INSTRUCTIONS
FOR FILLING OUT DIVORCE COMPLAINT WITH CHILDREN INVOLVED
These
instructions will tell you step-by-step what information you need
to provide the court when filling out your divorce complaint.
Read these instructions over carefully and, in addition,
familiarize yourself with the blank divorce Complaint form BEFORE
you begin typing in the information asked for.
Also, if
it’s been a while since you’ve typed anything, you
might consider photocopying the complaint and summons and
practice on the photocopies before you start typing on the
original forms. You will be expected to file neat looking,
readable forms. While you are not an attorney, you will
still be held to the same standard when it comes to presenting
pleadings to the Court.
Do NOT
simply write in the information asked for in the blanks. You
are expected to present TYPED pleadings and documents.
TOP LEFT CORNER: Type your FULL
name, your mailing address (including Zip Code) and your phone
number (including your area code) on the lines provided.
CASE
NAME (Plaintiff vs. Defendant blanks): Type your FULL
name on the line for plaintiff, e.g. MARY JANE DOE and type your
spouse’s FULL name on the line for the defendant, e.g. JOHN
JAMES DOE.
CASE
NO.: For the Complaint and Summons, you won’t type
anything in because the Clerk will not give you a number until
the Complaint is filed. However, after you file the
Complaint and the Clerk issues the Summons, you will be given the
number of your case. You will be expected to type that
number on all future pleadings you give to the Court, such as the
Decree of Divorce and default pleadings.
This is a set paragraph. You provide no
information for it.
In the
blank, type in the date you were married, e.g., April 1, 1998.
Type in
the town and state you were married in, e.g., Reno, Nevada.
This is a
set paragraph. You provide no information for it.
Here we
are simply talking about the two of you purchasing or having
purchased land during your marriage.
If you
simply rented an apartment or mobile home which is not
permanently affixed to land you own or are purchasing and you
have no land, type an “X” in the box before the
statement, “no community real property.”
If you have purchased or are purchasing land,
type an “X” in the box before the statement “community
real property located at ...”
In the first blank after the words “located
at” type in the street address. In the next blank type
in the City, in the third blank type in the County, and in the
last blank type in the State.
On the four blank lines, you will type in the
actual legal description of the property located at the address
you gave. You will find the description in the deed or
contract of sale given at the time you entered into the agreement
for the purchase of your land and residence. Do NOT use the
description from your property tax statement.
This
paragraph tells the judge how you want the community real
property to be awarded or divided up. Obviously, if you don’t
have any community real property, don’t worry about
Paragraph V--go on to Paragraph VI, instead. In Paragraph V,
the five (5) most common dispositions of community real estate
are given. Pick the one that sets forth your plan for the
disposition of your real property by typing an “X” in
the box before the statement that fits your plan.
In the first and second alternatives, you
plan to have the real property sold and to divide the net
proceeds of the sale. (Net proceeds, in general, are all
sums of money left to be distributed after the costs of sale and
any liens or mortgages on the property have been paid.) Note
that in the first alternative, the split between the parties is
equal. This is the most common method. In the second
alternative, blank lines are provided for you to set out what the
actual split is or to whom the proceeds will be distributed.
For example, “one-third (1/3) to the plaintiff and two-thirds
(2/3) to the defendant.”
In the third alternative, the real property
will be awarded to one of the parties, e. g., “defendant,”
subject to any liens on the property in favor of the bank,
mortgage company, or other business or person financing your
purchase, e.g., “Gem State Mortgage Company.” The
third blank is asking for the approximate amount (round up) of
the debt remaining on the mortgage or other lien. Therefore,
you need to type in the information asked for in the three blanks
under the third alternative if this one fits your plan.
The fourth and fifth alternatives speak for
themselves. One party will receive the community residence
from the other. However, the parties (that is, the “community”)
usually will have an “equity” in the residence, whether
it’s completely paid for or not. Furthermore, each
party is entitled to one-half (1/2) of that equity when the
marriage ends. For example, if the community residence is
worth $70,000 but only $20,000 is owed on the residence, the
community has an “equity” of $50,000 in the residence
and each party would be entitled to $25,000 of that equity.
