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Know the Laws: North Dakota

UPDATED May 21, 2012

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 Information about divorce in North Dakota.

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 s/he will have the opportunity to file papers telling his/her 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.*

 * N.D.C.C. § 14-07-07

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back to topWhat are the grounds for 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.*1

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*2
  • Willful neglect - when your spouse refuses to provide common life necessities*3
  • 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*4
  • 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*5

* N.D.C.C. § 14-05-03
*1 N.D.C.C. § 14-05-09.1
*2 N.D.C.C. § 14-05-05
*3 N.D.C.C. § 14-05-07
*4 N.D.C.C. § 14-05-08
*5 N.D.C.C. § 14-05-06; N.D.C.C. § 14-05-09

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back to topWhat might I get in a divorce?

As a part of a divorce, you can get what the judge determines to be your equitable (fair) share of the marital property and debts.*  You may also be eligible for child support and/or spousal support.  To read more about under what circumstances a spousal support order can be terminated, you can go to our ND Statutes page. Custody can also be decided as part of the divorce.  You can read more about custody in North Dakota on our Custody page.

You may also be able to ask the judge for other types of relief like:

  • Changing your name back to your maiden name;
  • Health insurance coverage for you and your children that is paid for by the other spouse; and/or
  • Naming of your children as beneficiaries on your ex-spouse's life insurance plan.

To find out more information, we suggest talking to a lawyer.  Go to our ND Finding a Lawyer page for legal referrals.

* N.D.C.C. § 14-05-24(1)

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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 which each of the minor's parents live.  The judge can waive this requirement if you provide evidence that you are the victim of domestic violence.

* N.D.C.C § 32-28-02(3)

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Who can get a divorce

back to topAm I eligible to file for divorce in North Dakota?

To be eligible for divorce in North Dakota, you must have been a resident of North Dakota at least 6 months before a judge issues the divorce decree.*  Your spouse does not have to live in North Dakota.  As long as you will have been a resident for at least six months before your divorce goes through, you can file for a divorce in North Dakota.**

* N.D.C.C. § 14-05-17
** Smith v. Smith, 459 N.W.2d 785.

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back to topCan I get a divorce if my husband and I still live together?

Maybe.  This depends heavily on your particular situation.

In North Dakota, you can sometimes lose your grounds for divorce through what is called condonation.*  Condonation is when your spouse does something that you can get a divorce for (abuses you, commits adultery, abuses alcohol or drugs very frequently, etc.) and you basically accept him/her back on the condition that s/he acts better.**   When you accept him/her back or live with him/her again as spouses, you may have lost that ground for divorce and may not be able to get it back unless s/ he commits that act again or does other things that show the judge that s/he really did not act right after you forgave him/her.***   However, judges often don't consider continuing to live with an abusive spouse as condonation unless you expressly agree to forgive him and try again.**

Because you could lose your grounds for divorce, we strongly encourage you to seek the advice of an attorney if you plan to remain in the same home as your spouse.  Also, living with your spouse while divorcing him/her can be very emotionally difficult for you and for your children.  But more importantly, it can be very dangerous if your spouse has been abusive.  To make a safety plan, you may want to talk to an advocate, which you can find on our ND State and Local Programs page.

* N.D.C.C. § 14-05-10
** N.D.C.C. § 14-05-13
*** N.D.C.C. § 14-05-14

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back to topWhat is an uncontested divorce?

An uncontested divorce is one where you do not expect your spouse to disagree with any aspect of the divorce or you do not think he will come to court for your hearing.  In cases of uncontested divorce, you may represent yourself.  But a lawyer might still be helpful, especially if your spouse has one.  To get an uncontested divorce, you only have to file documents with the court.  You and your spouse probably won't have to make an appearance in court.

If you do not have any children and your divorce is going to be uncontested, our Download Court Forms page may have some of the forms you need.

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back to topHow much does an uncontested divorce cost?

In most situations, an uncontested divorce will be much cheaper than a contested divorce.

Each case will have to pay court costs (like filing fees and serving the papers on your spouse).*   Check with the clerk of court in your county to find out current fees. (ND Courthouse Locations)

If you cannot afford to pay the costs, you can try filing Petition for Order Waiving Fees and Financial Affidavit.**  A Petition for Order Waiving Fees and Financial Affidavit is an application that you can file to ask the judge not to make you pay the court costs.  A judge may or may not agree to waive the court costs.  It is completely up to the judge.  You may be able to get this petition from the clerk of court or from our Download Court Forms page.

