Fault divorce is unpopular because it is a contest with no direct prize pot. Courts may consider the effect of facts related to marital misconduct when determining property division, alimony, or child custody, but fault grounds for divorce do not trigger—nor are they necessary to justify—an award of more money, time, or decision-making rights to one spouse. An official finding of adultery or extreme cruelty in family law cases does not have the gravity of a guilt, fault, or breach in criminal, tort, or contract matters respectively.

Depending on the facts of the case, securing a fault basis for a divorce could be easy or hard and expensive. But even if one meets the burden to prove fault, there is no presumption that carries forth into the division of assets, alimony, or custody. So why discuss a valueless legal theory? Because without the broader context of other legal subspecialties, it is hard for distressed family law clients to believe this short answer is true, that marital misconduct could be irrelevant. For the purposes of this article, we will assume that Idaho marriages without prenuptials to the contrary are agreements between two people to exclusively divide labor, share resources, and love and care for each other.  

This article explores the unique nature of the concept of fault in the context of marital misconduct, division of community property, child custody, and alimony and compares it to the structure of awarding damages in tort. I will explain the family law statutes, and review four illustrative cases.

Title 32 covers domestic relations in Idaho, including eight grounds for divorce in §§ 32-603-09, child support, court costs and attorneys’ fees in 32-704, alimony and child support in §§ 32-705-6, distribution of community property in §32-712, and child custody in §32-717.  There are seven causes of fault-based divorce in § 32-603, and fault can even be assigned in the eighth option of  “[i]rreconcilable differences.” Adultery is defined in § 32-604 as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife” and requires “very clear and conclusive evidence” of a “specific act.”[i] Adultery is not a crime in Idaho.[ii]

            “Extreme cruelty” is described in § 32-605 as “the infliction of grievous bodily injury or grievous mental suffering…”[iii] In divorces initiated following a domestic violence incident resulting in a guilty plea or verdict, establishing fault by extreme cruelty seems straightforward. But to fully recover from a domestic violence issue would theoretically require three separate court cases: a criminal, family, and civil tort claim. In criminal court, only the state can prosecute crimes which carry the possibility of jail time and probation conditions and are recorded as part of a person’s criminal record. The criminal court can award restitution for economic loss including lost wages and medical expenses under §19-5304. Pain and suffering and emotional distress are expressly excluded from §19-5304, so a victim would have to initiate a separate civil tort claim for those losses. Finally, the family court would adjudicate the divorce, but its role is limited to fairly distributing the parties’ community property and children. The right to a trial by jury applies to both criminal and tort matters, but not in family court.

Judges may consider  “the fault of either party” when awarding maintenance or assigning attorneys’ fees. Caselaw clarifies that fault here is not interchangeable with the fault as the grounds for divorce.[iv]

This fault grounds for divorce is distinguished from the “fault of either party” description of non-exclusive non-mandatory factors for consideration regarding spousal maintenance and attorneys fees. Often judges have applied this to mean fault with direct financial consequences.

The concept of fault enters the analysis for distribution of property only if either spouse “dissipated or wasted marital assets by spending marital funds in some improper way, thus reducing the amount of marital assets available for distribution.”[v] “Expenditures made and indebtedness incurred during the marriage are presumed to be for the benefit of the community unless the spouse alleging dissipation can demonstrate that the dissipating spouse spent community funds on something other than the community.”[vi] The financial cost of flowers, hotels, and gifts for an affair partner, for example, can be reimbursed in the distribution of property, but the emotional distress, pain and suffering, loss of consortium or enjoyment, even loss of earning capacity or missed work cannot.

A finding of fault does not affect custody. Custody is determined by a factual analysis of the best interest of the child under § 32-717. The child’s best interest—not the rights of the parents—is of paramount importance. To determine the child’s best interest, the count must “consider all relevant factors” related to their custody, care, and education.[vii] Though the court is required to consider “domestic violence” in § 32-717(1)(a)-(g), “unless one parent is a habitual perpetrator of domestic violence, courts are required to apply Idaho’s presumption that an award of joint custody is in the children’s best interests.”[viii] It is possible to overcome this presumption with evidence that declining to award joint custody would actually serve the children’s best interest.[ix]

