If you are getting divorced in North Dakota, do you know what property you get to keep and what you have to split with your spouse? And who will be responsible for your marital debts--or those either of you had before marriage?
North Dakota is an equitable distribution state. This means that property will be split between spouses in a way that is equitable. Equitable division does not have to be equal, but the court must start by presuming that all the property will be split equally between the spouses. From there, the court looks at the unique circumstances of the marriage and awards property based on the contributions of both spouses during marriage and the needs of each spouse after divorce. Ultimately, the court must divide all of the assets and debts fairly, even if that leaves the spouses with unbalanced shares.
Both Marital and Separate Property Will be Divided
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to the spouses separately, and how much there is of each. Generally, marital property is all property acquired or earned during the marriage. Non-marital property is property you owned before marriage. It could also include property you receive during marriage like a gift, an inheritance, or among other things, property or money that you got in exchange for your non-marital assets and kept separate during your marriage.
The distinction between marital and separate property is important even though the court will include all of both types of property in the division. Although the court could give your spouse an equal portion of the land that has been in your family for generations, for example, that may not be necessary if your spouse has other sufficient resources. It also depends on whether your spouse worked or lived on that land during the marriage, or raised children on it. The court would also consider the value of the land and whether it is encumbered by debt.
Real property like the family home, personal property like jewelry, and intangible property like income, dividends, social security benefits, and government pensions all must be divided at divorce. Debt and other liabilities are also subject to division. At divorce, debts are treated the same as any other property. Before dividing a debt, the court will have to characterize it as either marital or non-marital based on when it was acquired, who acquired it, and how it was used. Then the court will assign responsibility for it equitably.
Division Based on all the Circumstances
In North Dakota, the court starts by presuming that all property must be divided equally. Without additional information from the spouses, the result will be an equal division. If either spouse has a good reason why the property should be divided another way, the court will collect information from both spouses to get a complete picture of what each person owned before and during marriage, and what their individual needs will be after divorce.
From there, the court has wide discretion in how to distribute all of the property, although there is a specific rule on how to distribute social security benefits and government pensions. In addition to assets and debts, the court will likely consider the education, ages, and health of the spouses, as well as their earning capacities and employable skills. The court may also look at any other reasonable factor to make a just and proper division.
While the result may be unequal, the distribution must be fair. If you disagree with the outcome, you can ask an appellate court to review the decision. Also, if you think you could do a better job than a court in dividing your own property, then you will have many opportunities throughout your divorce to do just that. You and your spouse are free to agree on how to split your property. If you decide, for example, to sell the house and split the proceeds, or give up your interest in your spouse’s retirement benefits in return for the savings account, then you can submit a settlement agreement to the court. Usually, the court will accept this type of agreement without further involvement. On the other hand, if you can’t work together, or if there are certain items of property that you can’t agree on, then the court will decide for you.
Spousal Support Determined Separately
Spousal support (alimony) is a payment from one spouse to the other to help sustain the recipient spouse after divorce. In North Dakota, the court evaluates your need for alimony the same way as it divides your property, except that there is no presumption for equal division. It will consider all of the circumstances and may order one spouse to make payments for any period of time. Also, if you are worried that you won’t have access to certain funds or property while other assets are in dispute, you could ask the court at any time during the divorce proceedings for temporary support.
You can read the law on division of property and alimony in the North Dakota Century Code Sections 14-05-24 and 14-05-24.1respectively. If you would like to read some examples of how a court divided property, see the cases Williams v. Williams, 302 NW 2d 754 (ND S.Ct 1981) and Fischer v. Fischer 139 NW 2d 845 (ND S.Ct. 1966).