask for temporary orders.

The Benefits of Filing for Divorce First

If you anticipate that you will be dealing with a contested divorce, meaning that you and your spouse may disagree on divorce terms or fault, or may struggle to communicate through the process, then it may be best for you to file for divorce first. Given the substantial implication that a divorce will have on your future and the future of your family, getting ahead of the process and protecting the interests of yourself and your family is key.

Preparing for Your Divorce Strategy

If you file first, you and your attorney can plan your strategy, including pre-empting your spouse’s response and putting in place measures to mitigate this. For example, in some circumstances, spouses may attempt to hide assets in a bid to avoid the division of these assets in the divorce settlement. Filing for divorce first allows you and your attorney time to collect evidence, dispute their disclosure to the courts, and ensure that you receive the best possible settlement in the divorce.

Alleging Fault

Proving fault in a divorce is one method to sway divorce negotiations and the subsequent settlement against the at-fault spouse. If you file the divorce petition first, this allows you to clearly outline any claims that you have of your spouse’s wrongdoing first and begin to gather the supporting evidence to prove fault with your attorney. Additionally, if you believe that your spouse will allege fault against you, filing first will allow you and your attorney to prepare the necessary evidence to dispute these claims.

Separation Date

If you and your spouse are still living together, then the court will determine your separation date as the date that you file for the divorce. Your separation date can have implications for the division of marital property and assets. Idaho is a community property state and all property acquired within the marriage will be divided between the couple during the divorce process. However, any property acquired before or after the duration of your marriage is not subject to negotiation and division within the divorce. Delaying your separation date can elongate the window in which you may acquire property that is subject to division in the marital estate.

Choosing the Location to File for Divorce

If your spouse has been living outside of the county that you live in for at least 90 days, then they can file for divorce in that county. Should this happen, then the burden will be on you to travel to your spouse’s county for all legal proceedings. Depending on the location and the amount of courtroom appearances required, this could place a substantial burden on you during an already stressful process. However, in some cases, there could be benefits to filing for divorce in your spouse’s county. If this is the case, your attorney will talk through this option with you.

Choosing When to Speak at Hearings

Filing for divorce first can also mean that you have the right to choose whether to speak first or last at hearings. Speaking either first or last both has its benefits, but the right to choose which is best for your strategy will only help your case. Your attorney can discuss with you which approach is best suited to your case.
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Temporary Orders

While divorce proceedings are ongoing, a court may enforce temporary orders on a couple to outline arrangements and obligations until the divorce is finalized. These orders can include child custody and visitation, in addition to financial arrangements such as maintenance payments. Filing first may put you at an advantage because you will have the first opportunity to ask for the temporary orders that you need, and you will have more time to prepare with your attorney for the temporary orders hearing. Temporary orders can be especially important when it comes to child custody, as they could influence the final divorce terms. A court will award permanent primary custody based upon what is in the best interests of the child. If you already have primary custody through temporary orders, then it may be deemed that maintaining this arrangement will cause the least disruption to a child, and this could be in their best interests.

The Idaho Divorce Process

Following the initial filing of the divorce forms with the court, in Idaho, there is a mandatory 20-day waiting period after filing papers before a divorce can be granted. The next steps following this depend upon a couple’s ability to reach agreed divorce terms. In an uncontested divorce, spouses can then propose agreed divorce terms to the court, there is no need for trial, and the divorce can be finalized. The divorce terms outlined will include the division of property, child custody, child support payments, visitation, and any spousal maintenance. This is also referred to as a divorce by stipulation. If a divorce is less amicable, or spouses are unable to reach an agreement on specific terms, for example, in a contested divorce, then formal divorce mediation with a neutral third party may be required. This process aims to help a couple and their attorneys negotiate the divorce terms that will be outlined in the final divorce decree. If an agreement cannot be reached through divorce mediation, then there will be a trial, where a Judge will make the final decision on the terms. Evidence is presented to the court to support both spouses’ claims and preferred divorce terms. Once a decision has been reached by either both spouses or the Judge, then the terms will be outlined in a final divorce decree and signed by the Judge. This is when the divorce is considered finalized.
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Divorce by Default

Following the initial filing of divorce papers with the court, the responding spouse has a 20-day (or 30 days for out-of-state) period to respond to the petition. If the responding spouse does not file a response within this time period, then they forfeit their right to do so. In this case, the person filing can proceed with finalizing the divorce.


In a divorce, a couple legally leaves a marriage, however, the process of an annulment is to render the marriage null and void. This essentially means that legally, the marriage never took place. Typically, an annulment is appropriate when the marriage should never have legally taken place to begin with. This is usually in cases where one spouse was already legally married, the marriage was entered into under duress, or when one spouse was not legally able to consent (possibly due to being underage or mentally incapacitated).

What are the Divorce Grounds in Boise, Idaho?

Idaho is a no-fault divorce state, meaning that you can file for a divorce without having to prove that either spouse is responsible for the breakdown of the marriage. However, Idaho divorce laws also recognize at-fault divorces, and you have the opportunity to choose which approach is best for you in your circumstances. Although a no-fault divorce is often a quicker and a more simple process, if appropriate, an at-fault divorce should not be discounted. If your spouse is at fault, then this should be recognized in the final divorce terms and the settlement that you receive. Your divorce lawyer will help you to decide which approach is best for your circumstances and to help you to receive the settlement that you deserve.

What is the Difference Between At-Fault and No-Fault Divorces in Idaho?

