14-05-24. Division of property and debts.
2,238 words·~10 min read·
/nd/title-14/chapter-14-05-divorce/14-05-24·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
1. When a divorce is granted, the court shall make an equitable distribution of the
property and debts of the parties. Except as may be required by federal law for specific
property, the valuation date for marital property and debt is the date mutually agreed
upon between the parties. If the parties do not mutually agree upon a valuation date,
the valuation date for marital property and debt is sixty days before the initially
scheduled trial date. If there is a substantial change in value of an asset or debt
between the date of valuation and the date of trial, the court may adjust the valuation
of that asset or debt as necessary to effect an equitable distribution and shall make
specific findings that another date of valuation is fair and equitable.
2. If one party to the divorce is covered by the civil service retirement system or other
government pension system in lieu of social security and is not entitled to receive full
social security benefits and the other party is a social security recipient, in making an
equitable distribution award, the court shall compute what the present value of the
social security benefits would have been to the party with the government pension
during the covered period and subtract that amount from the value of the government
pension in order to determine the government pension's marital portion.
3. The court may redistribute property and debts in a postjudgment 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.
14-05-24.1. Spousal support. 1. As used in this section:
a. "Length of marriage" means from the date of the marriage until the service of a
summons for an action for legal separation or divorce.
b. "Material change in circumstances" means a change that substantially affects the
financial abilities or needs of the parties and which was not contemplated by the
parties at the time of the original award. 2. The court may not award permanent spousal support. Upon consideration of the
provisions of this section, the court may require one party to pay spousal support to
the other party for a limited period of time upon expressly finding:
a. The recipient lacks sufficient property or income or the property or income is
insufficient to enable the recipient to provide for the recipient's reasonable needs,
considering the marital standard of living; and
b. The payor has the ability to supply those means without undue economic
hardship. 3. In addition to any other factors the court considers relevant in determining the amount
and duration of spousal support, the court shall consider:
a. The age of the parties;
b. The earning ability of each party;
c. The duration of the marriage;
d. The conduct of the parties during the marriage;
e. The station in life of each party;
f. The circumstances and necessities of each party;
g. The health and physical condition of each party; and
h. The financial circumstances of the parties as shown by the property owned at the
time of the divorce, including the value of the property at the time of the divorce,
the income-producing capacity of the property, and whether the property was
acquired before or after the marriage. 4. After considering the factors in subsection 3, the court may award:
a. Rehabilitative spousal support when it is possible to restore a spouse to
independent economic status or to equitably divide the burden of the divorce by
increasing that spouse's earning capacity.
b. General term spousal support when a spouse is not capable of rehabilitation,
self-support, or to minimize the burden of the divorce.
c. Lump sum spousal support as additional marital property to a spouse or the court
may otherwise adjust the distribution of the marital property and debt to eliminate
the need for spousal support or to reduce the amount or the duration of the
spousal support. 5. Except upon written findings by the court which require a deviation beyond the time
limits of this section is necessary, spousal support terminates upon the following:
Length of Duration of spousal support award as percentage of
marriage the number of months of the length of the marriage
Less than 5 years Up to 50%
Between 5 and 10 years Up to 60%
Between 10 and 15 years Up to 70%
Between 15 and 20 years Up to 80%
20 years or more Duration agreed upon by parties or for a limited
time as determined by the court. 6. The court may modify its spousal support order, subject to the following limitations:
a. If a material change in circumstances occurs during the rehabilitative period,
rehabilitative spousal support may be modified.
b. If a material change in circumstances occurs, general term spousal support may
be modified.
7. Upon the filing of a judgment, the parties may not seek and the court may not order a
modification of lump sum spousal support.
8. The parties may expressly preclude or limit the modification of spousal support
through a written agreement that is part of the judgment for divorce.
9. Unless otherwise agreed by the parties in writing, spousal support is terminated upon
the remarriage or death of the spouse receiving support. The court may require
reasonable security from the payor spouse in the event of the payor's death.
Immediately upon remarriage, the spouse receiving support shall provide notice of the
remarriage to the payor spouse at the last known address of the payor spouse. 10. Unless otherwise agreed to by the parties in writing, upon an order of the court based
upon a preponderance of the evidence that the spouse receiving support has been
habitually cohabiting with another individual in a relationship analogous to a marriage
for one year or more, the court shall terminate spousal support. 11. There is a rebuttable presumption that spousal support terminates upon the payor's
attaining full retirement age for social security purposes. The rebuttable presumption
may be overcome if the court determines spousal support should continue based on
the following factors:
a. The ages of the parties at the time of the marriage, the time of the entry of the
spousal support award, and the time of the application for retirement;
b. The degree and duration of the economic dependency of the recipient upon the
payor during the marriage;
c. Whether the recipient has foregone, relinquished, or otherwise sacrificed claims,
rights, or property in exchange for a more substantial or longer spousal support
award;
d. The duration or amount of spousal support already paid;
e. The health of the parties at the time of the retirement application;
f. Assets of the parties at the time of the retirement application;
g. Sources of income, both earned and unearned, of the parties, including whether
the payor spouse intends to continue employment;
h. The ability of the recipient to have saved adequately for retirement; and
i. Any other factors the court deems relevant.
