Topics
Suggested Responses to FAQs From SelfRepresentatives
Lawyer,
Representation
1.
Lawyer
2.
Do I need a lawyer? Or Should I hire a lawyer?
A person is not required to have a lawyer to bring a case to court. The Court
Assistance Office has forms and instructions for some routine types of civil cases.
You can look at the forms and information and decide for yourself. If you represent
yourself, you will be expected to know Idaho laws and court rules just like a lawyer.
The laws and court rules are complex. Your lack of legal knowledge may cause
you to make serious mistakes. We always recommend that you talk to a lawyer
about your legal problems before filing any legal paperwork.
Can you give me the name of a good lawyer?
We cannot recommend a particular lawyer. You can contact the Idaho State
Bar Lawyer Referral Service (1-208-334-4500) for the name of a lawyer who
practices in the area of law that you need and who will give you a half-hour
consultation for $35.00.
Civil Procedure,
Defendant, 20
Days, Answer,
Counterclaim
3.
Venue,
Jurisdiction
4.
Venue,
Jurisdiction
5.
Venue,
Jurisdiction
6.
I was served with a notice that I have to file a written response with the
court within 20 days, can I just write a letter to the judge?
There are court rules about what is included in a written response and about
how a response must be formatted. It will need to look like the court documents
you were served. If you agree with everything the other person asked for, you do
not need to file a written response. If the case is a family law case, we have
standard forms for both a Family Case Answer and Family Case Answer and
Counterclaim. In a divorce case if you want the judge to order a different property
or debt division, parenting plan or child support, you would use the Answer and
Counterclaim form.
Does my divorce have to appear in the newspaper?
Divorces are public records. There is nothing you can do to prevent the
information from being published.
What county do I file my divorce in?
The instructions do not say that you have to file in a certain county. When you
file any type of civil action, you usually file in the county where the defendant lives.
If you file in another county, the defendant may take steps to ask the court to
transfer the case to the county where the defendant lives.
I bought a product on the internet and still haven’t received it. Can I
sue in small claims to get my money back?
The issue of where to sue is a complicated one. Although you can sue an out of
state business in small claims, the claim must be one that arose in Idaho. You can
find general information on the web and then consult an attorney about the facts of
your case.
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Marriage
7.
Who can perform a marriage?
A current or retired justice or judge, a current or former governor or lieutenant
governor, a mayor, or a priest or minister of the gospel of any denomination may
perform a marriage ceremony in Idaho.
8.
What if they aren’t really a minister?
If you and your spouse consummate the marriage believing the person was a
minister, the marriage is still valid. To prove the marriage you will need to make
sure your marriage license was returned to the County Recorder after the
ceremony.
Divorce, Military
9.
I am filing for divorce, but my spouse is in the military. He wants the
divorce too. How do I get a divorce?
If your spouse is in the military and on active duty, you should pay attention to
the Servicemembers Civil Relief Act. If your spouse wants the divorce, there is a
part in the Acknowledgment of Service form where s/he can waive those rights
after talking with a superior officer. Your spouse can also get some legal services
through the military if s/he has questions.
If your spouse will not cooperate, you should talk to a lawyer before deciding
when to file for divorce.
Divorce with
Children,
Expecting
10.
We are getting divorced (or seeking a custody order if we were never
married). We have one child, and I am pregnant with another child. Do
I include my baby who is not born?
No. You can file your case now and then after the baby is born you file to
modify (change) the court order. There is a place on our standard forms for you to
state that you are pregnant.
Divorce without
Children,
Expecting
11.
Expecting,
Husband not
Father
12.
Community and
Separate Property
13.
We don’t have any children but I’m pregnant. Which forms do we use?
Our forms for divorce without children have a place for you to state that you’re
expecting. After the baby is born, you can file a modification to obtain a custody,
visitation and support order.
I see a section where I can state that my husband is not the father of
the child I’m expecting; what will happen if I don’t fill that out?
We can’t tell you what will happen. Generally, a husband is considered to be the
father of any child born to or conceived during a marriage. If another man does not
acknowledge paternity of the child, your husband may be responsible to pay child
support and cover birth costs once the child is born.
We bought some things together before we got married and don’t know
if that’s community or separate property.
If the definitions in the instructions don’t help you determine if property is
community or separate, we’d recommend that you consult with an attorney who
can analyze your facts and advise you.
