Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts effective Immediately
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in North Dakota, but does
include basic and other provisions.
General Summary:
Separation and Property Agreements may be entered into before a divorce is filed to be effective immediately.
When the parties entered into a separation agreement as a final division
of the marital property, expressly providing they would be bound by the
terms of the agreement in the event of future divorce proceedings, the
agreement cannot ordinarily be later modified by a trial court in a divorce
proceeding. North Dakota courts will examine the property settlement
agreement to insure that it is fair and reasonable. Ordinarily an Agreement
that is fair and reasonable and not unconscionable will not be subject
to modification by the court.
Statutes:
Title 14
DOMESTIC RELATIONS AND PERSONS
CHAPTER 14-07
HUSBAND AND WIFE
Permanent alimony - Division of property:
When a divorce is granted, the court shall make such equitable distribution of the real
and personal property of the parties as may seem just and proper, and may
compel either of the parties to provide for the maintenance of the children
of the marriage, and to make such suitable allowances to the other party
for support during life or for a shorter period as to the court may seem
just, having regard to the circumstances of the parties respectively. The
court from time to time may modify its orders in these respects.
Section 14-05-24.
Contracts to alter marital relations:
A husband and wife cannot by any contract with each other alter their marital relations, except
that they may agree in writing to an immediate separation and may make
provision for the support of either of them and of their children during
such separation. The mutual consent of the parties is a sufficient consideration
for such a separation agreement. Section 14-07-07.
Case Law:
When a divorce is granted, N.D.C.C. § 14-05-24 requires a trial
court to "make such equitable distribution of the real and personal property
of the parties as may seem just and proper." In doing so, however, the
North Dakota Supreme Court has encouraged district courts to recognize
valid agreements between divorcing parties. Crawford v. Crawford,
524 N.W.2d 833, 835-36 (N.D. 1994); ; Peterson v. Peterson, 313 N.W.2d
743, 744-45 (N.D. 1981). The public policy on divorce favors a "prompt
and peaceful resolution of disputes." Clooten v. Clooten, 520 N.W.2d
843, 846,(N.D. 1994). "[T]o the extent that competent parties have voluntarily
stipulated to a particular disposition of their marital property, a court
ordinarily should not decree a distribution of property that is inconsistent
with the parties' contract." Wolfe v. Wolfe, 391 N.W.2d 617, 619
(N.D. 1986).
District courts will not, however, blindly accept property settlement
agreements. Clooten v. Clooten, 520 N.W.2d 843, 846,(N.D. 1994).
The district court has a duty to make a just and proper distribution of
property under N.D.C.C. § 14-05-24 and this includes the authority
to rewrite a property settlement agreement for mistake, duress, menace,
fraud, or undue influence under N.D.C.C. § 9-09-02(1). Wolfe v.
Wolfe, 391 N.W.2d 617, 619 (N.D. 1986). Also, a district court
will not enforce an agreement if it is unconscionable. Crawford v. Crawford,
524 N.W.2d 833, 835-36 (N.D. 1994) (stating "the stipulation is so one-sided
and creates such hardship that it is unconscionable").
Therefore, in North Dakota, the district courts make two findings
when considering whether a settlement agreement between divorcing parties
should be enforced. The first inquiry is whether the agreement is free
from mistake, duress, menace, fraud, or undue influence under N.D.C.C.
§ 9-09-02(1). Wolfe v. Wolfe, 391 N.W.2d 617, 619 (N.D. 1986).
The second inquiry is whether the agreement is unconscionable. Crawford
v. Crawford, 524 N.W.2d 833, 835-36 (N.D. 1994).
A property settlement agreement incorporated in a divorce decree
may not be later modified by a trial court if it is intended by the parties
to adjust finally all the property rights of the parties. Sinkler v.
Sinkler, 49 N.D. 1144, 194 N.W. 817 (1923). To allow the court
to modify a contract under these circumstances would serve to discredit
all contracts between a husband and wife when divorce proceedings are initiated.
The court's authorization under § 14-05-24, NDCC, to make a just and
equitable distribution of properties does not allow it to rewrite a valid
contract absent statutory grounds governing rescission. Peterson
v. Peterson, 313 N.W.2d 743 (N.D. 1981).