If a Judge rules in your favor in an at-fault divorce and agrees that your spouse’s misconduct is responsible for the end of the marriage, then this may be taken into account when deciding the final divorce settlement. Your spouse’s misconduct may sway the settlement in your favor when it comes to dividing property and agreeing with spousal support, for example. A no fault divorce has no requirement to provide evidence and prove the wrongdoing of either spouse. However, an at-fault divorce requires you to have enough evidence to be able to prove to the court that your spouse’s behavior has resulted in the end of the marriage, under certain legal justifications that qualify. If you decide to progress with a fault-based divorce, this runs the risk that if you fail to provide sufficient evidence to convince the court of your spouse’s wrongdoing, then your case may be dismissed by the Judge. Seek the advice of an attorney beforehand to ensure that your case is strong enough to win in the courtroom.

No-Fault Divorce

In a no-fault divorce in Idaho, there is no requirement to prove wrongdoing or that either spouse is responsible for the breakdown of the marriage. A couple can simply cite ‘irreconcilable differences’ as grounds for divorce, and show the Judge that there are substantial reasons for the marriage to end. If a couple has lived apart continuously for five years in separate homes, then this is also grounds for a no-fault divorce in Idaho.

At-Fault Divorce

An at-fault divorce in Idaho requires you to prove wrongdoing on your spouse’s part, which subsequently resulted in the end of the marriage. Idaho family law outlines a range of justifications that are considered as fault grounds for divorce in Idaho.

Extreme Cruelty

If you can prove that your spouse has committed extreme mental or physical cruelty to you that has rendered it impossible to continue with the marriage, this could be grounds for divorce under extreme cruelty.


Adultery is considered when one spouse cheats on the other spouse. If you are able to prove that your spouse has committed infidelity outside of the marital relationship, then you may have grounds for a fault-based divorce. To be claimed as grounds for divorce in Idaho, the adultery must have taken place within 2 years of filing.

Willful Neglect

Willful neglect is demonstrated when a spouse has refused to provide the filing spouse with financial support and necessities for both the spouse and the couple’s minor children for at least one year, when they have the ability to do so.

Willful Desertion

Willful desertion is classified as when one spouse willingly abandons the other spouse and their children within the marriage without their consent. The abandoning spouse must also have the intent to abandon all legal obligations to the spouse and any children for at least 1 year. Leaving the marital home for a military deployment, for example, would not be considered willful desertion.


If a spouse has been convicted of a felony-level crime then this can be grounds to file for an at-fault divorce. This is not the case if the spouse has been legally pardoned.

Habitual Intemperance

Habitual intemperance refers to the neglect of a spouse’s responsibilities as a result of habitual intoxication from either drugs or alcohol for at least one year. This can also be considered when your spouse’s continued intoxication causes you great mental suffering.

Permanent Insanity

To file for divorce under the grounds of permanent insanity, a spouse must have been confined to a mental institution for at least three years before filing, and the Judge must believe that they will not be considered sane again.

When Does Fault Matter in a Divorce?

If either spouse is proven to be at fault for the breakdown of the marriage, then the court may take this into account when deciding upon the final settlement and divorce terms. The judge is not obliged to consider either party’s fault, however, depending on the severity and nature of the wrongdoing, it can impact the division of property, child custody and spousal support.

Division of Property

Spouses must disclose all assets once a petition for divorce has been filed, so that an equitable division of property can take place. There is a period of 45 days following the filing of the petition to disclose assets to the court. Idaho is a community property state. Community property law governs marital property division in Idaho, and states that any property acquired during the marriage should be split between the couple equally. This applies to all assets acquired within the marriage including, real estate, stocks and shares, jewelry and pensions, to name a few. Community property law in Idaho also applies to any debt that has been acquired during the marriage. If either spouse is at-fault, then this could impact the court’s decision and the marital property may not be split equally but favor the party that was not deemed to be at-fault for the marriage breakdown.

Spousal Support

There is no set formula in Idaho to determine spousal support or spousal maintenance payments. If maintenance is awarded, the court will consider all relevant factors to determine the amount and duration of payments. These factors include, but are not exclusive to, the financial resources of the spouse seeking support; the division of marital property; the age and emotional and physical condition of the requesting spouse; the requesting spouse’s ability to meet their needs independently; and whether either party is at fault for the end of the marriage.

If one spouse is at fault, then the Judge may decide to award punitive spousal support, depending on the level of wrongdoing that has been proven to the court. This would increase the overall amount of spousal maintenance paid by the at-fault party.

How Long will my Divorce Take to be Finalized?

Filing a non-contested joint petition for divorce is likely to be the fastest route to getting your divorce finalized. However, typically, couples do not agree on divorce terms, and contested divorces can take longer to complete, depending on the couple’s ability to reach an agreement.

Uncontested divorces are the ideal situation and can be completed within months. However contested divorces, which are far more common, are likely to take around a year or more to complete.

Do I Need an Attorney for Divorce in Idaho?

Divorce laws vary depending on the route and approach that is right for your circumstances. Although some divorce options may seem simpler than others, it is essential that your rights are protected regardless of the route you choose. A divorce attorney will protect the rights of you and your family throughout the entire process. They will also gather evidence to support your arguments and achieve a fair settlement while defending you against any allegations that may arise.

Your divorce attorney will always represent you and your best interests during the divorce mediation process and if necessary, they will fight your case in court.

Contact Idaho Divorce Law Firm Boise Attorneys Today

At Idaho Divorce Law Firm, we are committed to defending the rights of our clients, ensuring that you receive the best possible settlement for the future of both you and your family. A divorce is a challenging and emotional time, of which the impacts of the final outcome cannot be overstated. If you are considering a divorce in Idaho, you do not need to handle this alone. Contact our Boise Attorneys today at 208-314-3302 for a free consultation and allow us to use our expertise to help you and your family.
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