Legal Information: North Dakota

North Dakota Divorce

Divorce

Basic info and definitions

What are the grounds for divorce?

“Grounds” are legally acceptable reasons for a divorce.1 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.2

The grounds for a fault-based divorce are:

  • adultery - your spouse is unfaithful or cheats on you;
  • extreme cruelty - one spouse causes serious bodily injury or mental suffering on the other;3
  • willful neglect - when your spouse refuses to provide common life necessities;4
  • 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;5
  • 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 one’s spouse for a year, as long as the refusal is not because the spouse is violent or threatening violence; or
    • you agree to separate, and then one of you wants to reconcile and the other doesn’t.6

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

What 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.

What 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 s/he will come to court for your hearing. In cases of uncontested divorce, you may represent yourself but a lawyer might still be helpful to make sure all of your rights are protected, especially if your spouse has one. To get an uncontested divorce, you may 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, the North Dakota Supreme Court Legal Self-Help Center website may have some of the forms you need.

What might I get in a divorce?

As a part of a divorce, you can get what the judge determines to be your fair (equitable) share of the marital property and debts.1  You may also be eligible for child support and/or spousal support. 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
  • 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.

1 N.D.C.C. § 14-05-24(1)

The divorce process

Am 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 six months before a judge issues the divorce decree.1 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.2

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

Can I get spousal support? What factors will a judge consider?

The judge can grant you spousal support, also called alimony, for a limited amount of time if the judge believes both of the following are true:

  1. you don’t have enough property or income to be able to provide for your reasonable needs, considering the standard of living that you had during your marriage; and
  2. your spouse can pay spousal support without it causing an “undue economic hardship.”1

To decide how much spousal support to award you and for how many years it will last, the judge must consider the following factors:

  • the age of the spouses;
  • the earning ability of each spouse;
  • the length of the marriage;
  • how each spouse behaved during the marriage;
  • each spouse’s “station in life,” which generally means one’s status in terms of wealth, social rank, occupation, etc;
  • the circumstances and needs of each spouse;
  • the health and physical condition of each spouse; and
  • the spouses’ financial circumstances as shown by the property you own at the time of the divorce. The judge will look at the value of the property at the time of the divorce, the income-producing capacity of the property, and whether the property was purchased before or after your marriage.2

1 N.D.C.C. § 14-05-24.1(2)
2 N.D.C.C. § 14-05-24.1(3)

If the judge orders spousal support, how long can I expect it to last?

Generally, the judge will follow these guidelines when deciding how long your spousal support will last based on how long you were married: 

  • If the length of the marriage is less than five years, spousal support will last for up to 50% of the length of the marriage.
  • If the length of the marriage is between five and ten years, spousal support will last for up to 60% of the length of the marriage.
  • If the length of the marriage is between ten and fifteen years, spousal support will last for up to 70% of the length of the marriage.
  • If the length of the marriage is between fifteen and twenty years, spousal support will last for up to 80% of the length of the marriage.
  • If the length of the marriage is twenty years or more, spousal support will last for some time that the spouses agree upon or the judge decides.1

If the judge believes it is necessary to go outside of these guidelines, the judge must specifically explain in writing the reasons why.1 

Note: When determining the “length of the marriage,” the judge will consider the end of your marriage to be the day that either spouse served a summons for legal separation or divorce.2

However, your spousal support will end earlier than the guidelines mentioned above if any of these things happen:

  1. you die;
  2. you remarry. In this situation, it is your responsibility to immediately notify your former spouse when you remarry by sending a notice to his/her last known address;3
  3. you have been living with an intimate partner in a relationship that is similar to marriage for one year or more, the judge can terminate your spousal support after holding a hearing where the paying spouse proves this;
  4. your spouse paying the support is old enough to meet the ”full retirement age” for Social Security purposes. However, the judge can order that payments continue based on the following factors:
    • how old you and your spouse were when you got married, when the judge ordered spousal support, and when your spouse applied for retirement;
    • how much you financially relied upon your spouse during the marriage;
    • whether during the divorce case, you gave up any claims, rights, or property in exchange for a more substantial or longer spousal support award;
    • how long the spousal support has been paid or the amount already paid;
    • the health of both spouses at the time of the retirement application;
    • the assets of both spouses at the time of the retirement application;
    • all sources of income, both earned and unearned, for both spouses, including whether the paying spouse intends to continue working;
    • your ability to have saved enough for retirement; and
    • any other factors the judge thinks are relevant.5

1 N.D.C.C. § 14-05-24.1(5)
2 N.D.C.C. § 14-05-24.1(1)
3 N.D.C.C. § 14-05-24.1(9)
4 N.D.C.C. § 14-05-24.1(10)
5 N.D.C.C. § 14-05-24.1(11)

Can I get a divorce if my spouse and I still live together?

