Know the Laws: North Dakota
UPDATED January 21, 2010
WomensLaw.org does not currently have divorce information for North Dakota. The following links may provide helpful information.
North Dakota Supreme Court
Link to divorce court forms.
Divorce Support - North Dakota
Provides a professional directory of divorce lawyers, mediators, counselors, financial planners and other divorce professionals as well as articles on child custody, visitation, child support, alimony, and property and debt division. You will also find access to other state specific resources, products and services.
North Dakota Divorce Legal Information Center
A resource on divorce and family law in the State of ND for non-lawyers and pro se litigants.
WomensLaw.org has no relationship with these organizations and does not endorse their services. We provide these links for your information only.
Below is general information about divorce.
- Basic Info
- Can I get a divorce?
- What are the steps to obtain a divorce in ND?
- What if myself or my spouse contest the divorce?
Basic Info
back to topWhat is divorce?
Divorce is a legal action that ends or "dissolves" a marriage. Here are the basic steps for getting a divorce:
- First, you must meet the residency requirements of the state. See Am I eligible to file for divorce in North Dakota?
- Second, you must have "grounds" (a legally acceptable reason) to end your marriage. See What are the grounds for divorce?
- Third, you file divorce papers and have copies sent to your spouse.
- Fourth, if your spouse disagrees with anything in the divorce papers, then he will have the opportunity to file papers telling his side. This is called "contesting the divorce." If he contests it, then you will have a series of court appearances to sort the issues out. If your spouse agrees with everything, then he will most likely sign the papers and send them back to you. If your spouse agrees with everything and signs the papers, this is called an "uncontested divorce."
- Fifth, if there is property that you need divided or if you need financial support from your spouse, then you will have to work that out either in an out-of-court settlement or in a series of court hearings. Custody can be decided as part of your divorce.
You and your spouse can agree in writing to be legally separated and agree to support payments paid by one of you to the other and arrange a plan for child support. A court can enforce these written agreements, unless a judge decides that they are extremely unfair to one of the parties.*
* N.D. Cent. Code, § 14-07-07
back to topWhat are the grounds for divorce?
(What reason or reasons must I have to be allowed to divorce?)*
"Grounds" are legally acceptable reasons for a divorce. In North Dakota, there are different grounds for fault and no-fault divorces.
The only ground for a no-fault divorce is irreconcilable differences. This means that the judge will look to see if there are good reasons for not continuing the marriage. *1
The grounds for a fault-based divorce are:
- Adultery-your spouse is unfaithful or cheats on you
- Extreme cruelty-one spouse inflicts serious bodily injury or mental suffering on the other. This includes domestic violence*2
- Willful neglect-when your spouse refuses to provide common life necessities*3
- Abuse of alcohol or controlled substances-the use must be severe enough that it affects business or causes great mental suffering for an innocent spouse*4
- Imprisonment in a state or federal prison for committing a felony. The spouse must be in prison at the time of the filing for divorce
- Desertion-any of these things count as desertion:*5
- Refusal to have intercourse for a year, if a medical condition doesn't make refusal necessary
- Refusal to live in same house as spouse for a year, as long as refusal is not because the spouse is violent or threatening violence
- You agree to separate, and then one of you wants to reconcile and the other doesn't
* N.D. Cent. Code, § 14-05-03
*1 N.D. Cent. Code, § 14-05-09.1
*2 N.D. Cent Code, § 14-05-05
*3 N.D. Cent. Code, § 14-05-07
*4 N.D. Cent. Code § 14-05-08
*5 N.D. Cent. Code, § 14-05-06; N.D. Cent Code, § 14-05-09
back to topWhat might I get in a divorce?
As a part of a divorce, you can get what the court finds to be your share of the marital property and debts. You may get support in the form of child support if you get custody of your children. You may also get spousal support or alimony.
In North Dakota, marital fault can be considered as a factor affecting the division of property.* (Division or property is the phrase that court uses when it splits up the stuff you and your spouse have collected, like the house, the bank accounts, furniture, etc.) This means that the judge may consider things like domestic violence or certain other things you or your spouse did wrong when deciding how to divide the property. A judge can take these things into consideration during the division of property whether you file for a fault-based or no-fault divorce. The judge will divide the property in the way it thinks is the most fair or equitable.
You may wish to ask for all or some of the things listed below. A lawyer can help you figure out what you should ask for based on your particular situation.
1. Your share of the marital property
Property includes money, your home, the car, personal items, and anything else you own. To divide the property, a judge will first determine what is "separate property" and what is "marital property."
