Divorce Law North Dakota

DIVORCE LAW OF NORTH DAKOTA

The law relating to divorce in the State of North Dakota is governed by the North Dakota Century Code by Title 14-05 'Divorce'. Divorce is the dissolution of marriage, and the law of this State states it may be dissolved only either by the death of one of the parties; or by a judgment of a court of competent jurisdiction decreeing a divorce of the parties.

GROUNDS FOR DIVORCE

The grounds that are recognized by the North Dakota Century Code either a No-fault ground or the general ground.

No-fault

No- fault grounds is the ground of irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.

General

  1. adultery;
  2. confinement for incurable insanity for a period of 5 years;
  3. conviction of a felony;
  4. willful desertion;
  5. cruel and inhuman treatment;
  6. willful neglect; and
  7. habitual intemperance (drunkenness).

ANNULMENT OF MARRIAGE

Grounds for annulling marriage

A marriage may be annulled by an action in the district court to obtain a decree of nullity for any of the following causes existing at the time of the marriage:

  1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent or that such party was of such age as to require the consent of the party's parents or guardian and such marriage was contracted without such consent, unless, after attaining legal age, such party freely cohabited with the other as husband or wife.
  2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force.
  3. That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife.
  4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.
  5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife.
  6. That either party was at the time of the marriage physically incapable of entering into the marriage state, and such incapacity continues and appears to be incurable.
  7. That the marriage was incestuous.

Legitimacy of children

When a marriage is annulled, children begotten before the judgment are legitimate and succeed to the estate of both parents.

LEGAL SEPARATION

The grounds for legal separation (separation from bed and board) in North Dakota are:

  1. irreconcilable differences;
  2. adultery;
  3. confinement for incurable insanity for a period of 5 years;
  4. conviction of a felony;
  5. willful desertion;
  6. cruel and inhuman treatment;
  7. willful neglect; and
  8. habitual intemperance (drunkenness).

The spouse filing for legal separation must be a resident of North Dakota for at least 6 months prior to the entry of the legal separation or commencement of the action.

DIVORCE PROCEDURE

Filing complaint for divorce

A complaint for divorce may be filed by either husband or wife or by both of them jointly in the District Court of the county of their ordinary place of residence.

Residency Requirements

The spouse filing for divorce must be a resident of North Dakota for at least 6 months prior to the filing of the divorce or the entry of the final divorce. If the defendant is a resident of North Dakota, the divorce must be filed in the county where the defendant resides. If the defendant is not a resident, the divorce may be filed for in any county that the plaintiff designates in the complaint.

Limitation of time

There are no limitations of time for commencing actions for divorce. But however, a divorce may be denied when there is an unreasonable lapse of time before the commencement of the action. Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation. The presumption arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action.

MEDIATION OR COUNSELING

In an action for divorce or legal separation where child support or child custody is an issue, the court may order the parents to submit to mediation, unless there has been physical or sexual abuse of a spouse or child.

PROPERTY DISTRIBUTION

North Dakota is an "equitable distribution" state. All of the spouse's property, including gifts, inheritances, and any acquired prior to the marriage, will be equitably distributed as the court feels is just and proper.

SPOUSAL SUPPORT

Either spouse may be required to make allowances for the support of the other spouse for his or her entire life or a shorter period. All of the circumstances of the situation may be considered. There are no other specific factors for consideration set out in the statute. Support payments may be required to be made through the clerk of the court.

CHILD CUSTODY

Child custody is awarded according to the best interests and welfare of the child, and based on the following factors:

  1. moral fitness of the parents;
  2. capability and desire of each parent to meet the child's needs;
  3. preference of the child, if the child is of sufficient age and capacity;
  4. the love and affection existing between the child and each parent;
  5. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  6. the child's adjustment to his or her home, school, and community;
  7. the mental and physical health of the parents;
  8. the stability of the home environment likely to be offered by each parent;
  9. the child's interaction with anyone who resides with a parent, including such person's history of violence of any type;
  10. any spouse or child abuse or sexual abuse or history of domestic violence or violence of any type;
  11. the capacity and disposition of the parents to give the child love, affection, guidance, and continue the child's education;
  12. the permanence, as a family unit, of the proposed r existing custodial home;
  13. the making of any false accusations by one parent against the other; and
  14. any other factors.

Any evidence of child or spouse abuse or domestic violence creates a presumption that custody or visitation with that parent would not be in the best interests of the child. If there is any evidence of sexual abuse of a child, the court is required to prohibit any visitation or contact with that parent unless the parent has completed counseling and the court determines that supervised visitation is in the best interests of the child. Both parents are considered to be equally entitled to custody of a child.

CHILD SUPPORT

Either parent may be ordered to pay child support. The amount awarded will be based on consideration of the amount that is needed to give the child support and an education suitable to the child's circumstances. There are specific child support guidelines that the court will consider which have been prepared by the North Dakota Department of Human Services. All child support orders will be reviewed every 3 years, unless neither parent requests such a review.

PREMARITAL AGREEMENT

The agreement must be in writing and signed by both parties and enforceable without consideration. The agreement is enforceable if proven that

  1. the agreement was not executed voluntarily;
  2. the agreement was unconscionable when executed and before execution of the agreement, the party was not provided fair and reasonable disclosure of the other party's financial or property obligations, did not voluntarily waive disclosure of these obligations and did not have notice of them;
  3. if the agreement modifies or eliminates spousal support and that causes the other party to be eligible for public assistance. If a court finds that to enforce the agreement would be unconscionable, it may refuse to enforce it. If the marriage is determined to be void, the agreement is enforceable only to the extent necessary to avoid an inequitable result.