Child Support,
Unknown Income
14.
I don’t know what my ex/spouse makes, can I just list my income on
the Affidavit Verifying Income?
Since child support is based on the income of both parents, you’ll need to provide
some information about the other parent’s income. When you don’t know what the
other parent earns, you can use their earnings form the last time you were in court;
or contact the Department of Labor to find out what the prevailing wage is in the
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place they live for the type of work they do. If you are estimating income in this
way, you should put an * by the entry and then explain on the form how you came
up with the figure.
Child Support,
Public Benefits as
Income
15.
Child Support,
Income of Child
16.
Where do I put the Social Security monies I receive because the kids
Dad is disabled?
The SSDI benefits are included in Dad’s income. So Dad's income includes
his SSDI check and any SSDI the children receive. If the children's checks go to
Mom’s household there’s a reduction dollar for dollar from the child support amount
to be ordered. You put the income on line A.4 of the Affidavit Verifying Income.
When you complete the child support worksheet, you include a reduction of support
to be ordered in the amount of the children's benefits. You can explain this in the
section for "Comments" at the bottom.
My child gets SSI benefits because she is disabled. Does that affect
child support?
If your child receives a disability benefit, that is not counted as income to either
parent. A child’s benefit is counted as income to a parent only if the benefit is
received because of that parent’s disability. When child support is ordered, you
should report the change to the Social Security Office, and it will have some effect
on the SSI amount. If you do not report it, Social Security may find that your child
has been overpaid and may recover the overpayment from future benefits.
Child Support,
Parent’s Income
17.
My ex-wife receives child support for her other kids. Does that count
as income.
No. The income your ex-wife receives as child support does not count as her
income. If you have questions about how income is defined by the Child Support
Guidelines, read Sections 6 and 7 of the Child Support Guidelines.
Child Support,
Public Benefits
18.
A Health & Welfare worker told me that I can count other benefits like
Section 8 in the other parents income, how does that work?
The Child Support Guidelines state: “Benefits received from public assistance
programs for the parent shall be included except in cases of extraordinary
hardship.” SSI or Temporary Assistance cash benefits are for the parent. Some
benefits, like housing, Foodstamps and child care, are for the parent and the
children. The Health and Welfare worker may be able to tell you what amount is a
benefit for the parent.
Child Support,
Worksheets
19.
EIC
20.
Which child support worksheet do we use?
If your children are in the homes of each of you for at least 92 days out of the
year; you use the Shared, Split, Mixed Custody child support Worksheet. You also
use the Shared, Split, Mixed Custody Worksheet if you have more than one child
and they are primarily living with different parents, some with Mom and some with
Dad.
My divorce Decree says my ex-husband gets to claim the children as
dependents. Does that mean I cannot get the Earned Income Tax
Credit?
According to the IRS: To claim the credit using a child, the child must be your
“qualifying child” by meeting all relationship, age and residency tests.
The residency test: The qualifying child must have lived with you for more than
half of the tax year.
The relationship test: The qualifying child can be a son, daughter, adopted
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child, grandchild, stepchild or foster child. A qualifying child also can be a sister,
brother, stepsister and stepbrother or any of their descendents if you care for them
as you would your own child.
The age test: The qualifying child must have been, at the end of 2003, under
age 19, a full-time student under age 24 or any age if permanently and totally
disabled.
You can use the filing status of single, head of household, qualifying widow(er)
or married filing jointly. You cannot use the filing status of married filing separately.
If you have a computer with internet connection you can use http://www.efile.com
to figure any Earned Income Tax Credit for free. If you use that site you will have
to print off and mail in the forms.
Additional Child
21.
We already have a court order of custody and visitation, but now we
have another child. Do we file a new case, or use the forms for
modifying our old order?
Our instructions tell you to file for a modification in the same case as your old
order. This way all of the children will be under one order.
Legal Separation
22.
My husband and I are separated. We do not want a divorce, but I want
an order for visitation and child support. What forms can I use?
We do not have standard forms for a legal separation. If you wanted to study
the court rules and our standard forms for divorce, you might be able to change
those forms to work for you. If not, we recommend you hire a lawyer to prepare the
documents.
Emancipation
23.
How do I get a court order of emancipation for a minor?
Idaho law does not provide for the emancipation of minors except through
marriage.
Annulment
24.
I’ve only been married 5 weeks, can I get an annulment?
