Divorce in North Dakota

If you believe your marriage is in trouble, there are several ways you can and should protect yourself:

1. Don't sign any papers and negotiate on your own. If your spouse requests that you sign any agreements, documents, contracts, promissory notes, deeds, mortgages, etc., refrain. The consequences of signing such papers may be irreparable and detrimental to your case. Just as important as not signing any documents, you should not verbally agree to any terms or agreements prior to talking to an experienced family law attorney.
   
   
2. Hire an Experienced Family Law Attorney. Choosing the right attorney to represent you is an important, and often difficult, decision. In making the decision, you should look for an attorney who is:
   
   
   • Professional: Your attorney should look and sound like a professional person. If you meet with a lawyer who is inappropriately dressed, is not well-spoken, who keeps a disorganized, sloppy office, or whose office is in an unusual place, these might be problem signs.
     
     
   • Competent: Divorces often involve important issues such as the custody of children and complex financial issues. You should entrust these important considerations to someone who has the knowledge and skill to handle them competently.
     
     
   • Respectful: Your attorney should treat you as an adult who needs help with a problem. He or she should recognize that you are in an emotional situation, and not ridicule or embarrass you because you are in a relationship that has not worked out.
     
     
   • Compatible: Your attorney will be helping you through an unfamiliar and often traumatic period of your life. Throughout the process, you may need to disclose intimate or even embarrassing information to your attorney. Your attorney must be someone with whom you are comfortable under these circumstances.
     
     
   • Candid: Throughout your divorce, you may have to make numerous difficult decisions. It is imperative that your attorney is open and honest with you in helping you make these decisions, rather than simply telling you what you want to hear. While the truth about a given situation may be unpleasant, it is to your benefit to be fully informed.
     
     
3. Don't move out of the marital residence. Especially in situations where there are children involved and custody is a concern, do not move out of the marital residence without talking to your attorney first. If you are in danger and have no choice but to leave, take the children with you.
   
   
4. Put your Documents in Order and Keep them Secure. Make sure your valuable documents are stored in a safe place so that you have access to them at all times. Critical financial documents include tax returns, insurance policies, real estate documents, mortgages, debt information, bank statements, investment accounts, income information and any benefit programs.
   
   
5. Close Joint Financial Accounts. If you and your spouse have any joint credit cards, charge accounts or bank accounts, consider immediately closing, canceling or freezing those accounts. Be careful and considerate, however, with respect to accounts used to auto-pay monthly bills.  You don’t want bills to go unpaid or to harm your or your spouse’s credit rating.  Be sure to keep sufficient documentation about any outstanding balances at the time the account was closed, or, if you are closing a joint bank account, keep accurate documentation of the balance at the time the account was closed as well as an accounting of any transfers, deposits or withdrawals made to or from the account.
   
   
6. Establish Your Own Credit. Before you begin any divorce proceedings, you should make sure that your name is attached to any real estate documents, vehicle titles, pension accounts or other investment accounts. In addition, after you have closed any and all joint financial accounts, you should acquire a credit card and bank account in your name alone.
   
   
7. Create an Inventory of your Assets. Take inventory of your personal property. Photograph, list, and value all property. List property you wish to receive. If you consider any property to be your "non-marital" property, (gifts, inheritance, items belonging to you prior to marriage), create a document trail on how the property was acquired.
   
   
8. Journal all Monthly Expenses and Save Receipts. Keep an accurate accounting of your monthly income and expense. Keep all receipts and deposit tickets. Be cautious of your spending and avoid frivolous shopping sprees.
   
   
9. Take Care of Yourself. Establish a support system consisting of family, friends, neighbors, etc. Take care of your health. Take care of your children. Keep working-don't quit your job.
   
   
10. Play Nice. Don't be mean just to be mean; don't be petty just to be petty. Take the higher ground. Avoid spousal bashing, especially in front of your children. In the end, your divorce will be more bearable and it will be easier for you to move forward.

In order to get the most out of the initial consultation with your attorney and save both time and expense, make sure you have copies of the following documents:

1. Tax returns for the past five years;
2. Income information for you and your spouse, including paystubs, 1099's and W-2's for the past year;
3. Real estate records, including deeds, titles, mortgages, tax assessments and legal descriptions for all real property;
4. Business records pertaining to ownership, assets, liabilities, income and expenses;
5. Personal and business bank statements for the past year;
6. Loan applications/agreements, promissory notes, debt statements;
7. Updated investment information (pensions, IRA, stocks, bonds, retirement accounts, etc.);
8. Insurance records including policies, applications, and invoices;
9. Financial statements or statements regarding your net worth
10. Automobile records including make, model, VIN number, value, purchase agreements, promissory notes; and
11. Complete list of all personal property.

