North Dakota LGBT divorce follows the same legal procedures as heterosexual divorces following the landmark Supreme Court decision in Obergefell v. Hodges. Same-sex couples in North Dakota now have full marriage equality rights, including the right to divorce with the same legal protections available to opposite-sex married couples. However, LGBTQ couples still face unique legal challenges in navigating certain aspects of family law.
Marriage Equality and Divorce Rights in North Dakota
Thanks to the Obergefell v. Hodges decision on June 26, 2015, same-sex marriage became legal throughout the United States, including North Dakota. This Supreme Court ruling established that the denial of marriage rights to same-sex couples is unconstitutional. Marriage and divorce between same-sex couples is now handled by North Dakota courts identically to the process governing opposite-sex marriages.
Before Obergefell, North Dakota had restricted marriage to the union of one man and one woman and denied recognition to same-sex unions under any legal designation in both its Constitution and by statute. A lawsuit challenging the state's refusal to license and recognize same-sex marriages, Ramsay v. Dalrymple, was initiated in June 2014 but proceedings were suspended in January 2015 pending the Supreme Court's action.
No-Fault Divorce for Same-Sex Couples
North Dakota is a no-fault divorce state, which makes divorce law significantly clearer for all couples including LGBTQ couples. You don't need to convince a judge that your spouse was unfaithful, abusive, or engaged in other misconduct. You simply need to share your irreconcilable differences and reasons why you shouldn't be married any longer.
The grounds for no-fault divorce are irreconcilable differences, which are substantial reasons for not continuing the marriage. The court needs only to find that irreconcilable differences exist to grant the divorce. This approach applies equally to same-sex and opposite-sex couples.
Unique Legal Challenges in Same-Sex Divorce
While the legal landscape surrounding same-sex relationships has evolved rapidly, LGBTQ couples can still face additional complications during divorce that other couples may not encounter.
Pre-Marriage Relationships and Property Division
Many same-sex couples lived together and shared their lives for years before marriage became legal. This creates complications regarding what constitutes marital property versus separate property. Typically, the date a marriage begins controls what is considered marital property, but since same-sex couples were legally prohibited from marrying, the true marital relationship may have existed for years before the legal wedding.
For example, if your partner bought property with joint funds before you were married because marriage wasn't legally available, that property might be considered separate property under normal divorce rules. In North Dakota, which follows equitable distribution principles, judges have authority to decide on any property division method that's fair. Some judges might recognize this unfairness and split assets acquired during the relationship but before legal marriage, though there's no guarantee.
Civil Unions and Domestic Partnerships
Many same-sex couples established civil unions, domestic partnerships, or reciprocal beneficiary relationships before they had the legal right to marry. Those relationships must also be properly dissolved during a same-sex divorce in addition to ending the legal marriage. Some couples may have registered partnerships in multiple states, cities, or counties and then later married, requiring termination of each registration.
Property Division in LGBT Divorces
North Dakota is an equitable distribution state, meaning courts divide marital property fairly rather than equally. Property division laws apply the same to same-sex marriages and heterosexual marriages. The court divides property in a way it sees as "just and proper," considering factors including the respective ages of parties, their earning ability, duration of marriage, conduct during marriage, station in life, circumstances and necessities of each spouse, health and physical condition, and financial circumstances.
While property division rules aren't unique to LGBTQ divorces, the interpretation of North Dakota's statute leaves much determination up to the judge, requiring experienced family law attorneys to navigate the system effectively.
Marital vs. Separate Property Complications
Generally, any property or assets that spouses earned or acquired during the marriage is marital property. However, for same-sex couples who cohabited before marriage equality, this rule could lead to unfair property division. Assets purchased during the relationship but before legal marriage might be considered separate property belonging solely to the purchasing spouse under traditional rules.
North Dakota judges may consider the unfairness of this situation when dividing property, but outcomes vary depending on judicial discretion and how effectively attorneys present evidence of the relationship's duration and shared contributions.
Child Custody and Support in Same-Sex Divorce
Child custody issues can be particularly complicated in same-sex divorces, with outcomes often depending on biological and legal ties to children.
Parental Rights and Presumptions
Since gay marriage is recognized in North Dakota, a child adopted or conceived through sperm donation by a married LGBTQ couple is in the custody of both partners. Therefore, if the couple divorces, both parties are legally recognized as parents, and custody will be determined by the courts based on the child's best interests.
The Supreme Court ruling in Pavan v. Smith extended Obergefell to other benefits of marriage, including parentage. This means adoption by married same-sex couples is legal in all states. The ruling may also mean that wives of mothers who have a child during marriage through assisted reproduction will be considered the child's other parent.
