Here are some of the key laws in North Dakota that will help you better understand what to expect when going through a divorce.
- The Basic Laws Regarding Divorce in North Dakota
- How is the Division of Property Handled?
- Retirement Plans and Pensions
- Alimony (Spousal Support)
- How is Child Support Calculated?
- Determining Child Custody
- North Dakota Divorce FAQs
The Basic Laws Regarding Divorce in North Dakota
North Dakota is both a no-fault and a fault-based state. You can either cite irreconcilable differences or you can state one of the following legal grounds for seeking a divorce:
- Extreme cruelty
- Willful desertion
- Willful neglect
- Abuse of alcohol or controlled substance
- Conviction of a felony
After you complete your paperwork, you must officially serve your spouse with the paperwork to start the divorce process. Simply filing with the Clerk of the District Court does not start the divorce action.
Within 30 days after paperwork is served, both spouses must meet either in person or electronically to prepare a Joint Information Statement and a Preliminary Property and Debt Listing. Pertinent information is exchanged during this time.
Within 7 days after this meeting, the following documents must be filed with the court:
- Affidavit of Custody Jurisdiction (if children are part of the contested divorce action)
- Proof of Service of Summons, Complaint and Plaintiff’s Affidavit of Custody Jurisdiction
- on Defendant
- Confidential Information Form
- Joint Informational Statement
- Preliminary Property and Debt Listing
You will also need to pay an $80 filing fee.
North Dakota is an equitable division state, meaning that property is divided equitably, but not always equally, in a divorce. Courts have the discretion to decide how property will be divided fairly. Debts are treated the same way.
Alimony (spousal support) can also be granted on a temporary, rehabilitative or permanent basis. The courts will use several factors to determine the length and the amount of alimony. Judges have broad discretion in this area.
North Dakota uses the Percentage of Income Method to calculate child support. This means a set percentage of the non-custodial parent’s income is paid monthly to the custodial parent to cover basic child support expenses.
Extraordinary medical care costs are separate and in addition to basic child support payments. The costs of childcare costs are lumped into other costs of providing for the child when support calculations are made. Child support is enforced through the state’s child support agency.
How is the Division of Property Handled?
North Dakota is an equitable division state. This means property is divided equitably and fairly. However, this does not mean it is always divided on a 50/50 basis.
Before this division can take place, it must be decided which assets are marital assets and which are separate. Generally, any property acquired during the course of the marriage is considered marital property.
Property held before the marriage by one spouse or acquired after separation are generally considered separate. This also applies to gifts and inheritances, as long as those assets are not commingled.
Once the nature of the assets has been determined, the court will consider the following when factors when deciding how to equitably divide property and debt:
- Age of each spouse
- Earning ability
- Length of the marriage
- Conduct of each spouse during the marriage
- Station in life
- Circumstances and necessities of each spouse
- Health and physical condition of each spouse
- Financial circumstances as shown by property owned at the time, its value at the time
- its income-producing capacity, if any, whether accumulated before or after the
- Other matters that may be material
These same factors are used to determine whether alimony should be paid as well.
Read More: Who Gets the House in a Divorce?
Retirement Plans and Pensions
Pensions and 401k plans that are earned during a marriage are considered marital property in North Dakota. They must be divided like all other marital assets.
Placing an exact value on pensions and retirement accounts can be complicated, depending on the type of retirement accounts that are involved. It’s common to retain a retirement funds expert such as a certified divorce financial analyst, accountant, pension valuator, actuary, or business appraiser to reach an accurate figure.
After the valuation has been determined, each retirement account is split according to terms of the settlement agreement. In some cases, spouses may negotiate to keep their own pensions by giving up interest in other marital assets.
To split a retirement account, an attorney must create a legal document known as a qualified domestic relations order, or QDRO.
The QDRO details how the retirement account will be split. It is submitted to the plan administrator and the court for approval.
QDROs can be difficult for attorneys to write, so we recommend going to a specialized firm like QDRO Counsel! Their sole focus is drafting expert-quality QDROs without taking too much of your time or money.