If you hire a lawyer, you have to pay the attorney's fees.  If you cannot afford a lawyer, take a look at our ND Finding a Lawyer page.  We have listings of legal resources for free or low-cost legal services throughout the state that can sometimes provide assistance.

If you decide to represent yourself, it may be a good idea to have a lawyer at least look at your paperwork to make sure it is accurate and fair.  We especially recommend that you get a lawyer if your spouse has one.

 * http://www.ndcourts.com/court/forms/divorce/divorceinstructions.pdf
** N.D.C.C. § 27-01-07

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back to topWhat is a contested divorce?

A contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support.  A contested divorce is more complicated than an uncontested divorce.  It is best to have an attorney assist you with a contested divorce - especially if your spouse has one.  Go to our ND Finding a Lawyer page for legal resources in your area.

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back to topHow much does a contested divorce cost?

In most situations, a contested divorce will be more expensive than an uncontested divorce.

In a contested divorce, you will have to pay the court filing fee and maybe other court costs.  If you cannot afford the filing fees, you can file Petition for Order Waiving Fees and Financial Affidavit, also called a pauper's affidavit.*  A pauper's affidavit is an application that you can file to ask the judge not to make you pay the court costs.  A judge may or may not agree to waive the court costs.  You may be able to get this form from the clerk of court or our Download Court Forms page.

The most expensive part of a contested divorce is usually hiring an attorney.  Attorney fees can range from a few hundred to several thousand dollars.  Often the attorney will ask for what is called a retainer.  A retainer is a lot like a down-payment or a deposit - it's money you pay your attorney up front to secure his/her services.  Then you may have to pay your attorney an hourly rate, which your retainer is usually credited against.  (This means if you pay $500 as a retainer, and your lawyer charges $100 per hour, the first 5 hours are covered by the retainer - 5 hours at $100 an hour = your $500 retainer.)  Many attorneys do not charge for the first appointment, which you can use as an opportunity to decide if that particular attorney is right for you.

If you cannot afford an attorney, one of the free or low-cost legal resources on our ND Where to Find Help page may be able to help. Please note, however, that some legal services providers are unable to take contested divorce cases.

* N.D.C.C. § 27-01-07

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back to topDo I need a lawyer?

A lawyer is not necessary to get a divorce in North Dakota, but it is almost always better to have one if you can.

If you are asking for custody, child support, financial support for yourself, or a share of the marital property, you may want to hire a lawyer because there may be things you ought to get in a divorce that you may not have thought you could ask for.  A lawyer can also help you protect money or property that is yours, such as property you had before the marriage or property you inherited during the marriage.

It is important that you find out if your spouse has a pension, retirement account, insurance, or other significant property before you decide whether to file your own divorce.  If you do not ask for these things in the divorce, you may wind up giving them up forever.

The judge will not give you a lawyer in divorce cases.  If you need a lawyer, you will have to hire one or qualify for legal help at a legal services or legal aid organization.  Please see our ND Finding a Lawyer page for a list of legal resources.

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Steps to obtain a divorce in North Dakota

back to topStep 1. Grounds

The process (steps) for each divorce is going to be very different for each marriage.  Some will be longer with more steps and others will be shorter.  Uncontested divorces are usually much shorter than contested divorces.

Each divorce case will be different.  However, the following steps are pretty general and are part of many divorce processes.  You will likely encounter many of these steps, if not all of them.

You must have grounds to get a divorce in North Dakota.  See What are the grounds for divorce?

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back to topStep 2. File your petition

If you have a lawyer, s/he will handle this for you.  Your lawyer will fill out all the appropriate forms and file them in the appropriate court.  If you cannot afford an attorney, you may be able to get low cost representation from organizations that provide free or low-cost legal representation.  To locate one of these organizations near you, visit our ND Finding a Lawyer page.

If you do not have an attorney, you may be able to use forms, fill them out, and file them yourself.  The clerk of court (courthouse official in charge of records) in the county where you are filing may have some of the forms that you will need.  To find the clerk's office in your county, go to our Courthouse Locations page.

If you do not have any children and your divorce is going to be uncontested, you can use a form provided by the North Dakota Supreme Court to file for divorce.  (Download Court Forms).  Your spouse will also need to sign some of these forms.