We have a brochure that explains annulment proceedings in Idaho. It states
that there are six grounds for an annulment in Idaho. They have to do with a legal
inability to enter into a valid marriage contract. The grounds are: 1) you were
under 18, did not have a parent’s or guardian’s consent and you haven’t lived
together since you turned 18; 2) the former wife or husband of one of you is still
living and the prior marriage was not legally ended; 3) either of you is of unsound
mind and you don’t live together after coming to reason; 4) the consent of either
spouse was obtained by fraud and you did not live together after the fraud was
discovered; 5) consent was obtained by force and you do not continue to live as
man and wife; 6) either of you were physically incapable of entering into the
married state, the incapacity continues and appears incurable.
If you think your situation matches one of the grounds, it is a good idea to talk
to a lawyer to make sure you understand if the law applies to you. We do not have
standard forms for filing for annulment, but after talking to a lawyer, some people
learn how to change the Divorce forms if they are seeking an annulment.
If those six grounds do not apply to your case, we have forms and instructions
that allow you to ask for a Decree of Divorce, if you want to take that step.
Annulment, Forms
25.
A lawyer told me I can get an annulment and you can help me with the
paperwork.
Our program does not have any standard forms for annulment. We do have
standard forms for divorce that you could use as an example of how court
documents must be prepared. Some of the standard forms for divorce can be used
if you file for an annulment, but you have to change the Complaint and the Decree.
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The filing fee for an annulment is currently fee category F. 2 and the fee is $83.00.
You start the procedure by filing a Complaint and having a Summons issued. We
do have a standard form for the Summons that you can use. The Summons
notifies your spouse that you’ve filed a case. After you file your Complaint, you
must have your spouse served with a copy of the Complaint and the Summons.
Your spouse will then have 20 days to file a written response with the court if s/he
disagrees. If your spouse doesn’t file a written response, you can take default
against him/her and obtain a judgment after a court hearing. We have standard
forms for service and for default, and standard instructions that outline those
procedures.
Amended
Pleadings,
Complaint
26.
Amend Pleading,
Decree
27.
Filing An Answer
in Collection
Lawsuit
28.
I made a mistake when I filed my Complaint. I want to change what I
am asking for. How can I do that?
If the other party has not yet filed a response, you prepare a new document
with the changes you want. You have to make it clear that this is a different
version of the first document. You do this by writing “AMENDED” in front of the
document title on the first page and at the bottom left of each page (for example,
“Amended Complaint”).
If you are amending a Complaint or Petition, you also have to prepare a new
Summons. You do this by changing the title of the form to “ANOTHER
SUMMONS.”
You must have amended documents served on the other party in the same
way you served the first ones. After serving amended documents, you have to give
the party the full amount of time to respond. For example, if you serve your spouse
with and Amended Complaint for Divorce and Another Summons, your spouse has
20 days to respond to the court.
If your spouse has already filed a response to your first Complaint, it is more
complicated to try to change your documents. In that case, read the court rule
IRCP 15(a) to decide what to do, or talk to a lawyer.
We noticed a mistake in our Divorce Decree. How can we fix it?
To correct a mistake in a Decree you prepare and file both a Motion to Correct
the Decree and an Amended Decree that is correct. If you and your spouse are in
agreement, you can file a Stipulation to Correct the Decree and an Amended
Decree that is correct.
Courts Rules IRCP 59(e) through 60(b) talk about correcting errors in
judgments or orders, if you have questions.
I know that I owe this money, but I can’t pay it. The summons I
received says I have to file an appropriate written response with the
court within 20 days. What does that mean?
In a civil case, a defendant may file an “Answer” or an “Answer and
Counterclaim.” People usually file these documents when they disagree that they
owe the money, or disagree with the amount. If you agree with everything in the
Complaint, you do not have to file anything, but the other party will get a judgment
against you by default. If you file a response, you will have to pay the $52 filing
fee, unless a judge waives your filing fee. Also, if you file a response and disagree,
and the case goes to hearing or trial, you may increase the attorney fees that you
owe if the judge decides for the plaintiff, the person who sued you.
If you think you have a defense in a collection lawsuit, it is a very good idea to
talk to a lawyer about your Answer and how to present your case. You can get a
consultation with a lawyer for $35 through the Idaho Bar Lawyer Referral Service at
1-208-334-4500.
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Name Change of
Minor
29.