Several state courts have held that the "paternity presumption"—traditionally providing that a man married to a mother is presumed to be the child's father—also applies to the wife of a mother who had a child during marriage using assisted reproduction. North Dakota courts generally follow this principle.
Non-Married LGBTQ Couples and Custody
If an unmarried LGBTQ individual has a child or adopts a child, their partner has no legal custody rights if they're unmarried. The partner must go through the step-parent adoption process to obtain legal custody rights. This becomes critically important if the relationship ends, as the non-adoptive parent may have no legal rights to the child they helped raise.
Child Support Obligations
Child support calculations follow the same guidelines for same-sex and opposite-sex couples. Courts use North Dakota's child support guidelines based on income of both parents, number of children, healthcare costs, childcare expenses, and parenting time arrangements. Biological relationship to the child doesn't eliminate support obligations when legal parentage has been established through marriage or adoption.
Spousal Support in Same-Sex Divorces
Spousal support (alimony) can be complicated in LGBT divorces when couples lived together for many years before laws allowed them to marry legally. Generally, the longer the marriage, the more likely courts will award spousal support to a spouse who needs it, as long as the other spouse has ability to pay.
Duration of Relationship Considerations
What happens when a relationship lasted much longer than the legal marriage? Judges have significant leeway in spousal support decisions. Some judges add additional unmarried years to the length of legal marriage before deciding spousal support amounts and duration. Others might not consider any relationship outside of legal marriage.
North Dakota law allows judges to consider any circumstances they consider relevant to spousal support issues. However, this doesn't necessarily mean that lengthy premarital cohabitation requires a finding of long-term marriage. Outcomes depend heavily on how effectively attorneys present evidence of the relationship's actual duration and interdependence.
Adoption Rights for LGBTQ Families
Gay adoption is legal in North Dakota. Single or married adults may petition for adoption regardless of gender and sexual orientation. However, some North Dakota laws relating to child-placing agencies can result in discriminatory practices. North Dakota law expressly allows private adoption organizations to discriminate against LGBT individuals or couples seeking to adopt children if such discrimination is based on sincerely held religious belief.
This makes it important for LGBTQ couples to work with experienced law firms that support LGBTQ rights and can help navigate potential discrimination during adoption processes.
Assisted Reproduction and Surrogacy
Lesbian couples have access to assisted reproduction services such as in vitro fertilization. North Dakota law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, irrespective of the marital status of the parents.
North Dakota law explicitly permits gestational surrogacy and declares that a child born to a gestational surrogate is the child of the intended parents, whether same-sex or different-sex, for all intents and purposes. Traditional surrogacy is prohibited regardless of sexual orientation.
Birth Certificates for Same-Sex Parents
Birth certificates in North Dakota now include two "parent" lines instead of a "mother" line and a "father" line. This change accommodates same-sex parents and ensures both parents are properly listed on their child's birth certificate from the beginning.
Working with LGBTQ-Friendly Family Law Attorneys
When facing divorce or other family law matters, LGBTQ couples benefit from working with attorneys who understand the unique legal challenges they face. Experienced family law attorneys familiar with same-sex divorce can navigate outdated laws and court practices relative to marriage, divorce, child custody, and adoption.
A knowledgeable law firm provides compassionate legal guidance while protecting your rights throughout the process. Attorneys experienced with LGBTQ family law understand how to present evidence about pre-marriage relationships, argue for fair property division considering the full relationship duration, establish and protect parental rights, and address custody issues involving children born during same-sex marriages.
Settlement Agreements and Mediation
Same-sex couples can avoid uncertainties of judicial decisions by working together to reach marital settlement agreements. Resolving issues through negotiation rather than litigation lowers divorce costs and gives couples more control over outcomes.
If reaching complete agreement proves difficult, divorce mediation can help. A neutral mediator guides couples through identifying issues and developing solutions that work for both parties. Successful mediation allows couples to file uncontested divorces, saving time and money while reducing conflict.
North Dakota LGBT divorce law ensures same-sex couples have the same rights and protections as opposite-sex couples following marriage equality established by the Supreme Court. While LGBTQ couples face unique legal challenges related to pre-marriage relationships, property division for assets acquired before marriage became legal, child custody when only one parent has biological ties, and spousal support calculations for long-term relationships that couldn't be legally recognized, experienced family law attorneys help navigate these complexities. Whether addressing property division, child support, child custody, or other family law matters, same-sex couples in North Dakota deserve respectful, compassionate legal representation that protects their rights and helps them achieve fair outcomes in their divorce cases.