How Is Our Property Divided?

In North Dakota, “when a divorce is granted, a court shall make an equitable distribution of the property and debts of the parties.” NDCC 14-05-24. All property held by either party, whether held jointly or individually, is considered marital property that the court can divide. You are probably asking yourself “what does equitable mean in this context?” Good question. Basically, it means “fair.” When making a property division in North Dakota, the division does not need to be equal to be “equitable” or “fair,” but any substantial disparity must be explained. Courts try to determine what is “fair” by applying what is called the Ruff-Fischer guidelines to the facts of your case. These factors include the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity if any, whether accumulated before or after the marriage and such other matters as may be material. Basically, you will try to show these factors weigh in favor of the distribution you want.

How Is Alimony/Spousal Support Determined?

In North Dakota, a person “may be required to pay spousal support to the other party for any period of time.” NDCC 14-05-24.1.  Like property division, the Court will look at the Ruff-Fischer guidelines for guidance; however, it really boils down to the “needs” of the spouse seeking support and the supporting spouse’s “ability to pay.” The North Dakota Supreme Court has frequently recognized a preference for rehabilitative support, rather than permanent support. This being said, because the factors are so subjective, the amount and duration are very hard to predict. Just know that if you take this issue to trial, whatever that Court finds, you will likely be stuck with that result if it were ever to be appealed.

How Is Custody Determined?

North Dakota courts love to apply facts to a list of factors! Like property division and spousal support, the Court will look at a list of factors called the “Best Interest Factors” to determine which parent the child or children should live with the majority of the time. This list includes factors such as the ability of each parent to assure the child receives adequate food, clothing, and shelter, each parent’s ability to meet the child’s developmental needs, the sufficiency and stability of each parent’s home environment, the impact of each parent’s extended family, the length of time the child has lived in each parent’s home, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, the mental health of the parents, as that mental health impacts the child, the preference of the child, and evidence of domestic violence.

How Is Child Support Determined?

The answer to this question depends on what kind of child custody arrangement you will have, e.g. primary (with one parent the majority of the time), equal (both parties have exactly the same amount of time with the child), or split (one child staying with one parent the majority of the time and the other child living with the other parent the majority of the time). Regardless, the simple answer to this question is that it is based on your gross income. It is a good idea to employ an attorney knowledgeable of the ins-and-outs of the child support guidelines because there are arguments that can be made to either increase or decrease a child support obligation, depending on the facts and circumstances. If you want to try to “ballpark” your’s or someone else’s child support obligation, I would encourage you to visit the free child support calculator provided by the State of North Dakota by clicking on this link.

Can We Avoid Court?

Absolutely. You can avoid ever having to step foot in a courtroom if, and this is a big if, you and your soon to be ex-spouse can agree to the terms and conditions of your divorce. One nice thing about living in North Dakota is that if you are divorcing and if you have children, you will qualify for a program in which you will receive six free hours of mediation. Mediation is a chance to come together with a third-party neutral who will try to help you solve the issues you have not been able to solve on your own. If you and your soon-to-be ex-spouse reach an agreement I (or another attorney) can draft the documents which result in a Judgment from the Court –without ever having to see a judge.

Conclusion

The bottom line is that the result, like with most legal issues, varies greatly depending on the facts of your particular case and how you present them to a judge. If you have an impending divorce you should really speak with an attorney to help you navigate these issues.

We have experienced family law attorneys here at SW&L who are happy to discuss this issue, or any other family law issue you may have, with you. You can reach our Family Law Team at 701-297-2890.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice.

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