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North Dakota Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in North Dakota, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The 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. (North Dakota Century Code - Volume 3A - Chapters: 14-05-17 and 28-04-05)
Grounds for Filing:The Complaint for Divorce must declare the appropriate North Dakota grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Divorces may be granted for any of the following causes:
1. Irreconcilable differences. 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.
1. Adultery. 2. Extreme cruelty. 3. Willful desertion. 4. Willful neglect. 5. Abuse of alcohol or controlled substances. 6. Conviction of felony. (North Dakota Century Code - Volume 3A - Chapters: 14-05-03)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:State of North Dakota, County of __________, In the District Court, __________ Judicial District. This is the North Dakota court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to North Dakota law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Verification, Marital Settlement Agreement, Financial Affidavit, Declaration Under the Uniform Child Custody Jurisdiction Act, and Notice of Final Hearing.
Court Clerk's Title:District Clerk's Office. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since North Dakota is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
When a divorce is granted, 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 redistribute property in a post-judgment 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)
Restoration or Name Change:The wife may request at the time of filing for a divorce to have her name restored to her former or maiden name.
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
If the parties have not agreed to a support amount, the court will take 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. 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)
Counseling or Mediation 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 parties' 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. (North Dakota Century Code - Volume 3A - Chapters: 14-09.1-02)
Child Custody:When minor children are involved in a divorce, the North Dakota courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
For the purpose of custody, the best interests and welfare of the child is 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: a. The love, affection, and other emotional ties existing between the parents and child. b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child. c. 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. d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity. e. The permanence, as a family unit, of the existing or proposed custodial home. f. The moral fitness of the parents. g. The mental and physical health of the parents. h. The home, school, and community record of the child. i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. j. Evidence of domestic violence. k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. 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. l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child. m. 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)
Child Support:North Dakota child support guidelines uses the Percentage of Income Formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support. .
The court will decide and establish a support obligation for those spouses that cannot come to an agreement. The court will apply the support guidelines by suing the net incomes of each parent as well as examining the resources that are available to each parent and any out of the ordinary circumstances that may warrant the inability to pay a certain amount of support. If the court desires, the support amount can be garnished from wages to ensure accurate and timely payments.
Unless dates for the commencement or termination of a child support obligation are specified by the court's order, a judgment or order requiring the payment of child support is effective as to the child in the month in which the order is signed and continues until the end of the month in which the support obligation terminates. (North Dakota Century Code - Volume 3A - Chapters: 14-08-07, 14-09-08, 14-09-08, 14-09-09)
Copyright Notice: The above synopsis of North Dakota divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
A person must be a resident of North Dakota for six months before filing for a separation or divorce. The action must be brought in the county in which the defendant or one of the parties resides at the time of the commencement of the action.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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