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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

A separation or divorce may not be granted unless the plaintiff has been a resident of the state for six months before filing the petition. If the plaintiff has not been a resident of this state for the six months preceding commencement of the action, a separation or divorce may be granted if the plaintiff in good faith has been a resident of this state for the six months immediately preceding entry of the decree of separation or divorce. The action must be brought in the county in which the defendant or one of the defendants resides at the time of the commencement of the action.

GROUNDS FOR DIVORCE: Divorces may be granted for any of the following causes:

1. Adultery.

2. Extreme cruelty.

3. Willful desertion.

4. Willful neglect.

5. Abuse of alcohol or controlled substances.

6. Conviction of felony.

7. Irreconcilable differences.

[Based on North Dakota Century Code; Chapters 14-05-03]

SEPARATION: The court may grant a temporary or permanent decree of separation for any cause for which a divorce may be decreed. Upon the granting of a separation, the court may include in the decree an order requiring a party to pay for spousal support and for the support of any minor children of the parties. The decree may also provide for the equitable division of the property and debts of the parties. [Based on North Dakota Century Code; Chapters 14-05-03.1 and 14-05-27]

MEDIATION OR COUNSELING REQUIREMENTS: In any proceeding involving an order, modification of an order, or enforcement of an order for the custody, support, or visitation of a child in which the custody or visitation issue is contested, the court may order mediation at the parties' own expense. The court may not order mediation if the custody, support, or visitation issue involves or may involve physical or sexual abuse of any party or the child of any party to the proceeding. [Based on North Dakota Century Code; Chapters 14-09.1-02]

PROPERTY DISTRIBUTION: When a divorce is granted, the court shall make an equitable distribution of the property and debts of the parties. The court may redistribute property in a post-judgment proceeding if a party has failed to disclose property and debts as required by rules adopted by the supreme court or the party fails to comply with the terms of a court order distributing property and debts. [Based on North Dakota Century Code; Chapters 14-05-24]

ALIMONY SPOUSAL SUPPORT: Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. [Based on North Dakota Century Code; Chapters 14-05-24.1]

CHILD CUSTODY: Custody may be awarded to either the father or the mother. For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

* The love, affection, and other emotional ties existing between the parents and child.

* The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

* The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

* The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

* The permanence, as a family unit, of the existing or proposed custodial home.

* The moral fitness of the parents.

* The mental and physical health of the parents.

* The home, school, and community record of the child.

* The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

* Evidence of domestic violence.

* The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

* The making of false allegations not made in good faith, by one parent against the other, of harm to a child.

* Any other factors considered by the court to be relevant to a particular child custody dispute.

[Based on North Dakota Century Code; Chapters 14-09-06.2]

CHILD SUPPORT: The court may compel either or both of the parents to provide for the support of their children. A judgment or order requiring the payment of child support until the child attains majority continues as to the child until the end of the month during which the child is graduated from high school or attains the age of nineteen years, whichever occurs first, if: a) The child is enrolled and attending high school and is eighteen years of age prior to the date the child is expected to be graduated; and b) The child resides with the person to whom the duty of support is owed.

The department of human services shall establish child support guidelines to assist courts in determining the amount a parent should be expected to contribute toward the support of the child under this section. [Based on North Dakota Century Code; Chapters 14-09-08, 14-09-08.2, 14-09-09.7]

PREMARITAL AGREEMENT: The right of a child to support may not be adversely affected by a premarital agreement. Parties to a premarital agreement may contract with respect to:

* The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

* The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

* The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

* The modification or elimination of spousal support.

* The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

* The ownership rights in and disposition of the death benefit from a life insurance policy.

* The choice of law governing the construction of the agreement.

* Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: a) That party did not execute the agreement voluntarily; or b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party: (1) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) Did not voluntarily sign a document expressly waiving any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) Did not have notice of the property or financial obligations of the other party.

If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

HOW TO ENFORCE CHILD SUPPORT IN NORTH DAKOTA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF NORTH DAKOTA

http://www.legis.nd.gov/cencode/t14.html