Kellington & Oster, PC FAQ
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Frequently Asked Questions About Legal Matters
- I received a summons and complaint. What do I do?
If you receive a summon and complaint, it is always in your best interests to consult with a licensed attorney who knows the laws and can help you through the complicated legal process. There may be complicated legal elements and procedures associated with your particular action. An attorney can help you proceed in responding to the summons and complaints and explain the next steps to you.
When you receive a summons and complaint, the first thing you should do is write down the date you received the documents and then carefully read both documents. It is important to remember the day you receive the documents as you must prepare and file a response to the summons and complaint within 21 calendar days after you receive them. (N.D.R.Civ.P. Rule 12).
- Do I have to go to Court?
The answer to this question varies on a case by case basis. If you have been served a document and it appears that there is a date and time for a court hearing or trial, then the answer is yes. If you have received a document like this, it is in your best interests to retain an attorney and to appear at the date, time, and place specified on the document.
However, if you are looking to start an action or have recently been served a summons and complaint, you may not have to appear in court. The reason for this is that most cases settle by the parties’ mutual agreement before they ever go to trial.
- How do I get a restraining order?
In order to obtain a restraining order against someone, you’ll need to file a petition with the court. It is always in your best interests to retain an attorney to assist you with your specific legal needs, however you can do this on your own at your local courthouse. The clerks will provide you with all the documents needed to start the action and they may assist you in filling them out. If a Judge finds your allegations present an immediate and present threat of danger of abuse or domestic violence, the Judge will sign a temporary Restraining Order and you will receive a Notice of Hearing within 14 days. You must appear at this hearing and be sure to bring any witnesses with you. At the hearing the Judge will decide if there’s evidence of actual or imminent abuse or violence and determine whether the Order should remain in place and for what length of time. Although you can go through this process on your own, you will be expected to abide by the same rules and standards as a licensed attorney. As such, it is always in your best interests to consult with an attorney for all of your legal needs.In order to obtain a restraining order against someone, you’ll need to file a petition with the court. It is always in your best interests to retain an attorney to assist you with your specific legal needs, however you can do this on your own at your local courthouse. The clerks will provide you with all the documents needed to start the action and they may assist you in filling them out. If a Judge finds your allegations present an immediate and present threat of danger of abuse or domestic violence, the Judge will sign a temporary Restraining Order and you will receive a Notice of Hearing within 14 days. You must appear at this hearing and be sure to bring any witnesses with you. At the hearing the Judge will decide if there’s evidence of actual or imminent abuse or violence and determine whether the Order should remain in place and for what length of time. Although you can go through this process on your own, you will be expected to abide by the same rules and standards as a licensed attorney. As such, it is always in your best interests to consult with an attorney for all of your legal needs.
- Can I appeal the Court’s decision?
In North Dakota, you can appeal a district court’s order or judgment in a civil action up to 60 days after notice of entry of the order or judgment. In some circumstances, the supreme court may extend the time to appeal up to 90 days after notice of entry of order or judgment if a party moves to extend the 60 day deadline and good cause is shown. This period of time differs for juvenile and criminal cases. If you’re unsure if you can appeal your case, you should contact a licensed attorney to assist you with your individual legal needs.
- What is a conflicts check?
A conflicts check is a routine check for any conflicts of interest that all law firms must do before you can speak with an attorney. Attorneys are ethically required to run these checks to make sure they do not have a conflict of interest with you or your case. Conflicts checks are generally quick, and an attorney or one of their assistants can usually conduct one in less than 5 minutes while on the phone with you. In conducting one of these checks, an attorney or assistant will ask for your full name and any aliases and for the full name and any aliases of the person you wish to sue or who is suing you.
- Will I need to provide a deposit or retainer for services?
Yes. Attorneys rarely work for free or on a contingency basis. At Kellington & Oster, P.C., our attorneys will ask for a retainer in return for their services. A retainer is a fee you pay upfront for an attorney’s services and is like a down payment. A paid retainer will go into a trust account and as work is done on your case, the charges for that work will be withdrawn from that account as payment for the work done. The amount our attorneys will ask for to retain them varies on a case by case basis. In some cases, the initial retainer may cover the cost of your entire case. However, in most cases, additional retainers will be requested as work is completed on your case and the initial one depletes. Any funds leftover from your retainer will be refunded to you upon completion of your legal matter.
- Can I expect to receive some sort of bill from my law firm for the fees incurred?
Of course! Attorneys usually keep a detailed record of all work done in your case as well as any additional costs such as filing fees. At Kellington & Oster, P.C., you will receive monthly billing statements that detail all work that has been done in your case as well as any extra fees and costs incurred. Your statement will include a list of work consisting of things like the drafting of documents, telephone calls, office visits, and filing fees.
Frequently Asked Questions on Divorce
- What are the legal grounds for obtaining a divorce?