In addition to gathering the above documentation, we encourage our clients to fill out and return our divorce intake sheet.

A divorce in North Dakota may not be granted unless the plaintiff (person filing for the divorce) has been a resident of North Dakota for six months. Oddly, a North Dakota divorce can be started on a person’s first day of residency.  It just can’t be finalized until he or she has lived in the state for six months.

As long as the plaintiff satisfies the six-month residency requirement, the court has the authority to grant the divorce even if the defendant (non-filing spouse) lives in another state or doesn’t cooperate.

In North Dakota, a divorce may be granted for any of the following reasons:

1. adultery,
2. extreme cruelty,
3. willful desertion,
4. willful neglect,
5. abuse of alcohol or controlled substances,
6. conviction of felony,
7. irreconcilable differences.

The first six of these reasons represent the old-fashioned “fault” grounds for divorce.  Although, today, parties don’t usually base their divorce on those old-time reasons, they could.  North Dakota chose to add the no-fault reason of “irreconcilable differences” to its statute instead of replacing the old fault grounds.

“Irreconcilable differences” means little more than “I’m not happy in this marriage, and I want out.”  Before this was an acceptable legal reason to divorce, parties could be trapped in unhappy marriages.

Even though North Dakota is a “no fault” divorce state—meaning that a divorce may be granted upon a finding of “irreconcilable differences,” North Dakota courts may take marital misconduct into account when dividing asset and debts or considering a spousal support award.

There are two main differences between a legal separation and a divorce. The first is that a divorce ends a marriage and a legal separation does not. The second is that assets and debts are completely and finally allocated in a divorce, but not in a separation.

Otherwise, the two actions bear striking similarities and address the same list of issues. Both actions determine custody, visitation and support of children. Both actions allocate possession and control of assets, with divorces proceeding further, to allocate full ownership rights. Both actions allocate liability for debts, with the allocation again being more complete in a divorce action. Both actions address the need for spousal support. Both address tax and insurance issues and more.

Most people in failed marriages prefer the clean and total break a divorce provides. People who retain a realistic hope for reconciliation or who oppose divorce on moral or spiritual grounds may prefer a legal separation.

North Dakota’s statute on dividing property in a divorce case isn’t very helpful.  All it says is that "the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper..." N.D.C.C. Section 14-05-24.

The North Dakota Supreme Court has stated that an equitable distribution is that which is "just and proper." In other words, the court can award property in any way it sees fit so long as the distribution is fair to all concerned.  It has also instructed trial courts to consider these “factors”:

• The respective ages of the parties to the marriage;
• Their earning abilities;
• The duration of the marriage;
• The conduct of the parties during marriage;
• Their station in life;
• The circumstances and necessities of each;
• Their health and physical conditions;
• Their financial circumstances as shown by the property owned at the time;
• Its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and
• Such other matters as may be material.

In long term marriages, the courts generally look to a 50/50 division of assets and debts. However, the North Dakota Supreme Court has often said that a property division need not be equal to be equitable. If the court finds that a 50/50 split is not equitable, any substantial disparities from the court must be explained. Our Supreme Court regularly affirms disparate distributions of marital estates, and has carved out a number of commonly recognized reasons supporting such distributions, including:

1. Family assets: assets received by gift or inheritance from the family of one of the parties.
2. Premarital assets: assets owned by a party prior to marriage;
3. Waste: a party has frittered marital assets away;
4. Need: one party's needs outstrip the other’s.

There are two kinds of spousal support, permanent and temporary.  Permanent support is most usually reserved for long-term marriages, and older spouses who have little, if any, earning capacity.  They often involve marriages where one spouse is a high earner and the other is not.  Temporary support is also known as “rehabilitative” support.  It is intended to help a party bridge the gap between being in an economic partnership and being single and self-sustaining.

When deciding whether to award spousal support, North Dakota Court’s consider many circumstances, including:

• The respective ages of the parties to the marriage;
• Their earning abilities;
• The duration of the marriage;
• The conduct of the parties during marriage;
• Their station in life;
• The circumstances and necessities of each;
• Their health and physical conditions;
• Their financial circumstances as shown by the property owned at the time;
• Its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and
• Such other matters as may be material.

The distribution of the parties’ marital debts and assets connects with the spousal support issue.  People who receive handsome estates in their divorce are less likely to receive spousal support

In divorces finalized after January 1, 2019, the person paying spousal support may no longer deduct the payments from their income tax. Likewise, spousal support recipients no longer pay taxes on those payments. In other words, spousal support payments are now paid with after-tax dollars.