Part of divorce is the division of the divorcing couple’s property. The property subject to division and determining which divorcing spouse gets what property can be a complicated, multi-faceted process within a divorce. Couples getting a divorce after long-term marriage often have accumulated a significant amount of marital property. Additionally, some divorcing spouses may be nearing retirement and are dependent upon marital assets to supplement or support their retirement.
In the paragraphs that follow, what counts as marital property in divorce will be discussed, as well as how marital property is divided in a divorce after long-term marriage in North Dakota.
Marital property is property acquired by either spouse, jointly or individually, during the marriage. “During the marriage” means between the date of marriage and the “valuation date.” This date may be one of several things: (1) an end date/valuation date agreed upon by the spouses (if the spouses cannot agree on this date, the valuation date is the earlier of either) (2) the date that the parties separated (i.e., date when one party moved out of the marital residence); or (3) the date that one spouse was served with the complaint for divorce in the legal action.
In North Dakota, property owned by either spouse before the marriage is subject to division in a divorce as well. While its premarital ownership is a factor for the Court in determining who is awarded that property, all property, whether marital or premarital, whether owned individually or jointly, must be valued and accounted for in a North Dakota divorce action.
North Dakota is an “equitable distribution” state in terms of marital property in divorces. In equitable distribution states, courts divide marital property based on what is equitable. It is important to note that “equitable” does not always mean strictly equal. In some cases, one spouse may receive significantly more marital property than the other.
Of course, spouses are free to reach their own agreement about how they want to divide their assets and debts, and the court will usually approve those agreements. However, if the spouses are unable to agree, the court will order a division of marital property after considering the factors in the Ruff-Fischer guidelines.
There is no statutory definition of long-term marriage, but typically, marriages lasting longer than 10 years (or more) are considered “long-term.” When approaching the division of marital property, North Dakota courts begin by assuming that property will be split 50/50. From there, they examine the Ruff-Fischer guidelines to make any adjustments up or down from that starting point. Included in the Ruff-Fischer guidelines is the “duration of the marriage.”
Couples going through a divorce after long-term marriage may also have very different earning abilities. Consider, for example, a couple that married at age 25 who are now divorcing at the age of 50. One spouse may have given up their career or other income-earning potential and opportunities to stay at home with the children. The other spouse assumed the role of income-earner, and with the support of the stay-at-home spouse, the income-earning spouse was able to advance in their career. Now, at age 50, the income-earning spouse has some of their highest income-earning years ahead of them.
The stay-at-home spouse, on the other hand, has likely been out of the workforce for years, may have an outdated employment skill set, may need additional education or job training, and may need more of the marital assets (and even spousal support or alimony) to be able to provide for themselves after the divorce.
In North Dakota, property owned by one party prior to the marriage (or inherited by or gifted individually to one spouse but not the other during the marriage), are non-marital but may be considered in property division in a divorce.
© 2021 Fremstad Law