Legal Separation in North Dakota FAQs

When a marriage is in trouble, divorce isn't necessarily the only solution. A legal separation may be a viable alternative. If you live in North Dakota, these answers to frequently asked questions may help you decide.

By , Retired Judge

Does a Legal Separation End the Marriage?

No. Although a legal separation can resolve the issues a divorce typically addresses, it can't dissolve the marriage. Only a divorce can do that.

Does North Dakota Law Provide for a Legal Separation?

It does. North Dakota courts have the authority to grant a temporary or permanent decree of separation. But in order to obtain that, you must have grounds (reasons). Those grounds are the same ones you'd need if you were seeking a divorce. So, in a court action for separation, you'd have to prove at least one of the following:

  • adultery
  • extreme cruelty (grievous bodily injury or grievous mental suffering)
  • willful desertion (voluntary separation by one of the spouses, with the intent to desert)
  • willful neglect (failure of a spouse to provide the other with common necessaries of life—like food and shelter—when that spouse has the ability to provide them, and the other spouse doesn't)
  • abuse of alcohol or controlled substances
  • conviction of a felony, and
  • irreconcilable differences (substantial reasons for not continuing the marriage).

Regarding the spouses' rights and obligations after the court issues the "decree of separation," the decree basically puts the spouses in the position they'd be in if they weren't married. Of course, this is subject to the terms of the decree, which address issues such as custody and parenting time (visitation), child support, spousal support (alimony), and distribution of the couple's property. But, at the end of the day, the marriage itself is technically still in effect.

The downside to filing a lawsuit for legal separation is that it necessitates wending your way through the court system. Court cases tend to be drawn out, because of the court's scheduling requirements and procedural rules. And when you're in court, there's often considerable downtime before a judge is available for your hearing or conference. If your lawyer is billing by the hour, time spent waiting around results in higher attorneys' fees.

Be aware, however, that there's an alternative to filing a lawsuit. For many couples, the preferred path to a legally valid separation is to enter into what's known as a Separation Agreement (also called a Property Settlement Agreement). This can get the job done without involving the courts.

What Is a Separation Agreement?

A separation agreement is a written, binding contract between spouses. Like a court case for separation, or even divorce, it seeks to resolve the various issues in your marriage. Negotiating a separation agreement usually saves time and money because, unlike being in court, you and your spouse control the flow of the process.

As with any valid contract, the spouses are legally obligated to abide by the separation agreement's terms. This means that if a spouse violates the agreement, the other spouse can go to court to seek enforcement.

Another advantage to having the agreement is that if you eventually decide to get divorced, the agreement normally states that you will incorporate it into your divorce judgment. This typically moves the divorce along much more quickly, because the agreement has already resolved the major issues most couples fight about.

If a Marriage Is Broken, Why Would Someone Choose Separation Over Divorce?

Even if a marriage is irreparably damaged, there are several reasons spouses might still opt for separation. Sometimes, the couple simply aren't emotionally ready to commit to formally ending the relationship. In other cases, choosing separation is nothing more than a matter of economics. For example, spouses may want to retain the ability to file joint tax returns. Or they might want to remain married for the ten year period needed for one spouse to claim social security based on the other spouse's future benefits.

Couples may also choose separation if divorce conflicts with their religious beliefs. Likewise, one or both spouses might see divorce as a social stigma, although that's much less prevalent today than in the past.

One very popular reason was to allow a spouse to maintain health coverage through the other spouse's employer. But that has become increasingly less viable in today's health care climate, so spouses shouldn't presume this option will be available to them.

There are also couples who believe that opting for a separation wouldn't be as traumatic for their children as a divorce. Whether that's true depends on the circumstances of each case. But there are potential pitfalls to this reasoning. For example, it's not unusual for children to want their parents to get back together. If you know this isn't going to happen, consider the possibility that giving a child false hope might do more harm than good. It could be beneficial to consult a mental health professional about the potential impact of your decision.

What Is a Trial Separation?

The term "trial separation" generally refers to a couple's informal agreement to live separate and apart, usually to give themselves some space to assess their marriage without the tension of living together. Often, they'll make an arrangement for things such as parenting time, paying household bills, and so on. A trial separation, in and of itself, isn't really a valid legal status. You'd need a court separation or a formal separation agreement for that.

It's important to note that, with a trial separation, if your spouse doesn't live up to the conditions of any informal agreement you've reached, you may not have a legal recourse. A court might not view your arrangement as a binding contract (unlike with a formal separation agreement). That said, with issues involving children, like custody and child support, you can always make an application to the court for assistance.

Do I Need to Hire an Attorney for a Legal Separation?

No. But be aware that the issues involved in a legal separation are often complex. Attempting to resolve them without the guidance of someone thoroughly familiar with family law could cause you major headaches down the road. So, to protect your interests, consider consulting a knowledgeable local divorce lawyer.

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