equitable not equal:

THE INS and NOT-SO-EQUAL OUTS DURING DIVORCE

With national divorce rates at an all time high, you may be surprised (or not) to find that North Dakota ranks the lowest on percentage of marriages that end in divorce. While the national average of firsttime marriages that end in divorce teeters around the 50 percent mark, North Dakota’s divorce rate sits at approximately 8 percent.

Whether you’ve experienced divorce yourself, or witnessed someone else going through the process, you know that it can be a trying and confusing time. Among many other issues, one of the biggest concerns that separating couples face is the division of property and spousal support.

Here are three things you should know about property division and the awarding of spousal support:

01

Property division and spousal support are interrelated, and an equitable distribution doesn’t necessarily mean an equal distribution. The division of martial property and awarding of spousal support go hand-in-hand. An example of how this could play out in a divorce is for one spouse to take more real property in exchange for making a lumpsum spousal support or property settlement payment. Or, for one spouse to receive more tangible assets in exchange for getting a smaller percentage of their joint savings. Again, it is important to remember that equitable doesn’t necessarily mean equal. A common misconception is each spouse takes half. However, the division of property is rarely (if ever) that simple. In North Dakota, the standard is equitable division of property, which means one spouse may end up with more than the other. 02

Your income is not the only factor in determining spousal support. When awarding spousal support, the court looks at a great deal more than the earning income of the parties. The court will consider the needs of the spouse seeking support and the ability of the other spouse to pay. Additionally, North Dakota utilizes the Ruff-Fischer Guidelines which take into account: respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circum- stances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity if any, whether it was accumulated before or after the marriage, and other such matters that may be material. If marriage is very short, courts are more reluctant to award long-term spousal support. On the other hand, if a spouse has a disability or is physically dependent on others, this could weigh in favor of awarding long-term support.

Just because you came into the marriage with it, doesn’t mean you’ll leave the marriage with it. Another common misconception is the idea of individual property. In North Dakota, all property acquired during the marriage is marital property. There are exceptions to every rule, but the default rule is everything acquired during the marriage is marital property. So, just because the boat was purchased in one spouse’s name or because a retirement account is funded solely from one spouse’s job, that does not necessarily mean that spouse will end up with it in the divorce.

MORGAN L. CROAKER

This article was written and prepared by Morgan L. Croaker, an associate attorney with the Serkland Law Firm in Fargo, North Dakota. She concentrates her practice in the areas of divorce and family law; and general commercial litigation. For more information, call 701-232-8957, email at mcroaker@serklandlaw.com or visit serklandlaw.com.

This article should not be considered legal advice and should not be relied upon by any person with respect to his/her specific situation. [ aw ]