Read More: How to Split an IRA in a Divorce
Dividing Bank Accounts
Any bank accounts with assets that were acquired during the course of the marriage are considered marital property and must also be divided equitably.
If you have a separate bank account from before the marriage, and the assets are kept separate, you may be able to make the case that the funds in the account are your assets only.
The same applies to inheritances or gifts. If you are gifted or inherit cash and place it in a separate account, the money is a separate asset. However, if you commingle into a joint account, the other spouse can claim it as a marital asset and may be entitled to a portion of it.
What About Debts?
Debts are treated much the same way as assets in a divorce. Either the spouses must decide how they are to be divided, or the courts will decide for them.
No matter what your settlement ends up being, debts incurred by both parties are always divided equally in the eyes of creditors. This means you could be on the hook, even if your spouse agreed to pay the debt, but later fails to deliver on that promise.
Gifts and Inheritance
Gifts and inheritances that are acquired separately are not considered marital property and do not need to be divided in a divorce In North Dakota.
However, if these separate assets are commingled in any way during the course of the marriage, they can be converted to marital assets. For example, a spouse may be able to make a claim if the other spouse inherits money but deposits it into a joint bank account.
Alimony (Spousal Support)
A spouse may seek alimony in North Dakota either on a temporary basis (during the divorce) or on a rehabilitative basis. The latter is often awarded to give the supported spouse time to acquire the skills, education, training, or experience to become self-supporting.
Permanent support is rarely granted but may be awarded in long-term marriages or if there is no way a spouse can become financially independent due to age, illness, absence from the job market, or a disability.
North Dakota courts must consider several possible factors in determining the amount and duration of support. Those factors include:
- ages of the spouses
- earning abilities
- the length of the marriage
- conduct of the spouses during the marriage
- each spouse’s specific circumstances and necessities
- both spouse’s health and physical condition
- the financial circumstances of both spouses
- any other matters the court finds material
Judges are not bound by formulas in awarding alimony and have broad discretion on the amount and duration of an award.
If there are significant changes at a later date, alimony awards can be modified. The spouse requesting the modification must supply evidence that an adjustment is warranted.
How is Child Support Calculated?
North Dakota uses the parent’s incomes and the amount of overnight stays with each parent to arrive at a monthly child support amount.
A different child support formula is used for sole custody than for joint custody.
- Sole custody formula: The total income from the non-residential parent is put into the formula. Certain deductions from that total are allowed. To be considered a sole custody case, the non-residential parent must spend less than 164 days per year (less than 45% of the time), with the children.
- Joint custody formula: A different formula is used for joint custody child support calculations. Both household incomes figure into the formula, unlike the one for sole custody. Gross earnings are established based on tax records and current pay stubs.
When a family court orders joint physical custody, the non-residential parent must host the children for 164 days per year or more. If the overnight totals are fewer than 164, the sole custody formula is used.
Some deductions are allowed by North Dakota family courts to adjust income, including health insurance premiums for the children, support for other children and child care expenses, among others.
Determining Child Custody
If you and your spouse have minor children, custody will need to be determined as part of your divorce in North Dakota.
Parents can attempt to come up with a plan on their own or can get help with an attorney or a neutral mediator. Regardless, the court will have to approve the final plan. Decisions must be made regarding physical custody (where the child lives) and legal custody (who makes important decisions).
As it is in all other states, custody determinations are always made in the best interests of the child. To decide this, the state considers several factors per North Dakota Code 14-09-06.2. They include:
- The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance
- The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment
- The child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future
- The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home and community
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child
- The moral fitness of the parents, as that fitness impacts the child
- The mental and physical health of the parents, as that health impacts the child
- The home, school, and community records of the child and the potential effect of any change
- The child’s preference, if the court finds that the child is mature enough to make a reasonable decision. The court will also take into account whether the child’s preference was influenced by another person.
