How to File a Divorce in North Dakota

How to File a Divorce in North Dakota

by Edward A. Haman, Esq., August 2015

Whether you live in North Dakota or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody and support.

Residency and Where to File

In order to obtain divorce in North Dakota, you (filing the case as the plaintiff) must be a resident of North Dakota for at least 6 months before the entry of the Decree of Divorce. If your spouse is also a North Dakota resident, you will file in the District Court in the county where your spouse resides. If your spouse is not a North Dakota resident, you may file in any county.

Procedures

The simplest procedure is an uncontested divorce. This is where you and your spouse can reach an agreement about the division of your property, and, if you have any children, what arrangements will be made for them. You begin the divorce procedure by preparing a document called a Complaint for Divorce, along with various other supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.   

Grounds for Divorce

Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. North Dakota, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds. To get a no-fault divorce in North Dakota, you need to state in the Complaint for Divorce that “the parties have irreconcilable differences.”

The fault-based grounds for divorce are: adultery, extreme cruelty, willful desertion, willful neglect, abuse of alcohol or a controlled substance, conviction of a felony, and confinement for insanity for 5 years. However, in most cases, there is no reason to use either of these, since they add complexity to the process by requiring proof.

Property Division

A divorce involves dividing property and debts between you and your spouse. North Dakota divorce law provides that all property is marital property, regardless of how or when it was acquired. There only statutory guidelines are that the judge is to divide the property “equitably,” taking into consideration how and when the property was acquired.

Alimony in North Dakota

Alimony is called spousal support in North Dakota. All the North Dakota divorce law says on the matter of spousal support is that “taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time.”

Child Custody in North Dakota

If you and your spouse have any minor children, there will have to be a custody determination. Traditionally, one parent was awarded custody, and the other was given visitation rights. The children lived most of the time with the custodial parent, who made the day-to-day decisions regarding the children. The non-custodial parent was allotted certain times to have visitation with the children. This often led to the custodial parent having significantly more involvement in the child’s life. The modern trend is to try to keep both parents actively involved with their children, which, in North Dakota, has led to new terminology, such as decision making responsibility, residential responsibility, and parenting time. It all still comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made.

If you and your spouse can reach an agreement on custody, it will be accepted by the judge unless it is determined not to be in the child’s best interest. If you cannot reach a custody agreement, the judge will decide the issue, after considering the following factors:

  • the love, affection, and other emotional ties between the parties and the child, and the ability of each party to provide the child with nurture, love, affection, and guidance,
  • each party’s ability to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment,
  • the child's developmental needs and the ability of each party to meet those needs,
  • the sufficiency and stability of each party’s home environment, the impact of extended family, the length of time the child has lived in each party’s home, and the desirability of maintaining continuity in the child’s home and community,
  • each party’s willingness and ability to facilitate and encourage a close and continuing relationship between the other party and the child,
  • the moral fitness of the parents, as that fitness impacts the child,
  • each party’s mental and physical health, as that health impacts the child,
  • the child’s home, school, and community record, and the potential effect of a change,
  • the preference of the child, if of sufficient maturity to make a sound judgment, but considering whether the preference is based on undesirable or improper influences,
  • any evidence of domestic violence,
  • the relationship of the child with any significant person,
  • any false allegations of harm to a child, not in good faith, made by one party against the other, and
  • any other relevant factors.

Child Support in North Dakota

A decision must also be made about how the children will be financially supported. This almost always comes down to one parent paying money to the other. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the North Dakota Child Support Guidelines.

Name Change

The wife’s maiden or former name may be restored.

If you and your spouse agree on the major issues, an uncontested divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.