North Dakota Alimony

North Dakota Alimony

This is what you need to know if you’re facing an alimony action in North Dakota.

Who is Entitled to Alimony in North Dakota?

Alimony is also known as spousal support or spousal maintenance in North Dakota.  It is the financial support given by one spouse to the other spouse during legal separations and divorces, and possibly after divorces are finalized.

To qualify for alimony, a spouse must demonstrate a need to the court, and the other spouse must have the means to pay an award.

Types of Alimony in North Dakota

Temporary support is available after you file the divorce petition but before the judge finalizes your divorce.  It is also commonly referred to as pendente lite alimony. 

The goal of temporary support is to ensure that neither spouse is financially challenged or relying on public resources to get by while going through a divorce. Temporary support ends when the divorce is final and may be replaced by other types of alimony that are included in the final decree.

When a divorce is final, a judge may award rehabilitative support.  Rehabilitative spousal support is intended to help the supported spouse acquire an education, training, or work experience that will enable them to become self-supporting after the divorce.  Typically rehabilitative spousal support ends when the spouse graduates and gets a job to become self-sufficient.

Permanent spousal support that lasts a lifetime is rare but typically continues longer than rehabilitative support. However, the court reserves permanent awards for cases where a financially dependent spouse can’t become self-supporting due to things such as advanced age, lengthy absence from the job market, or physical or mental disability.

Spouses who want more control over the alimony process can also draft their own agreement.  The court will still need to review the alimony agreement to make sure it is fair and just, but in most cases, a judge will approve the agreement.

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What Factors Are Used to Determine Alimony?

Spousal support is gender-neutral, and the court will grant it if a spouse is financially dependent on the other. However, spousal support awards are not automatic, and if you want support, you must ask for it.

After a case for need and an ability to pay alimony is established, spousal support laws dictate that the court will evaluate the duration and amount of a potential award using the following factors:

  • The ages of the parties
  • Each party’s earning abilities
  • The length of the marriage
  • Conduct of the spouses during the marriage
  • The circumstances and necessities of each party
  • Each spouse’s physical, mental and emotional health
  • Financial circumstances according to property and assets each owns when the divorce takes place
  • Which spouse has custody and which is responsible for child support payments
  • The income-producing capacity, if any, of the property awarded to them in the divorce
  • Whether property was accumulated before or after the marriage
  • Any other relevant information

North Dakota judges have broad discretion when deciding spousal support awards. There’s no specific formula for judges to use when determining the type, how much alimony a spouse must pay or the duration of alimony, and each case is decided on its own merits.

After a judge decides the spousal support amount and duration, spouses may choose to pay support in one lump sum, which eliminates the need for ongoing payments in the future. However, most spouses choose to pay a monthly or quarterly alimony award because the amount is more manageable.

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Modifying or Terminating Spousal Support in North Dakota

Unless the couple agrees otherwise, the court can modify spousal support orders in the future.  The paying spouse or the dependent spouse has the right to request a modification based on a significant change in circumstances.  Often this is due to a change in income, a job loss, extended illness, or the onset of a permanent disability.

For example, suppose the supported spouse completed a degree program and found a high-paying job sooner than the court’s end date of rehabilitative support, this may qualify for a reduction or termination of support.

Periodic payments are modifiable, but lump-sum spousal support and property transfers are not.

There are certain situations where spousal support automatically terminates such as when either spouse dies or a recipient gets remarried.  They must notify the paying spouse immediately and spousal support is terminated as of the date of the remarriage.

Some spouses attempt to get around the remarriage issue by simply living together.  The North Dakota legislature anticipated this. If a court determines that a person receiving spousal support has been habitually cohabiting with a romantic partner for a year or more “in a relationship analogous to a marriage,” it will terminate spousal support.

Enforcing North Dakota Alimony Awards

When alimony isn’t paid according to terms set by a North Dakota court, it becomes past due and is known as alimony arrears.

Because it is a court order, it can be enforced through a variety of methods, including issuing a contempt of court citation, which can result in additional wage garnishment, fines, paying attorney fees, and in some cases, a jail sentence.  Other collection methods may include small claims court, liens on bank accounts and real property, or other similar means.

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Spousal Support and Taxes

Due to recent changes in Federal laws, the payer cannot deduct support payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.

The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the recipient spouse.

Taxpayers who pay alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:

  • The recipient must be a spouse or former spouse
  • There must be a written divorce or separation instrument
  • Alimony must be made with cash payments (such as checks and money orders)
  • Maintenance does not continue after the recipient dies
  • The parties must live apart, residing in different households
  • The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
  • The court-ordered alimony payments cannot state that payments are not deductible

North Dakota Alimony FAQs

Can alimony be waived by a prenuptial agreement?

Yes.  North Dakota courts consider a prenuptial agreement to be a valid contract and will enforce the terms of the agreement.  It supersedes any request for alimony when it is included in an agreement.

Is marital fault considered when awarding spousal support?

North Dakota considers marital fault when determining alimony payments. This means that an at-fault divorce case, which may be caused by infidelity, abandonment, abuse, or other contributing factors, could result in the at-fault party paying more punitive alimony.

Is child custodial status considered when determining alimony in North Dakota?

North Dakota judges consider custody status when determining alimony payments. This means that alimony calculations are affected by whether or not the receiving spouse has custody of the children, which may result in higher household expenses that may be covered under child support and alimony payments.

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