- Evidence of domestic violence
- The child’s interaction and relationship with anyone who resides in the parent’s household or is frequently present there, as that impacts the child
- False allegations of harm against the child made in bad faith by one parent against the other
- Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute
It is possible to modify custody agreements as conditions change for children and their parents.
The impact of substance abuse
Substance abuse can be cited as one of the grounds to file for a fault-based divorce. When this happens, it can have an impact on child custody issues.
Courts will either limit visitation rights or deny them altogether if a judge believes a child could be placed in danger in any way.
What role does domestic violence play?
Domestic violence is a form of willful cruelty and can also be cited as a ground for divorce in North Dakota.
Domestic violence can include threats, psychological abuse, or malicious property damage and can be perpetrated on any family member, not just a spouse.
In all cases, if you are a victim of domestic violence, you must take immediate steps to protect yourself and family members. Call 911, if needed, and vacate your premises immediately.
To further protect yourself, you can seek a temporary restraining order that will limit interactions between you and your spouse while you seek divorce.
Just as it is with substance abuse, when domestic violence is present in a marriage, it will play a big role in determining child custody and visitation rights. Chronic or severe domestic violence may result in the abusive parent being subjected to restrictions on his or her visitation or may lose parental rights altogether.
North Dakota Divorce FAQs
How is adultery treated North Dakota divorce laws?
Adultery can be used as a stated ground for divorce.
If adultery can be proven, a judge may take that into consideration when deciding a variety of issues such as child custody and support, alimony, and a division of assets.
What is a bifurcation of marital status, and how does it work?
Bifurcated divorces are divided into two separate legal actions. Rather that hold up all parts of a divorce, most issues are settled and the outstanding issues are resolved at a later date.
North Dakota courts are reluctant to grant bifurcated divorces because it creates judicial inefficiencies and also creates a disincentive to finalize a divorce action.
What are disclosure obligations?
By law, you must disclose all your assets, income, debts and other financial obligations to your spouse in an initial meeting. This meeting must take place within 30 days after completing service.
These disclosures are used as the basis for dividing assets, child support, and alimony.
What about health insurance during and after divorce?
Spouses cannot remain on health policies after a divorce. This means if your spouse provided coverage through their workplace, you will need to make other arrangements for coverage.
Typically, coverage may continue through COBRA or in the insurance marketplace.
In all cases, settlement agreements will provide that one or both parents continue to ensure health coverage for children. This will be written into a settlement agreement.
Are there special rules and considerations for military divorces?
If you or your spouse are in the military, to get a divorce in North Dakota, you must either live in the state or be stationed there.
Many of the same state laws that apply for civilian divorces also apply to military divorces but there are a few notable differences.
For example, child custody and visitation issues can be more complicated due to relocation or deployment orders. Child support is determined in the same way as it is for civilian cases. The catch here is that child support and alimony awards can’t exceed 60% of a servicemember’s pay and allowances.
Also, active-duty members are afforded certain protections pursuant to the Service Members’ Civil Relief Act, and the Uniformed Services Former Spouses’ Protection Act (USFSPA) of 1982.
For example, a military spouse can request a delay in divorce proceedings so that his or her military duties are not impacted. Legal action can be delayed when he or she is on active duty plus 60 days beyond the end of his or her enlistment.
The USFSPA also governs how military pensions are disbursed and whether or not a former military spouse has full medical and commissary privileges. The USFSPA governs the authorization of direct payment of a portion of military retiree’s pay to the former spouse.
For this to happen, the former spouse must have been married at least 20 years; the military spouse had at least 20 years of creditable service, and those two overlapped by at least 20 years.
What if my spouse does not respond to any divorce actions in a timely way?
When a spouse does not respond to a divorce action in a timely manner, a plaintiff has the right to request a default judgment. This means the court can grant a divorce without input from the other side.
Be aware, that when you allow a divorce by default judgment to be entered against you, you give up all control over the outcome of your divorce. You will be at the mercy of whatever the court decides which is often all requests by the plaintiff in their Motion for Default.
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