In 2024 in Farnsworth v. Farnsworth, the husband stipulated to fault by adultery and extreme cruelty, but it had no effect on the distribution of property.[x] The court did award wife attorneys fees under 32-704, but only for those fees related to the time she wasted preparing to pursue the claims of adultery and extreme cruelty at trial, because the husband stipulated only once trial began.[xi] The court went further stating “it is tempting to vindicate a sense of justice and award [wife] all attorney’s fees on fault grounds….However,….the Court believes it would be improper to have the determination of attorney’s fees issue turn on one factor.”[xii].The wife still had to split the equity in their house and the earnings from a trust fund she had owned before the 21-year marriage.[xiii]

In O’Halleran v. O’Halleran, the wife filed for a fault divorce and husband countered based on “habitual intemperance, extreme cruelty, and irreconcilable differences.”[xiv] The magistrate granted wife’s motion to amend her complaint to add a tort claim requesting damages for emotional trauma, physical abuse, and stress husband allegedly caused her during the marriage.[xv] Eventually the magistrate granted the divorce based on irreconcilable differences, divided the property and awarded alimony to wife but was silent on her tort claim.[xvi]  On remand, the magistrate found that husband “physically battered, intimidated, and harassed” wife and awarded her $20,000 in damages. [xvii]

However, the Idaho Supreme Court ultimately reversed the tort award for multiple reasons. It noted that the magistrate had jurisdiction over the case but still lacked the authority to rule on it because it had never been assigned the case. I.C.A.R. 5 requires District judges to approve the assignment of cases to magistrates and “the amount of damages or value of the property claimed does not exceed $10,000.”[xviii] “The order of the district judges stating the assignment of cases to magistrates must be posted in a conspicuous place in the clerk’s office in each county in the district…”[xix] Wife sought more than the damage limit set by the Seventh District’s order assigning cases to the magistrate, and her tort claim could not be bootstrapped to the divorce proceeding as an ancillary matter.[xx]

The Court determined that “[t]ort claims are not ancillary to divorce proceedings because tort claims are not necessary to aid, decide, or enforce the divorce or any divorce-related matters such as spousal maintenance, child custody, child support, or community property.”[xxi]

The Idaho Rules of Family Law Procedure 102 further provides that the Idaho Rules of Civil Procedure do not apply unless expressly incorporated by reference within the IRFLP.[xxii] Because of this, I.R.C.P. 18 permitting joinder of claims is not incorporated by reference within the I.R.F.L.P., and so “specifically preclude[s] joinder of other, non-divorce claims in a divorce action.”[xxiii]

Finally, the Idaho Supreme Court noted that the divorce court is one of equity and so lacks the right of a jury trial necessary to adjudicate questions of law. “The right to a jury trial applies only to legal claims, and not equitable claims.”[xxiv] “Marital tort actions may not be joined into a divorce action because a civil action in tort is fundamentally different from a divorce proceeding, and that the respective issues involved are entirely distinct.”[xxv]

In Danti v. Danti, the parties separated, and husband admitted to an intimate relationship with the a person other than his spouse.[xxvi] In an apology attempt gone wrong, husband was charged with domestic battery for an incident that took place in front of one of the children.[xxvii] Husband pled guilty to the lesser charge of disturbing the peace, a no contact order precluded him from living with his wife, and husband moved in with his mistress.[xxviii] Custody exchanges were fraught with conflict between the parties, and they reported each other to the police alleging various crimes.[xxix]

Wife then filed for a fault divorce based in part on adultery, and extreme cruelty.[xxx] After a trial, the court granted wife a divorce on those grounds.[xxxi] The court awarded the parties joint legal custody of the children, but sole physical to wife with permission to relocate to California.[xxxii]

Husband appealed and the court determined that that the factor of “domestic violence [was] of little consequence” to its decision awarding custody to wife.[xxxiii] The court allowed her to move back to California with the children because it found evidence that rebutted the presumption of joint custody, based on a separate inquiry, that joint custody was not in the best interest of the children. [xxxiv] This evidence included that father was “condescending, dictatorial and confrontational” with his older daughter, and had “poor impulse control, an alarming lack of insight into how his behavior affected [his older daughter] and an inappropriate manner of attempting to manipulate [her] feelings.’”[xxxv]

In Larson v. Larson, husband “began to develop a more personal relationship” with an assistant in his medical office. [xxxvi]  The parties separated, and husband’s extramarital relationship became intimate.[xxxvii] Meanwhile, wife’s accountant told her that she was entitled to 50 percent of her husband’s earnings, so she increased her spending on cars, travel, clothing, gifts, and loans to friends.[xxxviii]

Husband filed for divorce on the basis of irreconcilable differences, and wife countered for a fault divorce based on adultery and extreme cruelty. The court denied wife a finding of fault under § 32-603 despite noting that husband did engage in an “intimate” relationship with someone other than his wife while the parties were still married. Wife did not appeal this portion of the case.