I want to get my baby’s name changed to the father’s last name. How
can I do that?
In Idaho, there is a name change procedure and court forms for seeking a
Name Change Order. These forms and procedures work for adults or for minors.
Sometimes, before the child is a year old, the Bureau of Vital Statistics can
change the name on the baby’s birth certificate. This may be possible if you are
adding or correcting the father’s name, or if you are correcting an error in the
baby’s name. There are different affidavits (sworn statements) that allow parents to
change the birth certificate, depending upon the circumstances. Some of the forms
available to change the birth certificate are: Paternity Affidavit, Subsequent
Marriage Affidavit, and Correction Affidavit. You can contact the Department of
Health and Welfare Vital Statistics telephone recording at 208 334-5988 for more
Information.
A third way to change your baby’s name is for you to file a custody case. I
have two different sets of standard forms for custody cases; one set for when both
parents agree and one for when only one parent is asking for the custody order.
Appeal
30.
How do I file an appeal of a civil case?
We don’t have a handout that deals with appeals. The Supreme Court has a
publication that has links to the Idaho Appellate Rules. Those are the rules about
appeals. If you have trouble understanding the rules, you should consult an
attorney.
H&W Seeking
Reimbursement
31.
I received court papers saying that the State of Idaho is trying to get
$10,000 from me to pay for my baby’s birth. What can I do?
If you disagree with owing the money, you can file an Answer in the case. We
have a standard form for an Answer in a Family Law Case.
UCCJEA
Modification
32.
I need to change my Arizona Divorce Decree because the kids are
living with me. How do I do that?
If any parent or any child still lives in Arizona, or if you and the other parent are
in agreement, you can file documents in Arizona to modify your parenting schedule
and child support. If no parent or child still lives in Arizona, you can ask the
Arizona court to give up or relinquish jurisdiction, and the Idaho court to accept
jurisdiction and then file a motion to modify your custody and support order in
Idaho. We have standard forms for modifications, but not for obtaining jurisdiction
in Idaho.
If you need to take an action in a court in another state, you may find forms
and self-help resources on the Internet.
Power of Attorney
33.
Can you tell me where I can find a Durable Power of Attorney form?
Our attorney said we need one so we won’t have to do a guardianship
if something happens to one of us.
If you are low-income, you may be able to work with an attorney from Idaho Legal
Aid Services or an Idaho Volunteer Lawyer to get a Durable Power of Attorney.
The closest Idaho Legal Services office is 310 N. 5th, Boise, 345-0106; 708 Main,
Caldwell, 452-2591; 633 Main, Lewiston, 743-1556; 410 Sherman, Coeur d’Alene,
667-9559; 475 Polk, Twin Falls, 734-7024; 150 S Arthur, Pocatello, 233-0079; 482
Constitution Way, Idaho Falls, 524-3660. You can contact the Idaho Volunteer
Lawyers Program at (208) 334-4500.
There are different kinds of powers of attorney. You can find information about
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different powers of attorney at nolo.com . Some community organizations such as
banks and hospitals provide forms for power of attorney.
Landlord Repairs
34.
My landlord says he won’t repair the front steps, doesn’t he have to do
that?
We can’t answer that question. We have a pamphlet from the Idaho Attorney
General’s Office that explains landlord-tenant law. Idaho law does require your
landlord to provide reasonable water-proofing and weather protection; install
approved smoke detectors and provide premises that are not hazardous to the
health and safety of a tenant. A landlord who provides electrical, plumbing,
heating, ventilations, cooling or sanitary facilities must maintain them in good
working order. You must first contact the landlord to request any repair. We
recommend that you keep a copy of the letter you write asking for the repair. You
can deliver the letter personally, leave it with an employee at your landlord’s office,
or send the letter certified mail. If you deliver the letter you can have the landlord
sign to indicate he received it, or take a witness along with you so you can prove
your landlord received the letter. You have to give your landlord three days to
make the repairs. If the repairs aren’t made, you can sue for the repairs. We have
standard forms for a demand letter to the landlord, the proof of service and the
lawsuit for repairs. If the repairs cannot be completed in three days, and you and
your landlord agree to more time, we recommend that you write out and sign the
agreement, and each keep a copy. If you are not sure whether the repairs you
want are required by Idaho law, or if you should agree to more time for the repairs
you should get a consultation with an attorney before deciding what to do.
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