Divorce Grounds in North Dakota
North Dakota is one of the few states that allows for permanent no-fault divorces. This means that if you and your spouse have been living separate and apart for at least one year, you can file a no-fault divorce. You do not have to provide a reason for the divorce, and you will not be required to prove any grounds for the separation.
In addition to the no-fault requirement, there is also a no-fault provision for the dissolution of marital property. If you and your spouse file for a no-fault divorce and you are unable to agree as to the distribution of the property accrued during the marriage, the court can separate the property in a manner it deems fair.
If you choose, you can file for fault-based divorce, which does require proof. There are several grounds on which you can file for divorce based on the wrongdoing of your spouse . The following lists the established recognized grounds for a North Dakota divorce:
• Abandonment
• Adultery
• Cruel and inhuman treatment
• Domestic abuse
• Fraudulent contract
• Illegal marriage
• Incurable insanity
• Impotence
• Intoxication
• Lack of mental capacity
• Misconduct
• Non-support
• Mental or physical incapacity
• Neglect of duties
• Personality disorder
• Refusal to perform marital duties
Proof of these grounds is required only in the context of a fault-based divorce. You are not required to file for a fault-based divorce, and if you chose to file under no-fault grounds, the courts will not consider the wrongdoings of a spouse.
Divorce Residency Requirements
According to North Dakota Divorce Laws, there are minimum requirements for the residency in the state before one can file for divorce. In order to file for divorce in North Dakota, at least one of the spouses must have resided there for at least six months before filing the complaint with the local District Court. This means that before the filing of the divorce papers, one of the spouses must have lived in North Dakota for at least six months. If the couple is not a resident of North Dakota, then the only grounds for divorce in the state is the action of adultery. If the couple has children, they must establish residency of the child in North Dakota as well for a minimum of six months prior to filing for divorce.
North Dakota Divorce Process & Procedure
Filing for a divorce is the first step in the divorce process. This involves filing a petition with the court stating the grounds for divorce and what you want from the divorce. Grounds are the reasons for your divorce, like adultery or abuse. While the grounds for divorce were once very important, today in North Dakota a no-fault divorce is most common. A no-fault divorce simply means that your marriage has irretrievably broken down, which is one of the grounds for divorce.
For an uncontested divorce (where you and your spouse agree on all terms), your spouse then must be served with the papers, which are in the petition. Or, if you don’t know where your spouse is, you can have the court appoint someone to serve your spouse (a process called service by publication). If you are personally served, the divorce proceedings start running from the date you are served. If your spouse received your petition by published notice, the divorce proceedings start as of the day of publication.
If you have been personally served, your spouse has 21 days to respond. If he or she is served by publication, the timeframe to respond is 21 days after the publication appears in the newspaper.
Once your spouse responds to the petition, by answering the allegations and making counterclaims, if applicable, either both you and your spouse may request mediation. Oftentimes, a judge requires the parties to go to mediation before issuing a trial date. Mediation allows both parties to work with a third-party to facilitate a negotiation or settlement. A courtroom trial is the other path if mediation fails, but judges do not want to see you on the other side of the bench. So, unless it is absolutely necessary, the judge always wants to see the parties engage in mediation.
Mediation saves the courts time and witnesses and experts do not have to be subpoenaed. Your children do not have to sit through a courtroom trial, and you and your spouse are empowered to make the decisions that will affect both of your lives going forward.
Marital Property Division
In North Dakota, the equitable distribution principle governs the division of all marital and non-marital property in a divorce. Equitable distribution does not mean the equal division of property. The court determines what is fair based upon the circumstances of each case. Equitable distribution principles are codified at N.D.C.C. 14-05-24.1.
The first step in distributing property is to divide assets and debts into "marital" and "non-marital" categories. Marital property consists of property that was acquired by either spouse during the marriage, except (1) property acquired by gift or inheritance from a third party (not including between you and your spouse), or (2) property acquired in full or in part with non-marital property. Non-marital Property consists of (1) property acquired by either spouse before the marriage; (2) property acquired by gift or inheritance from a third party during the marriage (not including a gift from one spouse to the other spouse); (3) property acquired in exchange for non-marital property; (4) property excluded from the marital estate by a valid enforcement of a prenuptial agreement; (5) property excluded with appreciation after the date of marriage; and (6) if it’s been less than a year since the Date of Marriage on the date of trial, the increase in marital property’s value.
Marital and non-marital property shall be valued as of the date of separation. Marital property does not include property acquired after the date of separation.
Once the property has been categorized as marital or non-marital, then the court is to determine the fair market value of the assets. The valuation date is as of the date of trial, and generally is based on the date the court receives the evidence. Circumstances permitting, the court can also consider evidence between the date of separation and the date of trial to determine if a business has gained value due to either spouse’s efforts, if an item of property has depreciated in value due to either spouse’s efforts, or if marital property has increased in value due to extraordinary maintenance or depreciation. The court shall only consider the increase or decrease due to the extraordinary efforts of one of the parties.