There are also do-it-yourself packages from office supply stores and online document delivery services. You can also find links to companies offering do-it-yourself kits on our National Resources page.  Please note that WomensLaw.org has not reviewed any of these forms, and we do not know whether or not they will be helpful or even forms that your court will accept.

Once you're ready to turn your forms into the court, give them to the clerk of court in the county where you are filing for divorce.  To find the clerk's office in your county, go to our Courthouse Locations page.

It is usually helpful to have an attorney to help you with everything you can.  If you cannot afford to pay an attorney to handle your entire divorce or get help from a free or low-cost legal resource, you may want to consider paying an attorney to look over your forms and give you advice on how to revise and file them.

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back to topStep 3. Service of Process

After you file your petition, your spouse will have to be served with a copy of your petition.  Being served means giving the papers to your spouse to let him know that you have filed for divorce and that s/he needs to come to court if s/he wants to contest it or be involved in it. The whole point is that you give your spouse "notice" of the divorce, which just means thats/ he knows that you have filed for divorce from him/her.  If you do not know where your spouse is, there are other alternatives.  If you are having trouble serving your spouse, it is highly recommended that you get a lawyer.  To find one in your area, visit our ND Finding a Lawyer page.

You do not have to serve the papers on your spouse yourself.  You can contact the local sheriff's office to find out exactly how to get someone to serve your spouse.  Often the sheriff's department can serve your spouse themselves.  You may also be able to get a constable or a private process server to serve your spouse.  Do not attempt to serve the papers yourself if your spouse has ever been abusive to you.

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back to topStep 4. Your Spouse Answers

After your spouse has been served, s/he is given 20 days to answer.*

If s/he does not answer, a judge will usually give you what you asked for in your petition.  This is called a default judgment.

If s/he answers and agrees with everything, then also you get what you asked for.  This is an uncontested divorce.  If one of these two things happens, you usually skip to Step 7.

If s/he does disagree with something, then your divorce is a contested divorce.  If s/he doesn't agree, then you have go to the next step.

* www.ndcourts.com/court/forms/divorce/divorceform1.pdf

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back to topStep 5. Discovery and Settlement Attempts

This is basically where both sides share information and try to reach some sort of agreement without actually having to go to court to have a judge decide.  If you and your spouse reach an agreement here, you can submit that agreement to the judge.  The judge may call an informal hearing to make sure both of you understand the agreement.  If the judge approves of the agreement, s/he can issue a divorce decree. If you settle with your spouse here, then you can skip to Step 7.  If you don't settle here, go to the next step.

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back to topStep 6. Trial

You only do this step if you and your spouse cannot agree on a final settlement.  If you go to trial, then both sides will present evidence and argue for what they want.  The judge will then decide what s/he thinks is fair and then issue a divorce decree containing his/her orders. Trials can be difficult without the help of an attorney.

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back to topStep 7. Judge Issues Divorce Decree

After you and your spouse either reach an agreement or the judge hears both sides at trial, the judge will issues a divorce decree.  This is a document that says that you and your spouse are now legally divorced and orders a division of property.

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Contesting the divorce

back to topHow do I contest a divorce I do not want?

If you are served with divorce papers do not want to get a divorce, you can contest the divorce.  It is best to get a lawyer if you can afford it. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our ND Finding a Lawyer Page.

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back to topWhat if my spouse contests the divorce?

Just because your spouse contests your divorce does not mean you definitely won't be able to get one.  If your spouse wants to contest the divorce, s/he will do so when s/he is served the divorce papers.  If your spouse has a lawyer, it is usually best to get one yourself.

Contesting a divorce doesn't necessarily mean that s/he doesn't want to divorce.  It can also mean that s/he is willing to divorce, but s/he doesn't agree with you on how to split up the marital property or custody of the children.

When you have a contested divorce, it usually takes longer and costs more money than an uncontested divorce.  However, even though your spouse contests the divorce in the beginning, that does not mean you cannot reach an agreement without going to court.  If your spouse contests the divorce at first and then you reach an agreement, you can submit your agreement to the court and the judge will decide whether the agreement is fair and issue a divorce decree.

If you cannot come to an agreement, the case will go to trial.  A trial can be expensive.  In a trial, the judge will decide if the grounds for divorce and the things each spouse asked for are appropriate.  The judge will make a final decision and issue a divorce decree.

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WomensLaw.org would like to thank the North Dakota Council on Abused Women's Services/Coalition Against Sexual Assault in North Dakota and Legal Services of North Dakota for their assistance in compiling this material.

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