Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in North Dakota have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
GROUNDS FOR DIVORCE
EITHER FAULT OR NO-FAULT
The parties can base their divorce because they have been separated for at least 12 months. Some choose to use fault grounds to gain an advantage in contested matters involving custody and support issues.
SEPARATION – NO WAITING PERIOD
RESIDENCY REQUIREMENTS AND WHERE TO FILE
A separation or divorce may not be granted unless the plaintiff has been a resident of the state for six months before filing the petition. Suppose the plaintiff has not been a resident of this state for the six months preceding the commencement of the action.
In that case, a separation or divorce may be granted if the plaintiff in good faith, has been a resident of this state for the six months immediately preceding the entry of the decree of separation or divorce. The action must be brought in the county where the defendant or one of the defendants resides at the time of the commencement of the action.
GROUNDS FOR DIVORCE
Divorces may be granted for any of the following statutory causes:
- Adultery
- Extreme cruelty
- Willful desertion
- Willful neglect
- Abuse of alcohol or controlled substances
- Conviction of felony
- Irreconcilable differences
SEPARATION
The court may grant a temporary or permanent decree of separation for any cause a divorce may be decreed.
MEDIATION-COUNSELING REQUIREMENTS
In any proceeding involving an order, modification of an order, or enforcement of an order for the custody, support, or visitation of a child in which the custody or visitation issue is contested, the court may order mediation at the party’s own expense.
The court may not order mediation if the custody, support, or visitation issue involves or may involve physical or sexual abuse of any party or the child of any party to the proceeding.
PROPERTY DISTRIBUTION
When a divorce is granted, the court shall make an equitable distribution of the parties’ property and debts. The court may redistribute property in a post-judgment proceeding if a party has failed to disclose property and debts as required by rules adopted by the court or the party fails to comply with the terms of a court order distributing property and debts.
ALIMONY SPOUSAL SUPPORT
Considering the parties’ circumstances, the court may require one party to pay spousal support to the other party for any period.
CHILD CUSTODY
Custody may be awarded to either the father or the mother. For custody, the best interests and welfare of the child are determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child.
These factors include all of the following when applicable:
- The love, affection, and other emotional ties existing between the parents and child.
- The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the child’s education.
- The parents’ disposition to provide the child with food, clothing, medical care, or other remedial care is recognized and permitted under the laws of this state in place of medical care and different material needs.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial home.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The child’s reasonable preference, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- Evidence of domestic violence. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault on other persons.
- The making of false allegations not made in good faith, by one parent against the other, of harm to a child.
- Any other factors considered by the court to be relevant to a particular child custody dispute.
CHILD SUPPORT
The court may compel either or both of the parents to provide for the support of their children. A judgment or order requiring the payment of child support until the child attains majority continues until the end of the month during which the child is graduated from high school or reaches the age of nineteen years, whichever occurs first, if:
a) The child is enrolled and attending high school and is eighteen years of age before the date the child is expected to be graduated;
b) The child resides with the person to whom the duty of support is owed.
The Department of Human Services shall establish child support guidelines to assist courts in determining the amount a parent should be expected to contribute toward the child’s support under this section.
PREMARITAL AGREEMENT
The right of a child to support may not be adversely affected by a premarital agreement.
Parties to a premarital agreement may contract concerning:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control the property.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support; and
- Any other matter, including their rights and obligations, is not in violation of public policy or a statute imposing a criminal penalty.
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