Then, the court shall equitably distribute the marital property and marital debts. No presumption exists that marital property should be divided equally. Nine factors are to be considered in the equitable distribution of marital property. The factors are (1) the length of the marriage; (2) the age, physical condition, and (3) financial condition of the both of the spouses; (4) the contribution of each spouse to the marriage; (5) the relevant credibility of the spouses and the character of the marital estate; (6) the conduct of the spouses during the course of the marriage; (7) any impairment of economic situations of a spouse through a excessive or abnormal expenditure, destruction, or concealment of marital assets; (8) the tax consequences to each party; and (9) the marital dissolution’s effect upon the spouse’s ability to make ends meet.
Child Custody and Support
The best interests of the child are the sole and controlling consideration in determining custody. North Dakota law allows parties to create their own parenting arrangement which may or may not include a 50/50 arrangement. The Court will approve this arrangement provided it is the best interests of the child and addresses four key factors: (1) whether the parent is willing to allow the child frequent, continuing, and meaningful contact with the other parent; (2) whether the parent has been the primary caregiver; (3) whether the parent has had actual care or control of the child for a significant time period; and (4) whether the parent will be able to accurately assess and meet the child’s needs.
The North Dakota Child Support Guidelines are based on an "Income Shares Model" of child support. The guidelines replace the need for a party to offer proof as to the actual costs involved in raising a child . It is based on the theory that parents would share in the costs of raising their child if they lived together. Thus, the guidelines provide a presumptively correct amount of child support to be paid by the obligor parent (the parent who pays support). To determine this amount, the following information is needed: The obligor parent is responsible for paying his or her pro rata share of the basic support and child care pursuant to the guidelines. Additionally, the obligor parent is obligated to pay his or her pro rata share of health care premiums and unreimbursed medical expenses if these amounts are in the parties’ support order. When a child support obligation is calculated, North Dakota also takes into account the tax consequences to both parties and orders the obligor parent to pay additional child support if his or her basic child support amount is taxable to the obligee parent.
Alimony & Spousal Support
In North Dakota, spousal support (also known as alimony) may be awarded to either party in a divorce action. Unless a court order states otherwise, awards of spousal support survive the death of the party obligated to pay. The code sets forth a general rule that the amount of the award substance will be determined by "applying the durational and guideline factors of subsection 1 to the extent they are fair and equitable" (when one party has a prior tax benefit, the other receives the corresponding tax burden). The factors to be considered under that rule are: Another statute sets forth an explicit durational guideline …"in a marriage of twenty years or less, the duration of an award of spousal support may not exceed thirty percent of the length of the marriage." Section (2) of this statute provides guidance in determining the duration of an award of spousal support when the parties have been married for more than twenty years. These are: As with many statutes the court is reviewing the totality of the circumstances in each case to determine the amount and duration of an award. This rule can also be used by the parties to make a 6 year marriage last 19 years and 364 days which avoids the durational guideline completely.
Legal Representation & Assistance
Given the legal nuances of every North Dakota divorce, having the right lawyer is essential to ensure that your interests are protected. If you are going through a divorce, you should immediately consult with a divorce attorney for guidance and representation.
While many people may be tempted to work on a divorce agreement on their own to save money, this can sometimes result in people unknowingly signing away rights, assets or even child custody. Any mistakes made during divorce proceedings are often difficult to undo and not without financial costs. Therefore, it’s always best to hire an experienced divorce attorney to help handle the complicated legal matters, while also ensuring they understand the emotional tolls of divorce.
If you are in need of legal representation, contact a reputable divorce attorney in your state. If you do not know an attorney, try searching for one via the American Bar Association or the American Academy of Matrimonial Lawyers. Additionally, ask friends and family for recommendations.
As well as support from family and friends, you might also be able to get support from divorce support groups in your area. Providing up-to-date information on divorce and relationships, these support groups often also offer counseling services, which can be helpful throughout the divorce process. If you’re not sure where to look, try searching online for support groups in your area.
Regardless of the resources you use, always be sure to address any issues before they manifest into problems. While divorce will most likely be tough on emotions, a divorce lawyer should help to minimize the chaos and make the process as smooth as possible.
North Dakota Divorce FAQs
The following are some common questions that individuals have when they are considering or going through a divorce in North Dakota:
How long does the divorce process take?
It generally varies by county in terms of the finalization and length of time, but most divorces in North Dakota take approximately six months to one year. It is important to note, however, that once the divorce papers are filed, you’ll likely spend a fair amount of time in negotiations with your spouse about the various terms of the divorce, which could make the whole process take longer.
Is a divorce expensive?
The cost of a divorce in North Dakota varies based on many factors which include: if you have any children, the nature of the divorce property matters, fees due to other professionals involved in your case , such as psychologists, appraisers, custodians/record keepers and accountants, and attorney’s fees. It is a common misconception that divorces are always very expensive, however, the truth is that some are (especially contested divorces) while others are more easily settled at a lower cost. It is a good idea to obtain a ballpark figure of your potential costs from your attorney, so that you will better be able to plan for the financial aspects of your divorce.
How do I file for a divorce in North Dakota?
Filing for divorce is similar to filing for any other formal change in your life. It is considered a "legal right" that you can do pro se (without assistance), or with the assistance of a lawyer. You can obtain a divorce from the appropriate clerk of court in your county.