Adultery in North Dakota: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in North Dakota.

It's painful for a spouse to discover that the other has committed adultery - this type of betrayal often results in divorce. If you're considering a divorce due to your spouse's cheating, this article will answer questions about how adultery impacts divorce and alimony in North Dakota. If you have additional questions after reading this article, you should contact a family law attorney for advice and to protect your rights during the divorce process.

Adultery as a Legal Ground for Divorce

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

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

The first six grounds are referred to as the "fault-based" grounds for divorce. In a fault divorce, one spouse must show the court that the other spouse committed one of those six types of marital misconduct in order to get divorced.

With a no-fault divorce, the spouse requesting the divorce only has to allege that the marriage is suffering from "irreconcilable differences," which basically means the couple can't get along anymore and there's no hope of saving the marriage - no one has to point the finger at the other or claim any wrongdoing.

North Dakota law defines adultery as voluntary sexual intercourse between a spouse and someone who is not the person’s spouse. 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. This may require evidence from a third party, such as a private detective.

A fault-based divorce case can be very emotional and may result in conflict and animosity between the divorcing spouses. It is important to take this into consideration when deciding what type of case to file, especially if there are children of the marriage who would be impacted by the parents’ conflict. It is also important to know that if the adultery is “condoned” by the non-cheating spouse, the adultery can not be the basis for the divorce. “Condoning” the adultery means the non-cheating spouse knew of the adultery, forgave the spouse, and the marriage resumed.

The most common legal basis for a divorce in North Dakota is “irreconcilable differences.” By filing this type of case, the filing spouse does not have to prove fault of the other spouse. The court only has to find substantial reasons for ending the marriage and determine that those reasons support a divorce. This basis can be used for a divorce even when there has been misconduct, such as adultery.

For more information on divorce basics and filing for divorce in North Dakota, click here and here.

Overview of Alimony in North Dakota

In North Dakota, alimony is called “spousal support.” As the name implies, it is payment by one spouse for the support and maintenance of the other. There are three types of spousal support in North Dakota:

  • Temporary spousal support - this is support paid during the divorce proceeding, that is, the time between filing for divorce and when the final divorce is granted.
  • Rehabilitative spousal support - this is support paid to a spouse to help him or her gain skills, training or education sufficient to become self-supporting.
  • Permanent spousal support - this is support ordered at the time of the final divorce and is intended to provide longer-term support to a spouse who is unable to become self-supporting.

When the court is asked to consider making an award of spousal support, the law requires that the court consider the circumstances of the parties, including:

  • the age of each spouse
  • the earning ability of each spouse
  • the duration of the marriage
  • the conduct of each spouse 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
  • the financial circumstances of each spouse, as shown by property owned, its value and income-producing potential and whether it was owned 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 make a decision about whether to award spousal support and, if so, how much to award.

For information on how to determine spousal support in North Dakota, click here.

Does Adultery Impact Alimony in North Dakota?

Possibly. Marital misconduct, including adultery, will not automatically result in an award of alimony to the innocent spouse, and it will not automatically bar or prohibit an award of spousal support to the cheating spouse. But, marital misconduct is one of many factors that the court will consider when making a decision on spousal support.

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 spousal support should be awarded and, if so, the amount of payment.

Resources

For more information on North Dakota family law topics, click here.

N.D. Cent. Code §14-05 - Divorce

Ratajczak v. Ratajczak, 565 N.W.2d 491 (1997) - North Dakota Supreme Court case discussing martial misconduct and factors considered by court in awarding spousal support

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