Know the Laws: North Dakota
UPDATED July 21, 2008
WomensLaw.org does not currently have divorce information for North Dakota. The following links may provide helpful information.
North Dakota Supreme Court
Link to divorce court forms.
Divorce Support - North Dakota
Provides a professional directory of divorce lawyers, mediators, counselors, financial planners and other divorce professionals as well as articles on child custody, visitation, child support, alimony, and property and debt division. You will also find access to other state specific resources, products and services.
North Dakota Divorce Legal Information Center
A resource on divorce and family law in the State of ND for non-lawyers and pro se litigants.
WomensLaw.org has no relationship with these organizations and does not endorse their services. We provide these links for your information only.
Below is general information about divorce.
- Basic Info
- Can I get a divorce?
- What are the steps to obtain a divorce in ND?
- What if myself or my spouse contest the divorce?
Basic Info
back to topWhat is divorce?
Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:
- First, you must meet the residency requirements of the state. See Am I eligible to file for divorce in North Dakota?
- Second, you must have "grounds" (a legally acceptable reason) to end your marriage. See What are the grounds for divorce?
- Third, you file divorce papers and have copies sent to your spouse.
- Fourth, if your spouse disagrees with anything in the divorce papers, then he will have the opportunity to file papers telling his side. This is called "contesting the divorce." If he contests it, then you will have a series of court appearances to sort the issues out. If your spouse agrees with everything, then he will most likely sign the papers and send them back to you. If your spouse agrees with everything and signs the papers, this is called an "uncontested divorce."
- Fifth, if there is property that you need divided or if you need financial support from your spouse, then you will have to work that out either in an out-of-court settlement or in a series of court hearings. Custody can be decided as part of your divorce.
You and your spouse can agree in writing to be legally separated and agree to support payments paid by one of you to the other and arrange a plan for child support. A court can enforce these written agreements, unless a judge decides that they are extremely unfair to one of the parties.*
* Contracts to alter marital relations - N.D. Cent. Code, § 14-07-07
back to topWhat are the grounds for divorce?
* (What reason or reasons must I have to be allowed to divorce?)
"Grounds" are legally acceptable reasons for a divorce. In North Dakota, there are different grounds for fault and no-fault divorces.
The only ground for a no-fault divorce is irreconcilable differences. This means that the judge will look to see if there are good reasons for not continuing the marriage. **
The grounds for a fault-based divorce are:
- Adultery-your spouse is unfaithful or cheats on you
- Extreme cruelty-one spouse inflicts serious bodily injury or mental suffering on the other. This includes domestic violence***
- Willful neglect-when your spouse refuses to provide common life necessities****
- Abuse of alcohol or controlled substances-the use must be severe enough that it affects business or causes great mental suffering for an innocent spouse*****
- Imprisonment in a state or federal prison for committing a felony. The spouse must be in prison at the time of the filing for divorce
- Desertion-any
of these things count as desertion:******
- Refusal to have intercourse for a year, if a medical condition doesn't make refusal necessary
- Refusal to live in same house as spouse for a year, as long as refusal is not because the spouse is violent or threatening violence
- You agree to separate, and then one of you wants to reconcile and the other doesn't
* Causes for divorce - N.D. Cent. Code, § 14-05-03
** Irreconcilable differences defined - N.D. Cent. Code, § 14-05-09.1
*** Extreme cruelty defined - N.D. Cent Code, § 14-05-05
**** Willful neglect defined - N.D. Cent. Code, § 14-05-07
***** Abuse of alcohol or controlled substances defined - N.D. Cent. Code § 14-05-08
****** Desertion defined - N.D. Cent. Code, § 14-05-06, Desertion, neglect, intemperance - Duration - N.D. Cent Code, § 14-05-09
back to topWhat might I get in a divorce?
As a part of a divorce, you can get what the court finds to be your share of the marital property and debts. You may get support in the form of child support if you get custody of your children. You may also get spousal support or alimony.
In North Dakota, marital fault can be considered as a factor affecting the division of property.* (Division or property is the phrase that court uses when it splits up the stuff you and your spouse have collected, like the house, the bank accounts, furniture, etc.) This means that the judge may consider things like domestic violence or certain other things you or your spouse did wrong when deciding how to divide the property. A judge can take these things into consideration during the division of property whether you file for a fault-based or no-fault divorce. The judge will divide the property in the way it thinks is the most fair or equitable.
You may wish to ask for all or some of the things listed below. A lawyer can help you figure out what you should ask for based on your particular situation.
1. Your share of the marital property
Property includes money, your home, the car, personal items, and anything else you own. To divide the property, a judge will first determine what is "separate property" and what is "marital property."
Separate property is usually anything that you brought into the marriage and kept separate during the marriage.
Also, some gifts you receive during your marriage may be considered separate property, like an inheritance. However, in certain cases, these gifts might become marital property if they're not kept separate. For example, if you inherit a house, and you and your husband live in the home as a married couple and/or make improvements to it, it may become marital property.
Anything that is your separate property is usually yours to keep. Anything that is your spouse's separate property will usually be his.
Marital property is generally anything you or your spouse earned or acquired during your marriage. This may include wages, salaries, commissions, your home, furniture, etc. You and your spouse will likely each get some of the marital property, but you will not necessarily each get half. You and your spouse may be able to come to an agreement on dividing up the marital property. If you can't agree, a judge will divide your marital property in a way that he or she thinks is fair. This is called "equitable distribution".**
A judge will look at several factors when deciding how to split up the marital property. Some of the factors a judge may consider are:***
- Both of your ages
- How long you were married
- How both of you acted during the marriage (was one of you more at fault than the other for the end of the marriage?)