In North Dakota, there are several grounds on which the court may grant a divorce. These include adultery, extreme cruelty, willful desertion, willful neglect, abuse of alcohol or controlled substances, conviction of a felony, and irreconcilable differences (see N.D.C.C. § 14-05-03). The most commonly used ground for divorce inNorth Dakota is irreconcilable differences. The reason for this is that the person who files for divorce has the burden of proving the grounds for obtaining the divorce. In other words, the person requesting the divorce must prove one of the above grounds and the easiest one to prove is irreconcilable differences.
- I want a divorce, but my spouse says they won’t sign any paperwork. Can I still get a divorce?
Absolutely! Both parties do not need to agree to obtain a divorce, nor do both parties need to sign paperwork. A judge may grant a divorce judgment without the consent of one of the parties.
- How long will my divorce take?
There is no definite answer to this question as it varies on a case by case basis. No two cases are the same. Likewise, no two cases last the same amount of time. If both parties agree to the terms of their divorce, it could take as little as a month. For more complicated cases where a significant amount of property is disputed and/or custody is disputed, it can take years to be finalized.
- My spouse cheated on me / spent all of our money / went to prison / has a drug or alcohol problem. It should be easy to win my case since my spouse did all these terrible things, right?
No. In North Dakota you do not need to prove “fault” of one party to obtain a divorce. All that needs to be proven is that you are no longer compatible with one another and that you will not reconcile (this ground for divorce is called irreconcilable differences).
- Can I get spousal support?
Yes, spousal support is determined on a case-by-case basis. In North Dakota, the court considers the circumstances of the parties when determining whether or not spousal support will be owed by one party to the other. Unless otherwise agreed to between the parties, spousal support terminates upon the remarriage of the person receiving spousal support or upon order of the court after a showing that the person receiving support has been cohabiting with another individual (in a relationship analogous to marriage)for one year or more. (N.D.C.C. § 14-05-24.1).
- Will an affair influence custody arrangements in my divorce?
Not necessarily. In NorthDakota, the court uses 13 “best interest” factors in consideration of custody/residential responsibility determinations. Some of these factors include:
(f) The moral fitness of the parents, as that fitness impacts the child;
(k) The interaction and inter-relationship, or the potential for interaction and inter-relationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of the physical harm, bodily injury, or assault, on other persons; and
(m) Any other factors considered by the court to be relevant to aparticular parental rights and responsibilities dispute.
These are just a few of the many factors the court may consider when making a custody determination and will never be the sole factors in making a custody determination. Courts place the most weight on factors directly affecting the physical, mental, and emotional health of the children. An affair might not affect the children and their best interests, nor might it affect a parent’s ability to provide the proper stability and care for a child.
- Who gets my retirement in a divorce?
In divorce actions, unless you come to come to an agreement about retirement accounts or have a prenuptial agreement stating otherwise, the Judge will consider the retirement account as part of the marital property and it will be considered for an equitable distribution between you and your spouse. This doesn’t necessarily mean that it will be split equally between you and your spouse. In some cases, both parties keep their own retirement accounts in each of their own names. An “equitable distribution” is simply what the court deems to be a fair and just split of all marital property.
- What happens to my business in a divorce?
Business division can be a complicated issue. If you and your spouse can agree to the division of the business or you have a prenuptial agreement regarding the business, then division can be fairly easy. However, if you do not agree and you do not have a prenuptial agreement, then there are many factors the court considers for the distribution of marital assets. The court will split marital assets and property in a way that it deems just and equitable. For answers to specific questions about your individual business and legal needs, you should consult with a licensed attorney.
- Who determines how assets are divided?
In divorce actions, unless you and your spouse come to an agreement about marital assets or you have a prenuptial agreement about division of property, the Judge determines what an equitable distribution of property is. This doesn’t necessarily mean that assets will be split equally between you and your spouse. An “equitable distribution” is simply what the court deems to be a fair and just split of all marital assets and property. The court considers a number of factors for such a distribution. For specific questions about your individual legal needs, you should consult with a licensed attorney.
- Will I be able to change back to my former name?
Yes. Changing back to your former name can be a simple process if you do it at the outset of your divorce. You can request to have this provision included in your final divorce decree and then you will be able to use that order to have your name formally changed back. If you do not have this provision included in the final order, you may have to submit additional documents to the court for a name change.
Frequently Asked Questions on Child Custody
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How do courts determine who gets custody of children?
In the state of North Dakota, the court considers several “best interest” factors when determining parental rights and responsibilities. North Dakota has 13 best interest factors that the court uses in consideration of the welfare of a child. (see N.D.C.C. § 14-09-06.2). No one factor is most important as the court will weigh all of the evidence presented that relate to these factors to make a determination in the child’s best interest.
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Mother and father live in different states, where do I file for custody?
