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 6 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 a divorce if my spouse and I still live together?
Maybe. This depends heavily on your particular situation and if 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 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.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
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.
How much does an uncontested divorce cost?
In most situations, an uncontested divorce will be much cheaper than a contested divorce but 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 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. 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. 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. 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
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.
How 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.1 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 Places that Help page may be able to help. Please note, however, that some legal services providers are unable to take contested divorce cases.
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.