14-05-24.2. Summary real estate disposition judgment. 1. If real estate is described in a judgment and decree of divorce, the court may direct
either of the parties or their legal counsel to prepare and submit to the court, in a form
prescribed by the court, a proposed summary real estate disposition judgment. Upon
approval by the court and filing of the summary real estate disposition judgment with
the clerk of court, the clerk of court shall provide to any party upon request certified
copies of the summary real estate disposition judgment. 2. A summary real estate disposition judgment must contain the following information:
a. The full caption and file number of the case and the title "Summary Real Estate
Disposition Judgment";
b. The dates of the parties' marriage and of the entry of the judgment and decree of
divorce;
c. The names of the parties' attorneys or if either or both appeared pro se;
d. The name of the judge and referee, if any, who signed the order for judgment and
decree;
e. Whether the judgment and decree resulted from a stipulation, a default, or a trial
and the appearances at the default or trial;
f. If the judgment and decree resulted from a stipulation, whether the real property
was described by a legal description;
g. If the judgment and decree resulted from a default, whether the petition contained
the legal description of the property and whether disposition was made in
accordance with the request for relief;
h. Whether the summons and petition were served personally upon the respondent
in accordance with the North Dakota Rules of Civil Procedure;
i. If the summons and petition were served on the respondent only by publication,
the name of each legal newspaper and county in which the summons and petition
were published and the dates of publications;
j. Whether either party changed the party's name through the judgment and decree;
k. The legal description of each parcel of real estate;
l. The name or names of the persons awarded an interest in each parcel of real
estate and a description of the interest awarded;
m. Liens, mortgages, encumbrances, or other interests in the real estate described
in the judgment and decree; and
n. Triggering or contingent events set forth in the judgment and decree affecting the
disposition of each parcel of real estate. 3. a. On the court's own motion or on application by an interested person, the court
shall issue an order authorizing the clerk of court to issue an amended summary
real estate disposition judgment to correct an erroneous legal description of real
estate contained in the judgment and decree of divorce.
b. An application to correct a legal description under this subdivision must contain:
(1)The erroneous legal description contained in the judgment and decree;
(2)The correct legal description of the real estate;
(3)Written evidence satisfactory to the court to show the correct legal
description, or a request for an evidentiary hearing to produce evidence of
the correct legal description; and
(4)A proposed amended summary real estate disposition judgment.
c. The court shall consider an application under this subsection on an expedited
basis. The court's order must be based on the evidence provided in the
application, the evidence produced at an evidentiary hearing, or the evidence
already in the record of the proceeding. If the court is satisfied that an erroneous
legal description should be corrected under this subsection, the court may issue
its order without a hearing or notice to any person. A filing fee is not required for
an application under this subsection. The court's order must be treated as an
amendment of the court's findings of fact regarding the legal description of the
property in question, without the need to amend the original judgment and
decree. The court shall issue the order if the court specifically finds that the court
had jurisdiction over the respondent in the divorce proceeding and that the
property was sufficiently identified in the original proceedings to prevent prejudice
to the rights of either party to the divorce and that the amendment will not
prejudice their rights. The court's order is effective retroactive to the date of entry
of the original judgment and decree of divorce.
d. An amended summary real estate disposition judgment must be treated the same
as the prior summary real estate disposition judgment for all purposes.
e. On request by any interested person, the clerk of court shall provide a certified
copy of an amended summary real estate disposition judgment showing the
correct legal description of the real property affected by the judgment and decree.
f. This subsection may not be used to add omitted property to a judgment and
decree of divorce, unless the court determines that the omitted property is an
integral or appurtenant part of real property already properly included in the
judgment and decree. 4. An order or provision in a judgment and decree that provides that the judgment and
decree must be recorded in the office of the county recorder means, if a summary real
estate disposition judgment has been approved by the court, that the summary real
estate disposition judgment, rather than the judgment and decree, must be recorded in
the office of the county recorder. 5. The summary real estate disposition judgment operates as a conveyance and transfer
of each interest in the real estate in the manner and to the extent described in the
summary real estate disposition judgment. A summary real estate disposition
judgment, or an amended summary real estate disposition judgment that supersedes
an earlier judgment, is prima facie evidence of the facts stated in the summary real
estate disposition judgment. A purchaser for value without notice of any defect in the
divorce proceedings may rely on a summary real estate disposition judgment or a later
amended summary real estate disposition judgment to establish the facts stated in the
judgment.
6. If a conflict exists between the judgment and decree and the summary real estate
disposition judgment, the summary real estate disposition judgment recorded in the
office of the county recorder controls as to the interest acquired in real estate by any
subsequent purchaser in good faith and for a valuable consideration, who is in
possession of the interest or whose interest is recorded with the county recorder,
before the recording of the judgment and decree in the office of the county recorder.