Separate property is usually anything that you brought into the marriage and kept separate during the marriage.
Also, some gifts you receive during your marriage may be considered separate property, like an inheritance. However, in certain cases, these gifts might become marital property if they're not kept separate. For example, if you inherit a house, and you and your husband live in the home as a married couple and/or make improvements to it, it may become marital property.
Anything that is your separate property is usually yours to keep. Anything that is your spouse's separate property will usually be his.
Marital property is generally anything you or your spouse earned or acquired during your marriage. This may include wages, salaries, commissions, your home, furniture, etc. You and your spouse will likely each get some of the marital property, but you will not necessarily each get half. You and your spouse may be able to come to an agreement on dividing up the marital property. If you can't agree, a judge will divide your marital property in a way that he or she thinks is fair. This is called "equitable distribution".
A judge will look at several factors when deciding how to split up the marital property. Some of the factors a judge may consider are:*1
- Both of your ages
- How long you were married
- How both of you acted during the marriage (was one of you more at fault than the other for the end of the marriage?)
- The circumstances and needs of each of you
- The health and physical condition of both of you
- Your different financial situations (like what your separate incomes are and whether you are able to support yourselves)
- What you and your spouse would be able to earn in the future
- Anything else the judge thinks is important.
2. Debts
Debts that you collected together will be split up between you. Any mortgages, loans, credit card or other debts you have jointly acquired (debt you got while you were married) will be split between you. Like marital property, debts will not necessarily get split equally between the two of you. If some of the debt belongs more to one of you than the other, like student loans or credit cards in just one spouse's name, the judge may or may not split that debt up.
If you and your spouse still have joint credit cards that either of you can use, you may want to consider closing those accounts if you are concerned your spouse will run up the balance.
Debts will be split up along with the other property. It is important to keep in mind that the judge will generally not split up debts that only one of you had before you got married.*2
3. Custody
Legal custody is the right to make major decisions about your child. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery, and what kind of religious training your child receives.
Physical custody is the actual physical possession and control of a child (under 18 years old). In other words, it covers who the child lives with on a day-to-day basis.
If you have a minor child or children when you file for divorce, the court may provide for the custody, care, and support of that child or children in your divorce decree.
For more information regarding child custody in North Dakota, please visit our Custody Info page.
4. Alimony or spousal support
Alimony is money that one spouse must pay to help support the other spouse after a divorce. A judge will not award alimony in all cases. You are less likely to be awarded alimony if your marriage was short, you are relatively young and healthy, or if your spouse doesn't have enough money or property to help support you. A judge will usually award alimony for a set period of time to give the person receiving it a chance to become self-sufficient.
Alimony for you from your spouse will usually be called alimony, although sometimes it may be called spousal support. You may be able to get alimony as a part of your divorce.
Note that you may be able to get alimony as a part of a separation.*3
The judge will look at the following factors when deciding whether or not to award spousal support:*1
- Both of your ages
- How long you were married
- How both of you acted during the marriage (was one of you more at fault than the other for the end of the marriage?)
- The circumstances and needs of each of you
- The health and physical condition of both of you
- Your different financial situations (like what your separate incomes are and whether you are able to support yourselves
- You future earning capacity
- Whether your property was gotten before or after you got married
- Anything else the judge thinks is important.
The judge may also consider whether or not you have any job skills after spending years as a homemaker while your husband had a job to support the family. If you stayed home and took care of the house and raised the children rather than working, the judge may make him pay alimony to you. The court may also decide to grant alimony when you have worked to put your spouse through college, graduate, professional school, or anything else that might have increased his earning potential.*4
5. Child support
Child support refers to the money a parent must pay to support the children after a divorce or separation. The noncustodial parent pays money to the custodial parent. The child's need, the custodial parent's income, and the noncustodial parent's ability to pay are all factors usually taken into consideration when the court decides how much child support to award. For more information about collecting child support for your child in North Dakota, see our Custody Info page.
6. Removal of the abuser from the marital home
If your spouse has committed domestic violence against you, you may be able to have court to remove him from your home as a part of a protection order. Domestic violence includes when your spouse:
- physically harms you,
- causes you bodily injury,
- physically forces you into sexual activity,
- assaults you, or
- puts you in fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault.
During your divorce, you may as the Court for a protection order if your spouse has been abusive. However, you do not need to file for divorce to get a protection order. If you need one, you may want to consider getting the order as soon as possible rather than waiting until you file for divorce. For more information about getting a protection order in North Dakota, see our How to Get a Protection Order page.
