North Dakota Divorce

By WomansDivorce Editors

If you’re getting divorced in North Dakota, there are certain things that can make the process easier. First of all, having a basic understanding of the North Dakota divorce laws can help and we have provided an overview of the relevant laws below. You can also find out how to access the official child support guidelines and calculator if you have minor children. Plus, there are resources to help you locate a divorce lawyer, get access to online divorce forms, and find local domestic violence resources and divorce support groups in your area. 

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North Dakota Divorce Laws

To help you understand the terminology a little better, the plaintiff is the person who initiates the divorce process and the defendant is the person who the divorce papers are filed on.

What are the ND residency requirements to file for a divorce?
A person needs to have been a North Dakota resident for at least 6 months before filing the divorce petition. If the plaintiff hasn't lived in the state for the required time period, a separation or divorce may still be granted if he or she is a resident in good faith for 6 months immediately preceding entry of the separation or divorce decree. For military personnel, residency is established if the military member is stationed within the state.

Where is the divorce petition filed?
If the defendant is a North Dakota resident, the petition must be filed with the county district court where the defendant resides. Non-resident defendants must file the divorce petition in the plaintiff's county of residence.

Is it possible to get an annulment in North Dakota?
An annulment may be granted in the district court based on the following conditions:

1. If the party seeking the annulment was not of legal age (16 to 18 years old) to marry and did not have a parent or guardian's consent to marry. An annulment must be sought by underage spouse within 4 years after turning 18 or by the underage spouse's parent or guardian at any time before that spouse reaches the age of legal consent.
2. If either party was legally married to another person. The exception is if the former husband or wife has disappeared and is believed to be deceased for five years prior to the second marriage. There is no time limit for filing for an annulment on this ground.
3. If either spouse was mentally unsound when the marriage ceremony was performed. An annulment may be filed up until the death of either spouse by the injured party or that person's relative or guardian.
4. If the marriage was based on fraud or deception. The injured spouse needs to file for an annulment within 4 years of discovering the fraud.
5. If one spouse was forced to consent to the marriage. To get an annulment on this ground, the injured party must file within four years after the marriage.
6. If either party was impotent at the time of the marriage and the condition appears to be incurable. To get an annulment on this ground, the injured party must file within four years after the wedding.
7. If the marriage was incestuous. A person may not marry his or her parent, child, grandparent or grandchild of every degree. A person may also not marry a close (either half or whole blood) relative, such as a brother or sister, aunt or uncle, niece or nephew, or first cousin.

It's important to consult with an attorney if you feel you have grounds for an annulment, because many of the grounds are negated if you continue to live together as husband and wife after the reasons for the annulment arose. Children which are born during a marriage that is later annulled are considered legitimate.

Divorce Grounds:
A divorce decree may be granted based on the following reasons:

• Irreconcilable differences.
• Extreme cruelty - defined as serious physical or mental abuse by a spouse inflicted upon the other.
• Adultery - voluntary sexual activities with somebody other than a person's spouse.
• Willful abandonment when one spouse voluntarily deserts the other spouse, refusing sexual relations and leaves the family home with no intent to return (it is not desertion if an abused spouse left for reasons of safety). If both spouses mutually agree to separate, it will not be considered desertion. This cause for divorce must continue for at least a year before it can be consider as grounds for divorce.
• Willful neglect by refusing to provide for the needs of the other spouse when fully capable of doing so. This cause for divorce must continue for at least a year before it can be consider as grounds for divorce.
• Drug or alcohol abuse to the extent it interferes with normal everyday functions or which inflicts excessive mental distress on the other spouse. This cause for divorce must continue for at least a year before it can be consider as grounds for divorce.
• Conviction of a felony.

Is a separation agreement legally recognized in North Dakota?
You can file for a separation in North Dakota on the same grounds as for divorce if you meet the residency requirements. A separation decree can outline the provisions for custody and support of the children, alimony, and division of the marital estate. Once a separation is granted, a couple is still legally married but their rights and liabilities regarding the other spouse's property, business, and contracts ceases (except as detailed in the separation decree).

A decree of separation may be revoked if either party asks for it and if the other party is properly served. If the court determines that reconciliation of the couple is improbable, the court may revoke the separation decree and render a divorce decree.

How will everything be divided?
Any assets or debts acquired before the marriage occurred are considered that spouse's separate property or liability. Other assets which may be considered separate property include inheritances, gifts, and property designated as separate property via a judgment or by premarital agreement.

Everything else may be divided during the divorce. Barring a mutual agreement by the parties, the court will divide the marital estate as equitably as possible. If the court discovers after the divorce that one spouse failed to disclose assets and debts or failed to comply with the court ordered distribution of the marital estate, the court may redistribute the property and debts.