Whether you can file while still living with your spouse may depend on whether you plan to file for divorce under a fault-based ground or a no-fault ground. In North Dakota, you can sometimes lose your fault-based grounds for divorce through what is called condonation.1 Condonation is when your spouse does something that is a fault-based ground for divorce, such as abusing you, committing adultery, abusing alcohol or drugs very frequently, etc., and you accept him/her back on the condition that s/he acts better.2  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.3  However, judges often don’t consider continuing to live with an abusive spouse as condonation unless you expressly agree to forgive him/her and try again.2

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 Advocates and Shelters page.

1 N.D.C.C. § 14-05-10
2 N.D.C.C. § 14-05-13
3 N.D.C.C. § 14-05-14

Will my children's last name change after I get a divorce?

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 in which you live. 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.1

A notice of the intended application must be published in the official newspaper of the county in which 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.2

1 N.D.C.C § 32-28-02(1)
2 N.D.C.C § 32-28-02(3), (4)

What costs can I expect in a divorce?

In most situations, an uncontested divorce will be much cheaper than a contested divorce because the divorce is usually quicker and so there are less attorney’s fees to pay. However, in either situation, you will likely still 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. If you cannot afford to pay the costs, you can try filing a “Petition for Order Waiving Fees and Financial Affidavit,”1 which 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 petition from the clerk of court or from our ND Download Court Forms page.

If you hire a lawyer, you have to pay the attorney’s fees. Generally, attorneys will ask for what is called a retainer, which 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 is deducted from the retainer. For example, if you pay $5,000 as a retainer, and your lawyer charges $250 per hour, the first 20 hours are covered by the retainer; then you’d be billed additionally for any time spent on your case beyond the 20 hours. 

We especially recommend that you get a lawyer if your spouse has one. If you cannot afford an attorney, one of the free or low-cost legal resources on our ND Places that Help page may be able to help. Please note, however, that some legal services providers are unable to take contested divorce cases.

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. You can find forms and additional information from the North Dakota Supreme Court Legal Self-Help Center website.

1 N.D.C.C. § 27-01-07

Do 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.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

Where can I find additional information about divorce on WomensLaw.org?

You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.

Steps to obtain a divorce in North Dakota

Step 1. File your petition

A divorce is started by filing legal papers in court. If you have a lawyer, s/he will handle this for you. 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.

The clerk of court in the county where you are filing may have the forms that you will need. If you do not have any children and your divorce is going to be uncontested, you can use the forms provided by the North Dakota Supreme Court to file for divorce, which you can access on our ND Download Court Forms page. 

Step 2. Service of process

After you file your petition, your spouse will have to be served with a copy of the court papers, including the summons and complaint. 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. If you do not know where your spouse is, there may be other alternatives for how to serve him/her. If you are having trouble serving your spouse, it is highly recommended that you get a lawyer, who can ask the judge for permission for alternate service. To find one in your area, visit our ND Finding a Lawyer page.

Often the sheriff’s department can serve your spouse or you may have to contact a constable or a private process server. Do not attempt to serve the papers yourself.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

Step 3. Your spouse files an answer

After your spouse has been served with the summons and complaint, s/he must file an answer within 21 days or else you can file a motion for a default judgment.1 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 6. If s/he does disagree with something, then your divorce is a contested divorce and continue to Step 4.

1 See North Dakota Courts website Informational Guide

Step 4. Discovery and settlement attempts

If your spouse doesn’t immediately consent to the divorce, both sides will share information (“discovery”) and usually try to reach a settlement to avoid a trial. 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 6. If you don’t settle here, read Step 5. You can find more information on discovery in our Preparing for Court - By Yourself section.

Step 5. Trial

After the parties finish with exchanging information (“discovery”), the case will go to trial unless a settlement is reached. If you go to trial, 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 extremely difficult without the help of an attorney. See our ND Finding a Lawyer page for legal referrals.

Step 6. Judge issues divorce decree

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

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