Divorce Laws of the State of North Dakota
(written by Mr. Sudhir Shah and Miss Sonam Bohra)
1) The North Dakota Century Code contains 65 Titles. Title 14 deals with domestic relations and persons. The said title contains all the regulations pertaining to Marriage and Divorce in the state of North Dakota.
2) The divorce complaint must be filed with the District Court of the County in which either the husband or the wife resides.
3) Residency requirements: the following are the residency requirements of the state of North Dakota:
A divorce may not be granted unless the plaintiff in good faith must be a resident of the state for six months immediately preceding commencement of the action.
If the above condition is not fulfilled still a complaint for divorce may be filed with the Court of North Dakota if the plaintiff in good faith has been a resident of this state for the six months immediately preceding entry of the decree of divorce.
4) Provision for service of summons: the following are the provisions for the service of divorce summons and divorce complaint upon the defendant:
Personal service: service of divorce papers is accomplished by delivering a copy of papers to the defendant personally. Such service may be made by:
The papers are said to be served if the same are left at the defendant’s usual place of abode with a person of suitable age and discretion residing therein.
The papers may also be handed over to the agent of the defendant. However the said agent must be authorized by law to accept the service on behalf of the defendant.
Delivery by mail: any form of mail may be used to serve the papers. A return receipt must be requested.
Publication: under this method the summons is published 3 times in a newspaper. The newspaper must be published in the county in which the divorce complaint is filed. The summons must be published 3 times in each week. If there exist no newspaper in publication in the aforesaid county then the summons must be published in any newspaper having general publication.
It is pertinent to know that service by publication may be made only when the defendant cannot be served using any of the above mentioned method.
[Note: the North Dakota Court Rules prescribe certain temporary restrictions by which both the spouses are bound once the summons is served]
5) Grounds for divorce: divorce may be granted for any of the following grounds:
Adultery: Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife.
Extreme cruelty: Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other.
Willful desertion: it refers to the deliberate abandonment of one spouse by the other. However such abandonment must continue for a period of 1 year to become a ground for divorce.
Willful neglect: willful neglect refers to the failure of one spouse to provide necessaries of life to the other spouse. However the said ground may be alleged only when on one hand the non providing spouse has the ability to provide the necessaries of life to the other spouse and on the other hand the other spouse does not have the ability to provide the basic necessaries of life to self. However such abandonment must continue for a period of 1 year to become a ground for divorce.
Abuse of alcohol or controlled substances: it means consumption of alcohol or controlled substance to such an extent that it deprives the person from devoting himself to work or business. In some cases such consumption would also have the implication of causing mental harm to the innocent party.
Conviction of felony: it means that either of the spouses is guilty of a wrongdoing or an offense.
6) No-fault divorce: existence of Irreconcilable differences is also a ground for divorce in the state of North Dakota. Irreconcilable differences refer to those differences which the court deems substantial enough for not asking the parties to continuing the marriage and which make it appear that the marriage should be dissolved.
7) Default divorce: default divorce refers to that divorce in which the other spouse does not file a response to the divorce action in the Court. Thus in the state of North Dakota the filing spouse gats a right to obtain default divorce if the other spouse does not reply within 20 days from the date of service of divorce papers.
[Note: the counting for calculating the duration of 20 days begins from the day immediately succeeding the day of service of divorce papers]
8) Defenses to divorce: the following are the factors on the basis of which divorce may be denied:
Condonation: It is the conditional forgiveness of a matrimonial offense which constitutes a cause of divorce. However if condonation is to be used as defense to a fault based divorce then it must meet the following factors:
Lapse of time: divorce may also be denied if there is unreasonable delay in filing the divorce complaint. If the cause for divorce exists and still the injured spouse does not approach the Court for unreasonable length of time, the Court shall presume that there has been connivance, collusion, or condonation of the offense. Such a delay gives rise to a presumption that the injured spouse intends to continue the marital relation by ignoring the ground for divorce existing between both the spouses.
[Note: the North Dakota law does not prescribe limitations of time for filing divorce complaint. However as stated above the Court shall make the above presumptions depending upon the facts and circumstances of each case.
However the Court shall forgo the unreasonable delay if the filing spouse puts forward reasonable grounds for not filing the divorce complaint without such delay]
9) Spousal support: The North Dakota law states that husband and wife have a mutual duty to support each other out of their individual property and labor. Thus depending upon the facts and circumstances of the case the Court shall order either of the spouses to pay alimony to the other spouse. In such order the Court shall state the duration and the amount of alimony. At the same time the Court may require either of the party to give a security for the payment of the alimony. The Court may ask either spouse to pay the other spouse’s Court fees and support the other spouse till the litigation ends.
10) Property distribution factors: North Dakota is an equitable distribution state. Thus the Court shall divide the property among both the spouses in an unbiased manner.
11) Child custody factors: the Court may award the custody of a child to a person, agency, organization, or institution if it appears to be, in the opinion of the judge, in the best interest and welfare of the child.
12) Child support factors: the Department of Human Services (child support agency) of the state of North Dakota determines the Child Support Guideline for the purpose of arriving at the amount of child support. The said guidelines are then circulated to all the agencies that are engaged in the job of determining the amount of child support. The child support agency establishes a State Disbursement Unit. The obligor parent has to pay the child support to the said unit. The unit then supplies the child support to the desired destination.
GLOSSARY OF TERMS