Divorce

Our attorneys can answer any questions regarding the initiation of divorce proceedings in North Dakota. The first step to getting a divorce is making the decision you can no longer stay married to your spouse. Once you have made up your mind to divorce your spouse you must see if you fulfill certain requirements allowing you to file for a divorce in North Dakota.

If you meet those requirements you serve a Summons and Complaint on your spouse. The Summons simply starts the action and lets your spouse know how much time they have to respond. The Complaint provides allegations you believe support your claim for divorce and also lists what you want to get out of the divorce i.e., it states how you want the assets and debts to be divided, who you feel should have the primary residential responsibility of the children, etc.

Once the Summons and Complaint have been served, they should be filed with the Court. Filing these documents with the Court triggers a few things. First, it will trigger a Judge being assigned to your case. If there are children involved you will also be ordered to attend a parenting class at this time. Second, it will eventually trigger a scheduling conference in which you and the opposing party will appear in front of a judge to set deadlines and a trial date.

Between the filing of the Summons and Complaint and the trial date, you can try to settle the matter or prepare for trial, although often times both of these things happen at the same time.

When preparing for trial you can issue discovery (questions the opposing party has to answer under oath regarding topics relevant to the divorce action), take depositions (ask the opposing party or potential witnesses questions orally, which are recorded by a court reporting service and transcribed), and gather exhibits you feel will be helpful to your case.

When trying to settle a matter most people simply communicate with one another regarding what it is they want out of the divorce. If these communications fail, it is a good idea to use a third-party neutral, called a mediator, to see if he or she can help with the unresolved issues in your divorce.

If you do settle the case, you do not need to appear in front of a judge. A document called a “Stipulation” is drafted and presented to the Court along with a few other documents, which allow the Court to enter a Judgment. The Judgment is what you and your now ex-spouse would need to follow in regard to the issues resolved in the divorce. For instance, if there was ever a dispute as to who was to have the right to possession of a certain asset or who was to have the parties’ children on a certain holiday, you are to look to the Judgment to find the answer.

How Long Does It Take?

The divorce process varies in length of time depending on whether or not you settle the matter or whether you take it to trial. In this regard, it takes longer to try a case than it does to settle it. Although it varies on a case-to-case basis, there are a few things one can look at to predict how long it will take for a case to be finalized when agreeing to the issues incident to the divorce i.e., in a “stipulated divorce.” These things include: 1) the number of assets and debts involved (the more there are the more time it takes to draft the Stipulation); 2) whether there are children involved (if there are children the Stipulation takes longer to draft); 3) how quickly your attorney believes he or she can get the appropriate paperwork to the judge assigned to your case; and 4) how quickly the judge and clerk sign the appropriate paperwork, which could vary by up to four weeks depending on when the judge has his or her “opinion writing week.” This all said a “typical” (if there is such a thing) stipulated divorce takes between one and two months.

If a matter is taken to trial it is not uncommon for a case to take six months to be completed. In fact, it is not unheard of for it to take over one year for parties to get their day in court. In these situations, there are a number of factors that typically contribute to the “delay.” In this regard, it is common for parties to need more time for their experts to gather information and write reports. It is also common for the Court and two attorneys to have difficulty finding a date that works for everyone. Lastly, there is a large volume of cases right now, which pushes potential trial dates out further than most people want.

Regardless of whether you are thinking of stipulating your divorce or taking it to trial, it is a good idea to hire an attorney that will look out for your best interests and advise you as to the options you have available. Divorce is a difficult time in most people’s lives, which involves many areas of law and life. You should not have to do it by yourself.

Divorce Or An Annulment?

An annulment is a legal procedure in which a marriage is deemed void. In other words, unlike a divorce, an annulment establishes that a marriage never existed under the law. The parties to an annulment do not have any rights in or to the other party’s property and are not entitled to spousal support.

As mentioned above, a divorce is a legal procedure in which a valid marriage is deemed severed by a judge. In a divorce action, the parties have certain rights and obligations that must be addressed. Often times divorces involve property division, pets, debt division, spousal support (alimony), parental responsibility (custody & visitation), and child support. This process is much more common than the annulment process in North Dakota. This is more than likely due to the fact divorce is easier to obtain than an annulment.

In order for a marriage to be annulled by a district court in North Dakota a person must prove one of the following causes existed at the time of the marriage:

• One of the parties was under the legal age of consent i.e., 18, and that party did not receive the consent of his or her parents or legal guardian prior to the marriage.
• One of the parties was married at the time he or she married his or her current spouse.
• Either party was of unsound mind, unless said party, after becoming of sound mind, freely cohabitates with his or her spouse.
• Either party’s consent was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabitated with his or her spouse.
• Either party’s consent was obtained by force unless such party afterward freely cohabitated with his or her spouse.
• Either party was, at the time of the marriage, physically incapable of entering into the marriage state, and such incapacity continues and appears to be incurable.
• The marriage was incestuous.

In regard to divorces, North Dakota is a “no-fault” state. This simply means that neither party is required to prove fault or grounds beyond a showing of the irretrievable breakdown of the marriage or irreconcilable differences. As such, if a person wants a divorce, they will be able to get one in North Dakota, regardless of what the other party wants, by simply alleging the parties cannot stay married to one another any longer. Even though a party can obtain a divorce without proving any “fault,” when dividing the property and debts, or when considering whether or not to grant one party spousal support, the “fault” of one party is relevant in North Dakota.

Contact SW&L Attorneys Today

Your state laws and the circumstances particular to your situation will determine whether or not a divorce or annulment is right for you. The family area of our blog has more information regarding divorce & other family law services. Please contact our family lawyers in Fargo at 701-297-2890 to discuss your case.