Therefore, if you decide that one of the parties will receive the
community residence upon the payment by the party keeping the
residence to the party who will leave, type an “X” in
the box that is before the correct disposition and in the blank
line, type in the amount of equity that will be paid by the party
keeping the residence to the one who is leaving. If
virtually no equity exists and the parties agree that one will
simply keep the residence and continue making the mortgage
payments on his or her own, type in “0" after the
dollar sign ($).
If none of the alternatives work, use the
blank lines provided for in the second alternative after you have
carefully “lined out” the words “ordered sold and
the net proceeds...” BUT KEEP THE WORDS “divided
as follows.” Then type in what your plan is for how
the real property is to be divided. For example, “Plaintiff
will live in the community residence for five (5) years, pay all
mortgage payments, taxes, and maintenance costs, then the
property will be sold and the net proceeds will be divided
equally between the parties.”
Carefully
type an “X” in the box before the statement that
accurately conveys the facts. NOTE: If you pick the third
alternative that references Exhibits “A” and “B,”
you must type out the property in detail to be awarded each of
the parties on those Exhibits and attach them to the Complaint.
Here,
certain property either owned by one or both of the parties
before the marriage or certain property acquired during the
marriage by gift or inheritance or through other circumstances
making it the separate property of that party, is to be confirmed
as the separate property of the party in question. That
party gets to keep it.
Idaho Code section 32-903 defines separate
property as “(a)ll property of either the husband or wife
owned by him or her before marriage, and that acquired afterward
by either 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.”
What separate property is NOT: Something
purchased during the marriage, say a home or a car, with the sole
earnings of only one of the parties which were earned during the
marriage. Since the earnings are community property, the
item purchased is community property. (This assumes there
is not a legal agreement, properly executed and filed of record
by the parties, which changes the operation of the community
property laws of Idaho as between the parties.)
If you
have no outstanding debts, type an “X” in the box.
But if you’re like most people, you have debts that must be
divided when the marriage ends. You will pay certain debts
(the ones you type out in full detail on Exhibit “A”)
and your spouse will pay certain debts (the one you type out in
full detail on Exhibit “B”). Therefore, if the
two general statements cover how you intend to deal with all
outstanding debts acquired during the marriage, type an “X”
in each of the boxes, then type out the information required on
Exhibits “A” and “B.” Make sure these
Exhibits are attached to the Complaint when you file it with the
Clerk.
In well
over half of the divorces filed, one party has moved out of the
marital residence before the complaint is filed. Thereafter,
each of the spouses often incur additional debt--new cars, charge
cards, and the like. Sometimes the spouses know about the
other’s new debts, sometimes they don’t.
It is customary to have each spouse pay for
the debt he or she incurs during the separation.
The blank line is for the date one of the
spouses left the marital residence, for example, “December
26, 1998.” If you don’t recall the exact date,
give the closest date you can be certain of.
Place an
“X” in the box. The names, birth dates, and
present address of the children are typed in. If more than
one (1) child has been born of the marriage, start with the
oldest first and work down to the youngest.
If the wife is not pregnant at the time of
filing the divorce, type an “X” in the first box.
If the wife is pregnant, type an “X” in the second box
and fill in the additional information asked for.
Idaho’s
version of the Uniform Child Custody Jurisdiction Act requires
the information asked for previously in the Complaint. By
way of example and to assist you in typing out the information
required, your complaint might look something like this:
PLACE WHERE
PERSON CHILD
CHILD’S NAME
CHILD LIVED
TIME PERIOD
LIVED WITH
Roger David Doe
Nampa, Idaho
Nov 98-present
John Doe/Jane Doe
Lisa Marie Doe
Nampa, Idaho
Nov 98-present
John Doe/Jane Doe
Roger David Doe. Denver,
Colorado
Jan 94-Nov 98
John Doe/Jane Doe
Lisa Marie Doe
Denver, Colorado
Jan 94-Nov 98
Jane Doe/Jane Doe
This
calls essentially for a restatement of the information you gave
previously EXCEPT you give the CURRENT address of each person you
named the children having lived with in the last five (5) years.
