Frequently Asked Questions – Divorce

The following is a list of answers to some general questions about divorce actions that we are frequently asked at Kellington & Oster, P.C.  If you have general questions about the legal process, click here.  If you have general questions about child custody and parenting responsibility, click here.

The answers to these questions are not comprehensive and should not be construed as legal advice.  If you have specific questions about your individual legal needs, contact us today for a consultation!  Call us at (701) 258-1074.

What are the legal grounds for obtaining a divorce?

In North Dakota, there are several grounds on which the court may grant a divorce.  These include adultery, extreme cruelty, willful desertion, willful neglect, abuse of alcohol or controlled substances, conviction of a felony, and irreconcilable differences (see N.D.C.C. § 14-05-03).  The most commonly used ground for divorce inNorth Dakota is irreconcilable differences. The reason for this is that the person who files for divorce has the burden of proving the grounds for obtaining the divorce.  In other words, the person requesting the divorce must prove one of the above grounds and the easiest one to prove is irreconcilable differences.

I want a divorce, but my spouse says they won’t sign any paperwork.  Can I still get a divorce?

Absolutely!  Both parties do not need to agree to obtain a divorce, nor do both parties need to sign paperwork.  A judge may grant a divorce judgment without the consent of one of the parties.

How long will my divorce take?

There is no definite answer to this question as it varies on a case by case basis.  No two cases are the same.  Likewise, no two cases last the same amount of time.  If both parties agree to the terms of their divorce, it could take as little as a month.  For more complicated cases where a significant amount of property is disputed and/or custody is disputed, it can take years to be finalized.

My spouse cheated on me / spent all of our money / went to prison / has a drug or alcohol problem.  It should be easy to win my case since my spouse did all these terrible things, right?

No.  In North Dakota you do not need to prove “fault” of one party to obtain a divorce.  All that needs to be proven is that you are no longer compatible with one another and that you will not reconcile (this ground for divorce is called irreconcilable differences).

Can I get spousal support?

Yes, spousal support is determined on a case-by-case basis.  In North Dakota, the court considers the circumstances of the parties when determining whether or not spousal support will be owed by one party to the other. Unless otherwise agreed to between the parties, spousal support terminates upon the remarriage of the person receiving spousal support or upon order of the court after a showing that the person receiving support has been cohabiting with another individual (in a relationship analogous to marriage)for one year or more. (N.D.C.C. § 14-05-24.1).

Will an affair influence custody arrangements in my divorce?

Not necessarily.  In NorthDakota, the court uses 13 “best interest” factors in consideration of custody/residential responsibility determinations.  Some of these factors include:

  • (f) The moral fitness of the parents, as that fitness impacts the child;
  • (k) The interaction and inter-relationship, or the potential for interaction and inter-relationship, 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 the physical harm, bodily injury, or assault, on other persons; and
  • (m) Any other factors considered by the court to be relevant to aparticular parental rights and responsibilities dispute.

These are just a few of the many factors the court may consider when making a custody determination and will never be the sole factors in making a custody determination.  Courts place the most weight on factors directly affecting the physical, mental, and emotional health of the children.  An affair might not affect the children and their best interests, nor might it affect a parent’s ability to provide the proper stability and care for a child. 

Who gets my retirement in a divorce?

In divorce actions, unless you come to come to an agreement about retirement accounts or have a prenuptial agreement stating otherwise, the Judge will consider the retirement account as part of the marital property and it will be considered for an equitable distribution between you and your spouse.  This doesn’t necessarily mean that it will be split equally between you and your spouse.  In some cases, both parties keep their own retirement accounts in each of their own names. An “equitable distribution” is simply what the court deems to be a fair and just split of all marital property.

What happens to my business in a divorce?

Business division can be a complicated issue.  If you and your spouse can agree to the division of the business or you have a prenuptial agreement regarding the business, then division can be fairly easy. However, if you do not agree and you do not have a prenuptial agreement, then there are many factors the court considers for the distribution of marital assets.  The court will split marital assets and property in a way that it deems just and equitable.  For answers to specific questions about your individual business and legal needs, you should consult with a licensed attorney.

Who determines how assets are divided?

In divorce actions, unless you and your spouse come to an agreement about marital assets or you have a prenuptial agreement about division of property, the Judge determines what an equitable distribution of property is.  This doesn’t necessarily mean that assets will be split equally between you and your spouse.  An “equitable distribution” is simply what the court deems to be a fair and just split of all marital assets and property.  The court considers a number of factors for such a distribution.  For specific questions about your individual legal needs, you should consult with a licensed attorney.

Will I be able to change back to my former name?

Yes.  Changing back to your former name can be a simple process if you do it at the outset of your divorce.  You can request to have this provision included in your final divorce decree and then you will be able to use that order to have your name formally changed back.  If you do not have this provision included in the final order, you may have to submit additional documents to the court for a name change. 

The information on this page should not be construed as legal advice nor should it be understood to create an attorney-client relationship.  The information provided on this page is intended only as a general guide to theNorth Dakota court process and is not intended as legal advice nor is it a comprehensive list of North Dakota state rules associated with the court process.  Kellington & Oster, P.C. is not responsible for consequences that may result from information provided on this page as this information cannot replace the advice of a competent licensed attorney in the state of North Dakota. Information on this page is for use at one’s own risk.  Contact us to schedule an appointment to address your individual legal needs.