When is spousal support awarded in North Dakota?
Either spouse may be required to pay spousal support, depending on the circumstances of the parties, how long they have been married, and any factors the court deems relevant. The court may require the paying spouse to provide security to guarantee that payments will be made. The court may also award the family home to an innocent spouse for a set amount of time or indefinitely based on the facts of the case and within the guidelines of the homestead laws. Spousal support orders are subject to modification at a later date.

Can I request a name change?
North Dakota allows a name change request to be incorporated into a divorce petition as long as the person petitioning for the name change is a bona fide resident of the county for a minimum of six months. The petition must include which spouse is requesting the name change, the new name being requested, and certify that there is no intent to defraud or mislead anyone by changing his/her name. [Based on North Dakota Century Code; Chapter 32-28]

Effect of divorce:
A finalized divorce will return the parties to an unmarried status, but there may be conditions on future marriages as outlined in the divorce decree. The court may specify whether one or both of the parties will be allowed to remarry and how long they must wait before doing so. The court may also modify the divorce decree to permit the remarriage of either party at a later date.

Child custody laws in North Dakota:
When parents are unable to agree on legal and physical custody, the court will make the determination, taking into account such things as:

• The emotional ties the child has with each parent, as well as their ability to love, care for, and provide guidance for the child.
• Each parent's ability to provide adequate food, clothing, housing, and a safe environment for the child.
• The child's developmental needs and each parent's capacity to meet those needs, currently and in the future.
• How long the child has lived in each parent's home, as well the stability of that environment, including any extended family, and how desirable it is to maintain continuity in the child's life concerning the home, school, and community.
• Each parent's willingness to support the child's close relationship with the other parent.
• How each parent's moral fitness will affect the child.
• The physical and mental health of each parent to the extent that it affects the child.
• The preferences of the child regarding custody, taking into consideration age and maturity.
• The evidence of domestic abuse, especially if it resulted in great bodily harm, involved the use of a dangerous weapon, or reveals a pattern of violence. In such cases, physical custody will not be awarded to the violent parent.
• The interaction between the child and anyone who is living with, or frequently visits, a parent's home who may affect the child's best interest (especially if that person has a history of abuse).
• Falsely accusing the other parent of harming the child.
• Any other issues the court deems relevant.

Every child custody order will include a parenting plan, determined either mutually between the parents, or issued by the court. The parenting plan shall detail at a minimum the decision-making responsibilities for the child, legal residence for school purposes, custodial responsibilities, a parenting (visitation) schedule, visitation transportation of the child, methods to modify the parenting plan, and provisions for resolving disputes.

Unless the parents agree in writing or include a provision in their parenting plan, they cannot petition for a change in custody any sooner than two years after the initial custody order was established. A modification in residential custody may be granted after the two year period if the court determines there has been a material change in the circumstances of the child or the parents, or if changing custody is in the child's best interest.

The two-year time limit doesn't apply if the court determines:

• A parent is continually denying or interfering with the other parent's parenting time;
• The child's present environment may jeopardize his or her physical or emotional health or impair the child's emotional development; or
• The custodial responsibility for the child has changed to the other parent for longer than 6 months.

Relocation of a child:
The custodial parent may not move the child out of the state unless he or she has permission from the court or the consent of the other parent (if that parent has court-ordered visitation time). A court order isn't required if the other parent hasn't used his or her parenting time for at least a year or has moved to another state and is residing more than 50 miles away from the custodial parent.

Child Support in North Dakota:
Both parents are responsible for the education and support of their children until the age of 19 or until a child completes high school, whichever occurs first. A child support obligation ceases if the child no longer resides with the custodial parent, becomes emancipated, marries, or dies.

Child support is calculated by applying the North Dakota child support guidelines which are established by the North Dakota Department of Human Services. Both parents income is used in the computation, taking into consideration the custody arrangements, how many children are to be supported, and any child support obligations for children outside the marriage.

All child support orders will include a provision for health insurance if such coverage can be obtained at a reasonable cost for the obligated parent. If the custodial parent is able provide health insurance at no cost (or for a nominal cost), that parent will be required to carry the health insurance coverage. If neither parent is able to provide health coverage for the child, it will not bar the ability of the child to be covered under public health coverage.

Child support is paid to the state disbursement office, which will in turn issue the payment to the other parent. An income withholding order may be used to enforce child support orders and withholding payments will also be paid to the state disbursement office.

Termination of parental rights does not automatically terminate child support, unless by an order of the court. If the court does end a parent's duty to support a child, it doesn't relieve the duty to pay back child support.

Domestic Abuse Service Providers

Shelters and Hotlines in North Dakota