North Dakota Divorce Procedures

North Dakota Divorce Procedures
 
Complete overview of North Dakota divorce laws for people considering a North Dakota divorce or filing a North Dakota divorce with issues to be resolved about child custody, child support, visitation and alimony.

North Dakota Divorce Residency Requirements

In order to file your Complaint for Divorce in North Dakota, you must make sure the District Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the North Dakota residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

A separation or divorce may not be granted unless the plaintiff in good faith has been a resident of the state for six months next preceding commencement of the action. If the plaintiff has not been a resident of this state for the six months preceding commencement of the action, 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 entry of the decree of separation or divorce.

The Dissolution of Marriage is typically filed with in county in which the filing spouse resides. (North Dakota Century Code – Volume 3A – Chapters: 14-05-17 and 28-04-05)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of North Dakota. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the North Dakota residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

North Dakota Grounds for Divorce

The Complaint for Divorce is the initial document filed with the North Dakota court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

Divorces may be granted for any of the following causes:

No-Fault Based Grounds:
1. Irreconcilable differences. The marital situation under this ground must be substantial enough for not continuing the marriage.

Fault Based Grounds:
1. Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. Willful neglect. 5. Drug and alcohol abuse. 6. Conviction of felony. (North Dakota Century Code – Volume 3A – Chapters: 14-05-03)

Every divorce case that is filed in the state of North Dakota must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

North Dakota Uncontested Divorce

This information is an overview of the uncontested North Dakota divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in North Dakota.

The spouse who files for divorce must be a resident of North Dakota for at least six months. If the Defendant is a resident of North Dakota, the action must be filed in the county of his or her residence. If the Defendant is not a resident, the action may be filed in any county designated by the Plaintiff.

Grounds for divorce are No-Fault, which means irreconcilable differences, and Fault, including 1) adultery, 2) conviction of a felony, 3) willful desertion, 4) cruel and inhuman treatment, 6) willful neglect and 7) alcohol and drug abuse.

The party filing the action is called the Plaintiff; the party responding is called the Defendant. Actions are brought in the District Court, which is the county court.

Legal separations are permitted for the same grounds as fault divorce and with the same residency requirements for the Plaintiff.

North Dakota does not have a summary divorce, but offers a simplified dissolution when:

> both the husband and wife agree on all issues;

> neither have minor children, nor is the wife pregnant or expecting;

> one of the spouses has lived in the state for six months;

> the pending divorce is the only legal action pending between the spouses.

To file for a divorce using this routine, the Plaintiff must prepare the following forms:

a) A Summons, which gives the Defendant 20 days to file an answer and enjoins both spouses from dissipating assets, harassing each other and removing any children from the state;

b) A Complaint, which stipulates that they meet the four above conditions and lists irreconcilable differences as the grounds for divorce;

c) A Verification, which certifies the truth of the Complaint and must be notarized;

d) A Settlement Agreement, which stipulates the terms and conditions of the division and distribution of the marital estate;

e) An Admission of Service, by which the Defendant admits receipt and acceptance of the Summons and Complaint;

f) An Affidavit of Proof for Stipulated Judgment, which recapitulates the Complaint and incorporates the terms of the Settlement Agreement into the Court’s Findings of Fact, Conclusions of Law and Order of Judgment;

g) Findings of Fact, Conclusions of Law and Order of Judgment, which is the court’s finding and conclusions about the case and orders the divorce;

h) Judgment [Redacted], which contains personal information that is not included in the final Judgment.

i) Judgment, which contains the same information in the Judgment [Redacted] and ends the marriage.

The Summons must be filed even when the spouses agree to divorce.

North Dakota Simplified Divorce Procedures

Separation agreements are specifically authorized by statute. [North Dakota Century Code; Volume 3A, Chapter 14-07-07].

Simplified Divorce Procudures Each state has its own unique filing procedure. When filing for divorce in North Dakota, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the North Dakota Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the North Dakota Laws and the filing requirements.

North Dakota Property Division Factors

In North Dakota, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the District Court within the Decree of Divorce.

North Dakota is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the District Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the District Court to be fair.

If the parties can not agree otherwise, the court shall make an equitable distribution of the property and debts of the parties.