NOTE: if any statement in part 3 of Paragraph
XI is NOT true, make sure you tell the Clerk. The Clerk
will have additional instructions for you about what to attach to
the complaint.
The first
alternative is the most common result in divorces where children
are involved. The first blank is for the party having the
primary physical custody of the children and the second blank is
for the party having visitation.
If the
parties plan to enter into a “Parenting Agreement” as a
result of mediation, set forth that fact.
If the plaintiff is seeking sole custody and
desiring to limit or deny the visitation rights usually giving to
the other parent, the facts upon which the plaintiff relies must
be set out fully and carefully in the alternatives provided.
If the defendant is guilty of inappropriate
behavior towards the children in question, is negligent or
abusive towards them, or if a domestic violence order is in
effect against the defendant where the children are involved,
those are the kinds of facts the Court needs to know about.
The Court is NOT interested in reading about your “feelings”
covering the parenting skills of the defendant. The Court
needs to have firm facts about why the defendant should be
limited in or denied visitation.
If none of the standard alternatives fit the
custody and visitation scheme you desire, type in what will be
happening using the blank lines.
A. Monetary Support: Usually
both parties are in good enough health to be employed and earn
money to support their children. Therefore, each of the
boxes before the defendant and the plaintiff usually have an
“X” typed in them.
You should also have received Child Support
Guideline information from the Clerk when you purchased your
forms. If not, get that information before you attempt to
complete the rest of the Complaint relating to Child Support.
The first
blank is for your social security number and the next blank is
for the defendant’s social security number.
If one of the parties is NOT able-bodied, for
example has a disability determination, then that fact should be
noted at the top of the page. However, if you are saying
the defendant is not able-bodied and should not be required to
pay child support, you’ve just eliminated your opportunity
to receiving child support.
B. Insurance and Medical Expenses:
Usually, the plaintiff asks for the defendant to maintain the
insurance. However, if the defendant does not have the same
opportunity to obtain the insurance through employment, but you
do, then it is customary for you to maintain the insurance.
Oftentimes, both parties maintain the insurance on their children
through their respective employment.
It is also customary for each of the parties
to pay one-half (1/2) of the medical or dental bills not covered
by insurance. However, there are often good reasons why you
or the other party pay the full amount not covered by insurance.
Whatever the plan is for you, type an “X” in the box
that best describes what you intend to do about the medical and
dental bills for the children that are not covered by medical or
dental insurance.
The next sentence deals with whether one or
both of the parties will name the children as beneficiaries to
any life insurance policies. For example, if the defendant
is to have a child support obligation, it is typical that the
defendant would also name the children as beneficiaries to life
insurance proceeds in the event the defendant passes away before
they reach majority.
C.
Child Care Expenses: This paragraph sets out whether
the parties will be sharing child care expenses and, if so, the
formula to be used.
The blank
line is to inform the Court what the former name of the wife was
and the boxes indicate whether the wife WILL or will NOT have
that former name awarded back to her. Sometimes this is not
a particularly good idea if younger children are involved and
they carry the last name of their father who is also a party to
the divorce, either as the plaintiff or the defendant.
PRAYER
8: The first blank is for the party you want the Court
to order child support against, for example the “defendant.”
The next blank is for the day of the month you want it due and
payable, for example the “1st.” The
next series of blanks is when you want the first payment to be
due and payable. For example, the “1st day of
September, 2000.”
PRAYER
10: The blank is for the party you want to be required
to maintain health and life insurance coverage for the children.
It is customary for mothers to ask that fathers be responsible
for these coverages although fathers are certainly free to ask
that mothers be responsible, as well.
PRAYER
11: Type an “X” in the box that accurately
sets out whether the former name of the wife will be restored to
her. In the blank, type in the former name whether it will
be restored or not.
Date
and sign the Complaint before a Notary Public.
Verification:
Type the name of the county and your name. You will then
sign the verification portion of the Complaint before the Notary
Public.
The Notary Public should fill in the date,
sign on the line provided, fill in the information asked below
the Notary’s signature line, and affix the Notary Seal to
the left of the Notary’s signature in the space provided.
EXHIBITS “A” and “B”: These pages have been discussed above. Make sure you neatly type the information asked for in the appropriate space.