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Saturday, January 21, 2012

Indivisible Division

G.I. Joes are awesome.  I spent countless hours growing up reveling in their awesomeness.  Sure one can line them up and fight, but there are so many other possibilities for diversion with the small army action figures.  My favorite was creating opposing football teams with them and then simulating the games complete with play-by-play by me (a fact that was not mentioned to my wife until well after we married).  I lined up the Joes according to their respective strengths and weaknesses.  For example, the ninjas, Snake Eyes and Storm Shadow, would be wide receivers because they were blazing fast and had ninja-like moves.  The two ninjas were prolific scorers and enjoyed many game winning touchdowns.  The attachment to my Joes lives on as demonstrated by my continuing to purchase Joes for my own son despite the fact that they sit dormant, gathering dust in his room.  I loved my Joes.  They were prized property.  I enjoyed them long after it was socially acceptable to do so.

In addition to contributing to the growing evidence that I am a complete and total dork, my affinity for G.I. Joes demonstrates that people attach different values to different things.  Every attorney who does divorce work has a story about the crazy things people fight over.  The phrase “fighting over the silverware” may come to mind.  People end up spending significant resources fighting over property that has high sentimental value but low monetary value. 

The law regarding marital property in Idaho is outwardly simple.  Idaho is a community property state.  Community property is any property obtained during the marriage.  Separate property is property brought into the marriage or property obtained during marriage by gift or inheritance.  For example, my G.I. Joes are my separate property because I owned them before marriage, but my wages are community property because I earn them during marriage.  The community starts when marriage begins and ends with either a divorce or death. 

There is a common misconception that when couples separate the community ends.  There is no such thing as “legal separation” in Idaho.  The filing of divorce does not end the community.  The community does not end until the judge enters a decree dissolving the marriage.  Assets acquired after the filing of divorce (but before an official decree of divorce) are community assets and will need to be split up.  Unless there are compelling facts requiring a different outcome, the community property will be split 50-50 between husband and wife, and each will get to keep their own separate property.  If separate property becomes mixed with community property, then it becomes community property.  It is then left up to the party who mixed the separate property with the community property to prove the separate nature of the property.  For example, if one spouse uses his or her inheritance to pay for a kitchen remodel in the marital home, the inheritance is no longer separate property.

These rules all seem straightforward until someone files for divorce.  If the emotion is removed from the equation, a divorce is merely a business transaction.  Almost always, emotion is not removed from the equation.  Most do not go into a divorce thinking they are going to drag things out or be petty.  However, when faced with losing a prized possession, it is easy to lose sight of the big picture.  One is not being asked merely to split up his or her possessions; one is being required to give up the memories associated with those possessions.  It is not about giving up cheap, replaceable G.I. Joes; rather it is about being required to grow up and replace the certainty of the euphoria the G.I. Joes bring with an uncertain future. 

No one goes into a marriage hoping for a divorce.  If you are faced with such a situation, seek out those you trust, professional or otherwise.  They can help you decide if a battle must be waged and which skirmishes within the battle to pursue or avoid.  They can also help you put your affairs in order to ensure your G.I. Joes are not irretrievably comingled with your wife’s Care Bear collection.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  Jeff is a trial lawyer who specializes in business disputes and estate litigation.  He can be reached at his Rexburg office (208) 359-5883 or jeff@beardstclair.com

Staff at 3:34 PM
Family Law
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