- The circumstances and needs of each of you
- The health and physical condition of both of you
- Your different financial situations (like what your separate incomes are and whether you are able to support yourselves)
- What you and your spouse would be able to earn in the future
- Anything else the judge thinks is important.
2. Debts
Debts that you collected together will be split up between you. Any mortgages, loans, credit card or other debts you have jointly acquired (debt you got while you were married) will be split between you. Like marital property, debts will not necessarily get split equally between the two of you. If some of the debt belongs more to one of you than the other, like student loans or credit cards in just one spouse's name, the judge may or may not split that debt up.
If you and your spouse still have joint credit cards that either of you can use, you may want to consider closing those accounts if you are concerned your spouse will run up the balance.
Debts will be split up along with the other property. It is important to keep in mind that the judge will generally not split up debts that only one of you had before you got married.****
3. Custody
Legal custody is the right to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives.
Physical custody is the actual physical possession and control of a child (under 18 years old). In other words, it covers who the child lives with on a day-to-day basis.
If you have a minor child or children when you file for divorce, the court may provide for the custody, care, and support of that child or children in your divorce decree.
For more information regarding child custody in North Dakota, please visit our Custody Info page.
4. Alimony or spousal support
Alimony is money that one spouse must pay to help support the other spouse after a divorce. A judge will not award alimony in all cases. You are less likely to be awarded alimony if your marriage was short, you are relatively young and healthy, or if your spouse doesn't have enough money or property to help support you. A judge will usually award alimony for a set period of time to give the person receiving it a chance to become self-sufficient.
Alimony for you from your spouse will usually be called alimony, although sometimes it may be called spousal support. You may be able to get alimony as a part of your divorce.
Note that you may be able to get alimony as a part of a separation.*****
The judge will look at the following factors when deciding whether or not to award spousal support:******
- Both of your ages
- How long you were married
- How both of you acted during the marriage (was one of you more at fault than the other for the end of the marriage?)
- The circumstances and needs of each of you
- The health and physical condition of both of you
- Your different financial situations (like what your separate incomes are and whether you are able to support yourselves
- You future earning capacity
- Whether your property was gotten before or after you got married
- Anything else the judge thinks is important.
The judge may also consider whether or not you have any job skills after spending years as a homemaker while your husband had a job to support the family. If you stayed home and took care of the house and raised the children rather than working, the judge may make him pay alimony to you.******* The court may also decide to grant alimony when you have worked to put your spouse through college, graduate, professional school, or anything else that might have increased his earning potential.********
5. Child support
Child support refers to the money a parent must pay to support the children after a divorce or separation. The noncustodial parent pays money to the custodial parent. The child's need, the custodial parent's income, and the noncustodial parent's ability to pay are all factors usually taken into consideration when the court decides how much child support to award. For more information about collecting child support for your child in North Dakota, see our Custody Info page.
6. Removal of the abuser from the marital home
If your spouse has committed domestic violence against you, you may be able to have court to remove him from your home as a part of a protection order. Domestic violence includes when your spouse:
- physically harms you,
- causes you bodily injury,
- physically forces you into sexual activity,
- assaults you, or
- puts you in fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault.
During your divorce, you may as the Court for a protection order if your spouse has been abusive. However, you do not need to file for divorce to get a protection order. If you need one, you may want to consider getting the order as soon as possible rather than waiting until you file for divorce. For more information about getting a protection order in North Dakota, see our How to Get a Protection Order page.
8. Other Relief
You can also ask the court for other types of relief like:
- Changing your name back to your maiden name
- Health insurance coverage for you and your children-paid for by your ex-husband
- Naming of your children as beneficiaries on your ex-spouse's life insurance plan.
* Non-economic and economic fault may be a relevant factor in property distribution - Bader v. Bader, 448 N.W.2d 187, Davis v. Davis, 458 N.W.2d 309.
** Equitable doesn't mean equal - Haugeberg v. Haugeberg, 258 N.W.2d 657
*** Factors judge can consider in distributing marital property - as quoted in Reiser v. Reiser, 2001 ND 6, established in Ruff v. Ruff, 52 N.W.2d 107 and Fischer v. Fischer, 139 N.W.2d 845.
**** Separate and mutual rights and liabilities of husband and wife, N.D. Cent. Code, § 14-07-08
***** Separation - Spousal support - Division of property - N.D. Cent. Code, § 14-05-27
****** Factors judge can consider in distributing marital property - as quoted in Routledge v. Routledge, 377 N.W.2d 542, as established in Ruff v. Ruff, 52 N.W.2d 107 and Fischer v. Fischer, 139 N.W.2d 845.
******* Disadvantaged homemakers - Van Klootwyk v. Van Klootwyk, 563 N.W.2d 377, Wetzel v. Wetzel, 589 N.W.2d 339, Marschner v. Marschner, 621 N.W.2d 339. Hoverson, v. Hoverson, 629 N.W.2d 573.
******** When one spouse foregoes opportunities or supports the other spouse in order to help the other spouse increase his or her earning capacity, the supporting spouse is entitled to spousal support - Van Klootwyk v. Van Klootwyk, 563 N.W.2d 377
back to topWill my children's last name change after I get a divorce?
No, divorce proceedings alone will not change your children's last name. If you want to change their last name, you will have to file for their name change separately in court. The other parent has to be notified and has the right to argue against the change.
To change your child's name, you'll need to file a petition in the court of the county you live in. (To find a list of county courthouses in North Dakota, go to our Courthouse Locations page.) Your child will have to have been a resident of that county for at least six months. You will also need to include the following information in your petition:
- The name requested and
- The reason why you want to change the name
A notice of the intended aplication must be published in the official newspaper of the county in wich the minor lives and if different, in the official newspaper of the county in wich each of the minor's parents live.
* Change of name of person - Petition - N.D. Cent. Code, § 32-28-02 (3)