The court may award property in a postjudgment proceeding if a party has failed to disclose property and debts as required by rules adopted by the supreme court or the party fails to comply with the terms of a court order distributing property and debts. (North Dakota Century Code – Volume 3A – Chapters: 14-05-24)

Since North Dakota is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

North Dakota Spousal Support/Maintenance/Alimony Factors

In North Dakota the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the District Court will order support from one spouse to the other on a case-by-case basis as follows:

1. The court will take into consideration the unique circumstances of the parties.

2. The court may require one party to pay spousal support to the other party for any period of time.

3. The court may modify its spousal support orders and all support orders may be made through the clerk of the court. (North Dakota Century Code – Volume 3A – Chapters: 14-05-24)

North Dakota Child Custody Factors

In North Dakota, the court main objective when making a custody decision is to do what is best for the children by considering the following factors:

1. The love, affection, and other emotional ties existing between the parents and child.

2. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

3. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

4. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

5. The permanence, as a family unit, of the existing or proposed custodial home.

6. The moral fitness of the parents.

7. The mental and physical health of the parents.

8. The home, school, and community record of the child.

9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

10. Evidence of domestic violence.

11. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in

12. The making of false allegations not made in good faith, by one parent against the other, of harm to a child.

13. Any other factors considered by the court to be relevant to a particular child custody dispute. (North Dakota Century Code – Volume 3A – Chapters: 14-05-22, 14-09-06, 14-09-06.1 and .2)

In North Dakota, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

North Dakota Child Support Factors

Either parent may be ordered to pay child support. The amount awarded will be based on a consideration of the following factors: (1) the net income of the parents; (2) the other resources available to the parents; and (3) any circumstances that might be considered in reducing the amount of support on the basis of hardship. There are specific child support guidelines that the court will consider which have been prepared by the North Dakota Department of Human Services. Child support payments are required to be paid through the state disbursement office. The court can order child support payments be guaranteed by wage assignments and wage withholding orders. All child support orders will be reviewed every 3 years, unless neither parent requests such a review. [North Dakota Century Code; Volume 3A, Chapters 14-08-07, 14-09-08, 14-09-08.1, 14-09-08.4, 14-09-09.1, 14-09-09.2, and 14-09-09.7]

North Dakota child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate North Dakota child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate North Dakota child support deviation factors that may be applicable to the situation.

North Dakota Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted at any time upon a finding by the court that the visitation would be in the child’s best interest and would not interfere with the parent-child relationship. Title 14, Chapter 14-09, Section 14-09-06 (N.D.C.C. §14-09-06).

When Adoption Occurs: Visitation rights terminate unless the adoption is by a stepparent or grandparent.

Child Custody Statutes: Factors: (1) love, affection and emotional ties between child and each party; (2) each party’s capacity and disposition to give love, affection and guidance, and to continue the child’s education; (3) each party’s disposition to provide food, clothing, medical care and other material needs; (4) length of time the child has been in a stable, satisfactory environment, and the desirability of maintaining continuity; (5) the permanence, as a family unit, of the existing or proposed custodial home; (6) moral fitness of the parties; (7) mental and physical health of the parties; (8) child’s home, school and community record; (9) the reasonable preference of the child, if of sufficient intelligence, understanding and experience; (10) any existence of domestic violence; (11) the interaction and interrelationship between the child and parties, siblings and other significant persons; and (12) any other relevant factor. N.D.C.C. §§14-05-22 and 14-09 et seq.

Parents May Choose: Yes

North Dakota Military Divorce Laws

A North Dakota military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From North Dakota Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local North Dakota court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a North Dakota court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in North Dakota
b) You or your spouse must be stationed in North Dakota

Grounds for North Dakota Military Divorce

The grounds for a military divorce in North Dakota are the same as a civilian divorce.

Dividing the Property

Along with the normal North Dakota property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In North Dakota, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal North Dakota child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

North Dakota Child Support Guidelines

The North Dakota child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate North Dakota child support order.

North Dakota Child Support Guidelines

Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: NO
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES

* Percent of Income Model: North Dakota utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

North Dakota Child Support Definitions

Definitions.

1. “Child” means any child, by birth or adoption, to whom a parent owes a duty of support.

2. “Child living with the obligor” means the obligor’s child who lives with the obligor most of the year.

3. “Children’s benefits” means a payment, to or on behalf of a child of the person whose income is being determined, made by a government, insurance company, trust, pension fund, or similar entity, derivative of the parent’s benefits or a result of the relationship of parent and child between such person and such child. Children’s benefits do not mean benefits received from means tested public assistance programs.

4. “Custodial parent” means a parent who acts as the primary caregiver on a regular basis for a proportion of time greater than the obligor, regardless of custody descriptions such as “shared” or “joint” custody given in relevant judgments, decrees, or orders.

5. “Gross income” means income from any source, in any form, but does not mean benefits received from means tested public assistance programs such as aid to families with dependent children, supplemental security income, and food stamps. Gross income includes salaries, wages, overtime wages, commissions, bonuses, deferred income, dividends, severance pay, pensions, interest, trust income, annuities income, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, retirement benefits, veterans’ benefits (including gratuitous benefits), gifts and prizes to the extent each exceeds one thousand dollars in value, spousal support payments received, cash value of in-kind income received on a regular basis, children’s benefits, income imputed based upon earning capacity, military subsistence payments, and net income from self-employment.

