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TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Except for some minor variations, laws regarding community

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Except for some minor variations, laws regarding community property probably follow the same general guidelines from state to state. Hypothetically speaking let's say I am a retired state employee and have been living on my pension alone for approximately 10 years. I meet someone who is still working and for all intents and purposes is considered the breadwinner of our family. My house is paid for and my retirement is more than enough for me to take care of my half of the bills and support my only hobbies completely without any of her income involved. We each have separate checking accounts and are funds are never co-mingle. One of my hobbies is collecting rare books and I already have a substantial collection before Marco friend and I are married. As time goes by I sell some of my older books in order to purchase new ones in any additional cost would come out of my retirement checks and likewise her stamp collecting is not funded by any of my pension funds. 20 years later we decide to terminate the marriage and since the house was mine prior to the marriage there's no problem there. Does either spouse have a claim on any stamps or books collected by the other during the 20 year marriage? Everyone seems to have an opinion on the subject but strictly speaking just because you happen to acquire something during the marriage doesn't make it community property does i't? If you could put some edges on this I would greatly appreciate it, I know there are many variables which is why I kept it simple. A codified source or case decisions on the subject would be terrific.

Thank you for your question. To clarify, you are asking whether the proceeds of separate property sold during marraige become community property. In Idaho, the proceeds remain separate property, but must be proven to be so by the party wishing to count them as separate.

1. All property acquired by either spouse during coverture is presumed to be community property, and the burden of proof rests upon the party who asserts it is separate property to show such fact by a preponderance of evidence.

2. The separate property of either spouse may undergo mutations and changes during the marriage relation and still retain its separate character, yet the proof to trace and identify it in its changed condition must be clear and satisfactory.

Clifford v. Lake, 33 Idaho 77 (Idaho 1920)
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Customer: replied 4 years ago.

if I read this decision correctly, my retirement income remains separate property because it was earned and implemented well before the marriage while her income becomes community property at the time of the marriage and remained so until the marriage is terminated. Is that correct?


In Idaho, separate property is defined in Idaho Code §§ 32-904, 32-905. Community property is defined in Idaho Code § 32-906 as all other property acquired after marriage by either husband or wife is community property. Retirement benefits, to the extent earned during marriage, are deemed community property. Generally, community property will be divided in a substantially equal manner unless there are compelling reasons which justify otherwise. Idaho Code § 32-712 (1). Therefore, absent compelling reasons which justify otherwise, it is settled beyond dispute that there shall be a substantially equal division of pension benefits which were acquired during the time of the marriage. Idaho Code § 32-712.

Maslen v. Maslen, 121 Idaho 85 (Idaho 1991)
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