8. Other Relief
You can also ask the court for other types of relief like:
- Changing your name back to your maiden name
- Health insurance coverage for you and your children-paid for by your ex-husband
- Naming of your children as beneficiaries on your ex-spouse's life insurance plan.
* Bader v. Bader, 448 N.W.2d 187, Davis v. Davis, 458 N.W.2d 309.
*1Ruff v. Ruff, 52 N.W.2d 107 and Fischer v. Fischer, 139 N.W.2d 845.
*2 N.D. Cent. Code, § 14-07-08
*3 N.D. Cent. Code, § 14-05-27
*4 Van Klootwyk v. Van Klootwyk, 563 N.W.2d 377, Wetzel v. Wetzel, 589 N.W.2d 339, Marschner v. Marschner, 621 N.W.2d 339. Hoverson, v. Hoverson, 629 N.W.2d 573.
back to topWill my children's last name change after I get a divorce?
No, divorce proceedings alone will not change your children's last name. If you want to change their last name, you will have to file for their name change separately in court. The other parent has to be notified and has the right to argue against the change.
To change your child's name, you'll need to file a petition in the court of the county you live in. (To find a list of county courthouses in North Dakota, go to our Courthouse Locations page.) Your child will have to have been a resident of that county for at least six months. You will also need to include the following information in your petition:
- The name requested and
- The reason why you want to change the name
A notice of the intended aplication must be published in the official newspaper of the county in wich the minor lives and if different, in the official newspaper of the county in wich each of the minor's parents live.
* Change of name of person - Petition - N.D. Cent. Code, § 32-28-02 (3)
Can I get a divorce?
back to topAm I eligible to file for divorce in North Dakota?
To be eligible for divorce in North Dakota, you must have been a resident of North Dakota at least 6 months before a judge issues the divorce decree.* Your spouse does not have to live in North Dakota. As long as you will have been a resident for at least six months before your divorce goes through, you can file for a divorce in North Dakota.**
It is important to note that, if both you and your husband live in North Dakota but you try to get a divorce in another state, North Dakota may not honor your divorce.
* Residence requirements - N.D. Cent. Code, § 14-05-17
** Both spouses do not have to be ND residents, just the plaintiff - Smith v. Smith, 459 N.W.2d 785.
back to topCan I get a divorce if my husband and I still live together?
Maybe. This depends heavily on your particular situation.
In North Dakota, you can sometimes lose your grounds for divorce through condonation.* Condonation is when your spouse does something that you can get a divorce for (abuses you, commits adultery, abuses alcohol or drugs very frequently, etc.) and you accept him back on the condition that he acts better.** When you accept him back or live with him again, you may have lost that grounds for divorce and may not be able to get it back unless he commits that act again or is does other things that show the judge that he really did not act right after you forgave him.*** Judges often don't consider continuing to live with an abusive husband as condonation unless you expressly agree to forgive him and try again.****
Because you could loose your grounds for divorce, we strongly encourage you to seek the advice of an attorney if you plan to remain in the same home as your spouse. Also, living with your spouse while divorcing him can be very emotionally difficult for you and for your children. But more importantly, it can be very dangerous. If your spouse has been abusive in the past, the stress and emotional difficulties involved in getting a divorce can make the abuse even worse. It is very dangerous for you and your children to remain with your spouse if there has been domestic violence in the home.
* Denial of Divorce (Condonation) - N.D. Cent. Code § 14-05-10
** Condonation defined - Requisites - N.D. Cent. Code, § 14-05-13
*** Revocation of condonation - N.D. Cent. Code, § 14-05-14
**** Remaining in the same home as an abusive spouse is not considered condonation unless there is an express agreement to do so - Fleck v. Fleck, 58 N.W.2d 765 and Condonation defined - Requisites - N.D. Cent. Code, § 14-05-13.
back to topWhat is an uncontested divorce?
An uncontested divorce is one where you do not expect your spouse to disagree with any aspect of the divorce or you do not think he will come to court for your hearing. In cases of uncontested divorce, you may represent yourself. But a lawyer might still be helpful, especially if your spouse has one. To get an uncontested divorce, you only have to file documents with the court. You and your spouse probably won't have to make an appearance in court.
If you do not have any children and your divorce is going to be uncontested, our Download Court Forms page may have some of the forms you need.
back to topHow much does an uncontested divorce cost?
In most situations, an uncontested divorce will be much cheaper than a contested divorce.