6. “In-kind income” means the receipt of any valuable right, property or property interest, other than money or money’s worth, including forgiveness of debt (other than through bankruptcy), use of property, including living quarters at no charge or less than the customary charge, and the use of consumable property at no charge or less than the customary charge.

7. “Net income” means total gross monthly income less:

a. Federal income tax obligation based on application of standard deductions and tax tables;

b. State income tax obligation based on application of standard deductions and tax tables;

c. Federal Insurance Contributions Act (FICA) and medicare deductions or obligations;

d. A portion of premium payments, made by the person whose income is being determined, for health insurance policies or health service contracts, intended to afford coverage for the child or children for whom support is being sought, determined by dividing the payment by the total number of persons covered and multiplying the result times the number of such children;

e. Payments made on actual medical expenses of the child or children for whom support is being sought;

f. Union dues where required as a condition of employment;

g. Employee retirement contributions, deducted from the employee’s compensation, other than FICA, where required as a condition of employment; and

h. Employee expenses for special equipment or clothing required as a condition of employment or for lodging expenses incurred when engaged in travel required as a condition of employment (limited to thirty dollars per night or actual lodging costs, whichever is less), incurred on a regular basis, but not reimbursed by the employer.

8. “Net income from self-employment” means gross income of any organization or entity which employs the obligor, but which the obligor is to a significant extent able to control, less actual expenditures attributable to the cost of producing income to that organization or entity.

9. “Obligee” includes, for purposes of this chapter, an obligee as defined in subsection 8 of North Dakota Century Code section 14-09-09.10 and a person who is alleged to be owed a duty of support.

10. “Obligor” includes, for purposes of this chapter, an obligor as defined in subsection 9 of North Dakota Century Code section 14-09-09.10 and a person who is alleged to owe a duty of support.

11. “Split custody” means a situation where the parents have more than one child in common, and where each parent has sole custody of at least one child.

Minimum support level.

A support obligation should be established in each case where the obligor has any income. Even though the obligor’s payment is far from sufficient to meet the child’s needs, considerations of policy required that all parents understand the parental duty to support children to the extent of the parent’s ability. Equally important considerations of policy require the fostering of relationships between parents and children which may arise out of the recognition of parental duty.

Determination of net income from self-employment.

1. Expenses attributable to the cost of producing income vary from business to business. Deducting expenses from the gross income of the business determines the adjusted gross income, according to internal revenue service terminology. If the latest tax return is not available or does not reasonably reflect the income from the business, a profit and loss statement which
will more accurately reflect the current status of the business must be used.

2. After adjusted gross income from self-employment is determined, all business expenses allowed for taxation purposes, but which do not require actual expenditures, such as depreciation, must be added to determine net income from self-employment. Business costs actually incurred and paid, but not expensed for internal revenue service purposes, such as principal payments on business loans (to the extent there is a net reduction in total principal obligations incurred in purchasing depreciable assets), may be deducted to determine net income from self-employment.

3. Farm businesses experience significant changes in production and income over time. To the extent that information is reasonably available, the average of the most recent five years of farm operations, if under-taken on a substantially similar scale, should be used to determine farm income.

4. Land costs are a significant part of farm expenses. Because farmlands are used both for the production of income and for investment purposes, for the purpose of making determinations under this section, deduction of business costs relating to the purchase of land is limited to the lesser of:

a) The fair rental value of the land being pur-chased; or

b) The total principal and interest payments actually made toward the purchase of the land.

North Dakota Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the North Dakota Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
State of North Dakota, County of ___________, In the District Court, __________ Judicial District

The proper name of the court in which a Divorce is filed in the state of North Dakota. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the North Dakota Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Findings of Fact, Conclusions of Law, and Order for Judgment

The title and name of the legal document that will finalize the North Dakota Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
District Clerk’s Office

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

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. [North Dakota Century Code; Volume 3A, Chapters 14-06-01 and 14-06-06].

Property Distribution:
Equitable Distribution

The applicable North Dakota law that will dictate how property and debt is to be divided upon Divorce.

People who visited that page were looking for:

• %average time it takes for judge to sign divorce papers in North Dakota% (1)
• north dakota modify a divorce decree than was less than fair and equitable (1)
• North Dakota Divorce Procedure (1)
• north dakota divorce military property disposable income (1)
• north dakota century code; volume 3a chapter 14-07-07 (1)
• nd divorce summons and complaint (1)
• nd child support guidelines for farmers (1)
• how long to finalize divorce in north dakota (1)
• form for listing of monthly expenses and income in nd divorce cases (1)
• Divorce Proceedings in ND (1)