Instead, the appeals court focused on Mrs. Larson’s expenditures during the separation. The court determined that the wife “had intentionally diverted, without [husband’s] consent or approval, approximately $390,727.92 of community funds to her own use during the period of separation” and so that sum was credited toward wife’s allocation of community property. [xxxix] Otherwise, the distribution of community property was equal.

Siloing the various recoveries for the damage caused by marital misconduct between the criminal, civil, and family courts makes procedural sense.  To the client, the idea that their faithfulness—the core value of their most sacred relationship—has no monetary value is almost insulting, but if family law attorneys can get their clients to accept the fact, it does spare the client the emotional turmoil of hiring a private detective to document evidence of penetration of the marital veil.

Jen Neyenhouse, Esq. is an Idaho Supreme Court Approved Civil and Child Custody Mediator and Idaho solo-practitioner. She graduated from Vermont Law School in 2018, practiced in Vermont until 2021 when she moved to Idaho with her daughter.

[i] See Rice v. Rice, 46 Idaho 418, 267 P. 1076 (1928); Brown v. Brown, 27 Idaho 205, 148 P. 45 (1915).

[ii] Session Laws 2022, Ch. 124, Section 1 repealing portions of Idaho Code 18-6601

[iii] Farnsworth v. Farnsworth, 174 Idaho 822, 840, 560 P.3d 565, 581 (Idaho App. 2024)

[iv] Marmon v. Marmon, 121 Idaho 480, 482, 825 P.2d 1136, 1138 (Idaho App. 1992).

[v] Larson v. Larson, 139 Idaho 972, 977, 88 P.3d 1212, 1217, (Idaho App. 2003)(citing See 24 AM. JUR. 2D Divorce and Separation § 560 (1998)). See also In re Marriage of Seversen, 228 Ill. App.3d 820, 170 Ill.Dec. 858, 593 N.E.2d 747, 749 (1992); Harris v. Harris, 261 Neb. 75, 621 N.W.2d 491, 501 (2001).

[vi] Larson v. Larson, 139 Idaho 972, 977, 88 P.3d 1212, 1217 (Idaho App. 2003).

[vii] Danti v. Danti, 146 Idaho 929, 934–35, 204 P.3d 1140, 1145-50 (Idaho 2009).

[viii] Id. citing I.C. § 32-717B(1), (4) & (5); see also Hopper v. Hopper, 144 Idaho 624 , 626, 167 P.3d 761, 763 (2007).

[ix] Danti, 146 Idaho at 935, 204 P.3d at 1150.

[ix] Id. at 933, 204 P.3d 1144.

[x] Farnsworth v. Farnsworth, 174 Idaho 822, 829, 560 P.3d 565, 572 (Idaho App. 2024).

[xi] Id. at 838, 560 P.3d at 581.

[xii] Id.

[xiii] Id.

[xiv] O’Holleran v. O’Holleran, 171 Idaho 671, 672, 525 P.3d 709, 710 (2023).

[xv] Id.

[xvi] Id. at 672 –73, 525 P.3d at 710-11.

[xvii] Id. at 673, 525 P.3d at 711.

[xviii] Id. at 674, 525 P.3d at 712

[xix] Id.

[xx] Id. at 675, 525 P.3d at 713

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Id. at 676, 525 P.3d at 714.

[xxv] Id. citing Ward v. Ward, 155 Vt. 242, 583 A.2d 577, 580-81 (1990).

[xxvi] Danti, 146 Idaho at 932 204 P.3d at 1143.

[xxvii]  Id. at 933, 204 P.3d at 1143,

[xxviii] Id.

[xxix] Id.

[xxx] Id.

[xxxi] Id.

[xxxii] Id.

[xxxiii] Id.

[xxxiv] Id.

[xxxv] Id.

[xxxvi] Larson, 139 Idaho at 974, 88 P.3d at 1214.

[xxxvii] Id.

[xxxviii] Id. at 976, 88 P.3d at1216.

[xxxix] Id. at  977, 88 P.3d at 1217.