Adultery in North Dakota: Does Cheating Affect Alimony?

If you're getting divorced in North Dakota and you or your spouse has cheated, you'll need to know how the adultery will affect the judge's decisions about your case, including alimony, child custody, and child support.

By , Attorney

Adultery—the legal term for when one spouse cheats on another—is a betrayal that often results in divorce. This article discusses how adultery impacts divorce and alimony in North Dakota.

Adultery as a Legal Ground for Divorce

There are several "grounds" (reasons) for a divorce in North Dakota, including:

  • adultery
  • extreme cruelty
  • willful desertion
  • willful neglect
  • abuse of alcohol or controlled substances
  • a felony conviction, and
  • irreconcilable differences (which simply means the couple can't get along anymore, and the marriage is beyond repair).

(N.D. Cent. Code § 14-05-03 (2021).)

The first six grounds are the "fault-based" grounds for divorce. In a North Dakota fault-based divorce, one spouse must show the court that the other spouse committed one of those six types of marital misconduct to get divorced. The filing spouse must prove these allegations with witnesses, text messages, photographs, or any other type of evidence the court will accept.

North Dakota law defines adultery as voluntary sexual intercourse between a married person with someone who is not the person's spouse. (N.D. Cent. Code § 14-05-04 (2021).) In order to get a divorce based on adultery, the filing spouse (the spouse requesting the divorce) will have to prove (in court) that the adultery happened—which might require evidence from a third party, such as a private detective. It is also important to know that if the non-cheating spouse "condones" the adultery, you can't use it as your grounds for divorce. "Condoning" adultery means the non-cheating spouse knew of the affair, forgave the spouse, and the marriage resumed.

A fault-based divorce case can be very emotional and result in conflict and animosity between the divorcing spouses. It is important to consider this when deciding what type of case to file, especially if you have children. A contentious divorce can cause children to feel even more unstable and emotional than an amicable one.

If you'd prefer to file for divorce without pointing fingers or airing your dirty laundry in the courtroom, you can request a no-fault divorce. In a North Dakota no-fault divorce, the spouse requesting the divorce has to allege only that there are substantial reasons for not continuing the marriage and which make it appear that the marriage should end. (N.D. Cent. Code § 14-05-09.1 (2021).) You can use irreconcilable differences as your legal grounds for divorce, even if there's adultery or other misconduct in the marriage.

Overview of Alimony in North Dakota

In North Dakota, the court refers to alimony as "spousal support." As the name implies, it is payment by one spouse to support and maintain the other during or after the divorce. There are three types of spousal support in North Dakota:

  • Temporary spousal support. Money that a spouse pays during the divorce proceeding (the time between filing for divorce and when the court finalizes the divorce). (N.D. Cent. Code § 14-05-23 (2021).)
  • Rehabilitative spousal support. Payment(s) from one spouse to the other while the supported spouse gains skills, training, or education sufficient to become self-supporting.
  • Permanent spousal support. Payments a spouse must make after the divorce is final. The purpose of permanent support is to provide longer-term support to a spouse who cannot become self-supporting. Permanent support isn't always "permanent." The judge may impose restrictions that would end it sooner than expected. For example, if the recipient cohabitates with another person, the court will likely terminate spousal support. (N.C. Cent. Code § 14-05-24.1 (3) (2021).)

When either spouse requests spousal support, the law requires that the court consider the circumstances of the parties, including:

  • each spouse's age and earning ability
  • the duration of the marriage
  • each spouse's conduct during the marriage
  • the station in life of each spouse
  • the circumstances and necessities of each spouse
  • the health and physical condition of each spouse, and
  • each spouse's financial circumstances, as shown by property owned, its value and income-producing potential, and whether the spouse owned it before or after the marriage.

Because there is no specific formula or calculation guideline for spousal support in North Dakota, the court will look at the above factors in each particular case and decide whether to award spousal support and, if so, how much to award.

Does Adultery Impact Alimony in North Dakota?

In North Dakota, adultery will not automatically result in a judge awarding alimony to the innocent spouse, nor will it automatically bar or prohibit an award of spousal support to the cheating spouse. But, marital misconduct such as adultery is one of many factors that the court will consider when deciding whether spousal support is appropriate.

The court will use the factors listed above, consider the evidence presented by each spouse, and assess the full circumstances of the marriage. After weighing all this, the court will decide if it should award spousal support and the payment amount.

Will Adultery Impact Child Support or Custody?

When a divorce involves minor children, the court will address child support and child custody. When creating a parenting plan or custody award, the judge's primary concern is always what's in the child's best interest. In North Dakota, the law requires judges to evaluate a set of "best interest" factors before finalizing a custody award, but marital misconduct is not one of those factors. Instead, North Dakota judges will evaluate:

  • the love, affection, and other emotional ties between the parents and the child and each parent's ability to provide the child with nurture, love, affection, and guidance
  • each parent's ability to provide the child with food, clothing, shelter, medical care, and a safe environment
  • the child's developmental needs and each parent's ability to meet those needs
  • the stability of each parent's home environment
  • whether each parent is willing to facilitate a relationship between the child and the other parent
  • the child's home, school, and community records
  • the child's and parents' mental and physical health
  • each parent's moral fitness
  • the child's preference
  • whether there's a history of domestic violence in the home
  • the interaction and interrelationship between the child and anyone who resides in each parent's home
  • whether either parent has a history of making false reports against the other, and
  • any other factor the judge considers relevant.

(N.D. Cent. Code § 14-09-06.2 (2021).)

When evaluating custody, the court will consider a parent's adultery only if it impacts the child. For example, if you had an affair with a convicted child abuser and you continue the relationship after your divorce, the court might consider your relationship and how it impacts your child before the judge awards custody. If the court believes your new relationship will negatively impact your child's mental or physical well-being, the judge may limit or deny you custody.

Child Support Is Calculated Using a Formula

North Dakota law requires both parents to support their children financially. Judges calculate child support in North Dakota using the state's guidelines and formula and will not consider either parent's marital misconduct in the equation. Instead, the court will obtain each parent's financial information, custody arrangement, and the child's medical and daycare expenses to determine a final child support number.