Divorce – State FAQ – North Dakota
Residency requirements, venue and procedures
Q: How long must I have lived in North Dakota prior to filing for divorce in an North Dakota court?
A: North Dakota requires that the plaintiff to a divorce action be a resident in good faith of the State for at least six months prior to granting a Decree of Divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In North Dakota, proper venue for the divorce action is the District Court. An action for divorce must be brought in the county where the defendant resides. If the defendant is not a resident of the State of North Dakota, the suit may be brought in any county the plaintiff designates.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in North Dakota. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in North Dakota?
A: A divorce may be granted in the State of North Dakota on the following grounds:
2. Extreme cruelty;
3. Willful desertion for a period of one year;
4. Willful neglect for a period of one year;
5. Habitual intemperance for a period of one year;
6. Conviction of a felony;
7. Insanity for a period of five years; and,
8. Irreconcilable differences.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Either party may be ordered to pay alimony to the other spouse for support during life or for shorter duration as the court deems just, taking into consideration the circumstances of the parties.
Q: On what basis does the court decide how marital property is divided?
A: North Dakota is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents be granted visitation?
A: Yes. The grandparents and great-grandparents of an unmarried minor may be granted reasonable visitation rights to the minor by the district court upon a finding that visitation would be in the best interests of the minor and would not interfere with the parent child relationship.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court will award custody based upon the best interests and welfare of the child. Between the parents there is no presumption as to who will better promote the best interests of the child. Factors the court will consider in determining the child’s best interests include those listed in the divorce information section of the North Dakota Divorce Main Page.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The State of North Dakota has enacted child support guidelines which establish the amount of child support which is presumed to be the correct amount to be paid. This presumption may be rebutted by a showing of evidence that the amount under the guidelines would be unjust or inappropriate. Should the court deviate from the guidelines, it must make a written finding stating the amount that would have been owed under the guidelines, identify the reasons for deviation from the guidelines, and state the amount that is to be owed.