In most jurisdictions, you would file in the state where the child has resided for at least six months before filing for custody.
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Can my child decide which parent he or she wants to live with?
Ultimately, where the child resides is up to the judge unless the parents can agree. In North Dakota, judges may consider the preference of a child in considering factors affecting the best interests and welfare pertaining to child custody/residential responsibility. However, the preference of the child does not guarantee where the child will live and which parent will be awarded custody. Preference of the child is one of many factors that a judge may consider. In considering a child’s preference, a judge will also consider the child’s maturity and whether the child’s preference is based on improper influences such as parental pressure. (see N.D.C.C. § 14-09-06.2(1)(i)).
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My child wants to talk to the judge. Can I bring him or her to court? Can they write a letter to the judge?
In most cases, yes, although the court does not guarantee the child a right to testify. The preference of the child is one of the factors the court will weigh in consideration of the determination of custody or residential responsibility. If both parents agree on a child’s testimony, they may jointly file a written request with the court for the child to testify. If both parents do not agree on a child’s testimony, either parent may file a motion requesting permission for the child to testify. In considering a child’s testimony for custodial preference, the Court will assess whether the child is of sufficient intelligence, understanding, and experience to express their preference (see Reineke v. Reineke, 2003 ND 167, 670 N.W.2d 841)(see also N.D.C.C. § 14-09-06.2(1)(i)). The court will generally give more weight to a child’s testimony as they grow older (see Clark v. Clark, 2006 ND 182, ¶12, 721 N.W.2d 6).
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When can I change my parenting plan?
In North Dakota, the court generally will not allow modification of a parenting plan earlier than two years after the date of entry of the parenting plan. However, the court may sometimes modify a parenting plan before two years pass if the parents prepare and file a signed agreement with the court or if the court finds a significant change in circumstances. These changes in circumstance can include persistent denial or interference with visitation or parenting time, the child is in an environment that may endanger their physical or emotional health or development, or the custody/residential responsibility of the child has changed to the other parent for longer than six months. (see N.D.C.C. § 14-09-06.6).
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Who gets to claim the child as a dependent on their taxes?
Unless the parties can come to an agreement about tax dependency, the judge will make a determination on which parent will claim the child for income tax purposes each year (N.D.C.C. § 14-09-09.37). No two cases are alike. A judge may determine that the parents are to alternate claiming the child every other year or the judge may grant one parent the right to claim the child each and every year. In most cases, the parent having the child more than fifty percent of the time is granted the right to claim the child for federal and state income tax purposes.
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How is child support determined?
The department of human services has established guidelines to assist courts in determining the amount a parent is expected to contribute for the support of a child. These guidelines consider gross income and other available resources. They authorize a deduction to determine net income, specify circumstances for reducing support due to hardship, and consider extended periods of time a child spends with the parent owing the support. (see N.D.C.C. § 14-09-09.7) (see also N.D. Admin. Code. § 75-02-04.1).
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If I have joint custody, doesn’t that mean I don’t have to pay child support?
In most cases where the parents share joint custody/residential responsibility of the child, the state will calculate a child support obligation for both parents and subtract the lesser amount from the greater amount. The parent with the greater obligation will then owe the difference between the two amounts to the other parent. (see N.D. Admin. Code § 75-02-04.1-08.2).
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What if a parent does not pay their court-ordered child support?
In North Dakota, if a parent does not pay their monthly child support obligation on time, interest may be accrued (see N.D.C.C. § 14-09-08.19). That parent may be deemed in contempt of court and be subject to certain court-ordered sanctions (see N.D.C.C. ch.27-10). The court may order a person with past due support to establish a payment plan with the child support agency, to participate in community service, and participate in treatment for mental illness or drug or alcohol dependency. (see N.D.C.C. § 14-09-08.1-05.1). In a case where the parent owing support falls behind on payments and owes more than three times the monthly support amount, the court may withhold or suspend that parent’s occupational, professional, and recreational licenses. This may include: any certificate/permit/license issued by a professional board to engage in an occupation or profession, any certificate/permit/license issued by the game and fish department to engage in recreational activities (this includes game tags), and suspension of license to operate a motor vehicle (see N.D.C.C. §§ 14-08.1-06 and -07, and 50-09-08.6). Any parent who owes an amount greater than two times their monthly obligation or $2,000 and does not have an established payment plan with the child support agency will have their name put on the North Dakota child support arrears registry. The state agency may report the amount of past due support to credit bureaus and may secure assets to satisfy a past-due support obligation (see N.D.C.C. §§ 50-09-02.7 to -08.6).
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Do grandparents have visitation rights to their grandchildren?
Yes, in the state of North Dakota grandparents may be granted reasonable visitation with their grandchildren or great-grandchildren if the district court determines that the visitation would be in the best interests of the children and does not interfere with the parent-child relationship. (see N.D.C.C. § 14-09-05.1).
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