Property Division

The essential rule by which District Courts must follow when dividing property in a divorce case is, "the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper..." N.D.C.C. Section 14-05-24. The North Dakota Supreme Court has stated that an equitable distribution is that which is "just and proper." In other words, the court can award property in any way it sees fit so long as the distribution is fair to all concerned.

To provide at least some guidance, the Supreme Court has further instructed that, in determining equity and fairness in dividing marital estates, District Courts must consider:

The respective ages of the parties to the marriage;
Their earning abilities;
The duration of the marriage;
Their station in life;
The circumstances and necessities of each;
Their health and physical conditions;
Their financial circumstances as shown by the property owned at the time;
Its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and
Such other matters as may be material.

In long term marriages, the courts generally look to a 50/50 division of assets and debts. However, the North Dakota Supreme Court has often said that a property division need not be equal in order to be equitable. If the court finds that a 50/50 split is not equitable, any substantial disparities from the court must be explained. Our Supreme Court regularly affirms disparate distributions of marital estates, and has carved out a number of commonly recognized reasons supporting such distributions, including:

Family assets: assets received by gift or inheritance from the family of one of the parties.
Premarital assets: assets owned by a party prior to marriage;
Waste: a party has frittered marital assets away;
Disparate effort: the accumulation of marital assets was due to a greater work ethic and effort by one party; and
Need: one party's needs outstrip the others.