Each case will have to pay court costs (like filing fees and serving the papers on your spouse). Currently, the filing fee for an uncontested divorce without children is $80 - though the cost may have changed since we wrote this page.* Check with the clerk of court in your county to find out current fees. (ND Courthouse Locations)
If you cannot afford to pay the costs, you can try filing Petition for Order Waiving Fees and Financial Affidavit** . A Petition for Order Waiving Fees and Financial Affidavit is an application that you can file to ask the judge not to make you pay the court costs. A judge may or may not agree to waive the court costs. It is completely up to the judge. You may be able to get this petition from the clerk of court or from our Download Court Forms page. A judge may or may not agree to waive the court costs. It is completely up to the judge.
If you hire a lawyer, you have to pay the attorney's fees. If you cannot afford a lawyer, take a look at our ND Finding a Lawyer page. We have listings of legal resources for free or low-cost legal services throughout the state that can sometimes provide assistance.
If you decide to represent yourself, it may be a good idea to have a lawyer at least look at your paperwork to make sure it is accurate and fair. We especially recommend that you get a lawyer if your spouse has one.
* ht ttp://www.ndcourts.com/court/forms/divorce/divorceinstructions.pdf
** Civil action fees - Waiver - N.D. Cent. Code, § 27-01-07
back to topWhat is a contested divorce?
A contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support. A contested divorce is more complicated than an uncontested divorce. It is best to have an attorney assist you with a contested divorce-especially if your spouse has one. Go to our ND Finding a Lawyer page for legal resources in your area.
back to topHow much does a contested divorce cost?
In most situations, a contested divorce will be more expensive than an uncontested divorce.
In a contested divorce, you will have to pay the court filing fee and maybe other court costs. If you cannot afford the filing fees, you can file Petition for Order Waiving Fees and Financial
Affidavit, also called a pauper's affidavit.* A pauper's affidavit is an application that you can file to ask the judge not to make you pay the court costs. A judge may or may not agree to waive the court costs. You may be able to get this form from the clerk of court or our Download Court Forms page.
The most expensive part of a contested divorce is usually hiring an attorney. Attorney fees can range from a few hundred to several thousand dollars. Often the attorney will ask for what is called a retainer. A retainer is a lot like a down-payment or a deposit-it's money you pay your attorney up front to secure his or her services. Then you may have to pay your attorney an hourly rate, which your retainer is usually credited against. (This means if you pay $500 as a retainer, and your lawyer charges $100 per hour, the first 5 hours are covered by the retainer-5 hours at $100 an hour = your $500 retainer.) Many attorneys do not charge for the first appointment, which you can use as an opportunity to decide if that particular attorney is right for you.
If you cannot afford an attorney, one of the free or low-cost legal resources on our ND Where to Find Help page may be able to help. Please note, however, that some legal services providers are unable to take contested divorce cases.
* Civil action fees - Waiver - N.D. Cent. Code, § 27-01-07
back to topDo I need a lawyer?
A lawyer is not necessary to get a divorce in North Dakota-but it is almost always better to have one if you can.
If you are asking for custody, child support, financial support for yourself, or a share of the marital property, you may want to hire a lawyer because there may be things you ought to get in a divorce that you may not have thought you could ask for. A lawyer can also help you protect money or property that is yours-like property you had before the marriage or property you inherited during the marriage.
It is important that you find out if your spouse has a pension, retirement account, insurance, or other significant property before you decide whether to file your own divorce. If you do not ask for these things in the divorce, you may wind up giving them up forever.
The court will not give you a lawyer in divorce cases. If you need a lawyer, you will have to hire one or qualify for legal help at a legal services or legal aid organization. Please see our ND Finding a Lawyer Page for a list of legal resources.
What are the steps to obtain a divorce in ND?
back to topStep 1. Grounds
The process (steps) for each divorce is going to be very different for each marriage. Some will be longer with more steps and others will be shorter. Uncontested divorces are usually much shorter than contested divorces.
Each divorce case will be different. However, the following steps are pretty general and are part of many divorce processes. You will likely encounter many of these steps, if not all of them.
You must have grounds to get a divorce in North Dakota. See What are the Grounds for Divorce?
back to topStep 2. File your petition (fill out your forms and turn them into the court clerk in your county)
If you have a lawyer, he or she will handle this for you. Your lawyer will fill out all the appropriate forms and file them in the appropriate court. If you cannot afford an attorney, you may be able to get low cost representation from organizations that provide free or low-cost legal representation. To locate one of these organizations near you, visit our ND Finding a Lawyer page.
