Ask An Attorney - KMOT.COM - Minot, ND - News, Weather, Sports

Ask An Attorney

Posted: Updated:

My husband and I have been married for 14 years. Recently I found out that he has been having on ongoing affair for the past 3 years. I plan on filing for divorce, and have heard North Dakota is a "no-fault" state. My first question is what exactly does "no-fault" mean; and second, is his infidelity going to play a role in the outcome of the divorce?

• She is correct in that North Dakota is a "no-fault" state.

• Essentially that means she could request a divorce on the basis of irreconcilable differences, which means she wouldn't officially be blaming him for the breakdown of the marriage


So that means her husband's infidelity will not be the basis for the divorce?

• If she requests the divorce on the grounds of irreconcilable differences, that is correct.

• Although I am guessing his infidelity had something to do with the breakdown of the marriage, legally that would not be the grounds for the divorce.

Can she request that the divorce be granted on the basis of his infidelity?

• She could.

• However, there would then be the issue of actually having to prove that the infidelity occurred. This can get messy.

• Even though his infidelity could very well be one of the underlying reasons for seeking a divorce, I would likely still recommend that she seek a divorce on the basis of irreconcilable differences.

• This would save her from not only the costs and fees associated with proving that the infidelity occurred, but the embarrassment that both parties, and their children (if they have them), would likely suffer.

That sounds like it would be stressful in an already stressful situation.

• That is another good point.

• Divorces are already stressful and emotions are running high, if there's anything that can be done to mitigate the stress, you would want to do that if at all possible—which is again why I would likely recommend filing for divorce on the basis of irreconcilable differences.

So will the husband's infidelity have any bearing on the outcome of the divorce?

• It may. If the case ends up going to trial the court will decide the property distribution based upon what seems equitable.

• In determining what is equitable the court will consider a variety of factors including the respective ages of the parties, their earning capacity, the duration of the marriage, the parties' conduct during the marriage—as well as other factors—which are known as the Ruff-Fischer guidelines.

The court can consider the parties conduct during the marriage?

• Yes; but that doesn't mean they will give it great weight.

• In this case it's possible the court would consider the husband's infidelity, but unless he was using marital assets to support his mistress or otherwise depreciating the marital estate to support his infidelity, it's likely the court wouldn't give it as much consideration as the wife probably feels it deserves.

• And further the parties' conduct during the marriage is only one of the factors that the court will look at in deciding what is equitable.

What do you mean by equitable?

• Because this is a long-term marriage in the eyes of North Dakota courts, they will generally look to a 50/50 division of assets and debts.

• However, it is important to note that equitable does not necessarily mean equal, but any substantial disparity needs to be explained by the court.

• So basically there are certain situations where the court will sometimes say that an equal distribution is not necessarily equitable.

What sort of situations?

• The situation I discussed earlier where the husband was disposing of marital assets to support his mistress is one example.

• Another example is simply where one party's need is greater than the other.

• There are other situations, but these are just a couple where the court may support an unequal, but otherwise equitable, division of property.

So that would be a case where her husband's infidelity could come into play.

• Exactly.

• Here, however, she simply states there was an ongoing affair. We do not have enough facts to guess if the affair could have a bearing on the distribution; but ultimately, it could.

Powered by WorldNow
    Powered by WorldNow
    All content © Copyright 2000 - 2014 Worldnow and KMOT. All Rights Reserved. For more information on this site, please read our Privacy Policy and Terms of Service.