If you do not have an attorney, you may be able to use forms, fill them out, and file them yourself. The clerk of court (courthouse official in charge of records) in the county where you are filing may have some of the forms that you will need. To find the clerk's office in your county, go to our Courthouse Locations page.
If you do not have any children and your divorce is going to be uncontested, you can use a form provided by the North Dakota Supreme Court to file for divorce. (Download Court Forms). Your spouse will also need to sign some of these forms.
There are also do-it-yourself packages from office supply stores and online document delivery services. You can also find links to companies offering do-it-yourself kits on our National Resources page. Please note that WomensLaw.org has not reviewed any of these forms, and we do not know whether or not they will be helpful or even forms that your court will accept.
Once you're ready to turn your forms into the court, give them to the clerk of court in the county where you are filing for divorce. To find the clerk's office in your county, go to our Courthouse Locations page.
It is usually helpful to have an attorney to help you with everything you can. If you cannot afford to pay an attorney to handle your entire divorce or get help from a free or low-cost legal resource, you may want to consider paying an attorney to look over your forms and give you advice on how to revise and file them.
back to topStep 3. Service of Process
After you file your petition, your spouse will have to be served with a copy of your petition. Being served means giving the papers to your spouse to let him know that you have filed for divorce and that he needs to come to court if he wants to contest it or be involved in it. The whole point is that you give your spouse "notice" of the divorce-which just means that he knows that you have filed for divorce from him. If you do not know where your spouse is, there are other alternatives. If you are having trouble serving your spouse, it is highly recommended that you get a lawyer. To find one in your area, visit our ND Finding a Lawyer page.
You do not have to serve the papers on your spouse yourself. You can contact the local sheriff's office to find out exactly how to get someone to serve your spouse. Often the sheriff's department can serve your spouse themselves. You may also be able to get a constable or a private process server to serve your spouse. Do not attempt to serve the papers yourself if your spouse has ever been abusive to you.
back to topStep 4. Your Spouse Answers
After your spouse has been served, he is given 20 days to answer. .*
If he does not answer, a judge will usually give you what you asked for in your petition. This is called a default judgment.
If he answers and agrees with everything, then also you get what you asked for. This is an uncontested divorce. If one of these two things happens, you usually skip to Step 7.
If he does disagree with something, then your divorce is a contested divorce. If he doesn't agree, then you have go to the next step.
* www.ndcourts.com/court/forms/divorce/divorceform1.pdf
back to topStep 5. Discovery and Settlement Attempts
This is basically where both sides share information and try to reach some sort of agreement without actually having to go to court to have a judge decide. If you and your spouse reach an agreement here, you can submit that agreement to the judge. The judge may call an informal hearing to make sure both of you understand the agreement. If the judge approves of the agreement, he or she can issue a divorce decree. If you settle with your spouse here, then you can skip to Step 7. If you don't settle here, go to the next step.
back to topStep 6. Trial
You only do this step if you and your spouse cannot agree on a final settlement. If you go to trial, then both sides will present evidence and argue for what they want. The judge will then decide what he or she thinks is fair and then issue a divorce decree containing his orders. Trials can be difficult without the help of an attorney.
back to topStep 7. Judge Issues Divorce Decree
After you and your spouse either reach an agreement or the judge hears both sides at trial, the judge will issues a divorce decree. This is a document that says that you and your spouse are now legally divorced and orders a division of property.
What if myself or my spouse contest the divorce?
back to topHow do I contest a divorce I do not want?
If you are served with divorce papers do not want to get a divorce, you can contest the divorce. It is best to get a lawyer if you can afford it. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our ND Finding a Lawyer Page.
back to topWhat if my spouse contests the divorce?
Just because your spouse contests your divorce does not mean you definitely won't be able to get one. If your spouse wants to contest the divorce, he will do so when he is served the divorce papers. If your spouse has a lawyer, it is usually best to get one yourself.
Contesting a divorce doesn't necessarily mean that he doesn't want to divorce. It can also mean that he is willing to divorce, but he doesn't agree with you on how to split up the marital property or custody of the children.
When you have a contested divorce, usually takes longer and costs more money than an uncontested divorce. However, even though your spouse contests the divorce in the beginning, that does not mean you cannot reach an agreement without going to court. If your spouse contests the divorce at first and then you reach an agreement, you submit your agreement to the court and the judge will decide whether the agreement is fair and issue a divorce decree.
If you cannot come to an agreement, the case will go to trial. A trial can be expensive. In a trial, the judge will decide if the grounds for divorce and the things each spouse asked for are appropriate. The judge will make a final decision and issue a divorce decree.