FAMILY
RELATIONS CODE
CHAPTER
3
VOID
AND VOIDABLE MARRIAGES
Section 1. Void Marriages
(a) All
marriages which are prohibited by law on account of consanguinity,
meaning of close relation, or on account of either or both parties
being under the age established for marriage, or on account of either
party having a husband or wife still living, if solemnized, shall
be absolutely void, without any decree of divorce or other legal proceeding;
provided that, if any person whose husband or wife has been absent
for five (5) successive years, without being known to such person
to be living during that time, marriages during the lifetime of such
absent husband or wife, the marriage shall be void only from the time
that its nullity is duly adjudged.
Section
2. Voidable Marriages
A marriage
shall be declared voidable under the following circumstances:
(a) A
party lacked capacity to consent to the marriage at the time the marriage
was solemnized due to:
1.
a mental incapacity and the other party did not know of the incapacity;
or
2.
being under the influence of alcohol, drugs, or other incapacitating
substances; or
3.
because consent of either party was obtained by duress, force or
fraud.
(a)
A party lacks the physical capacity to consummate the marriage
and the other
party at the time of the marriage did not know of the incapacity.
(b) A
party was under the age of marriage.
CHAPTER
4
LEGAL
SEPARATION
Section
1. Effect of a Separation Agreement
(a) To
promote the friendly settlement of disputes between parties to a marriage,
the parties may enter into a written separation agreement containing
provisions for the disposition of any property owned by either of
them, maintenance of either of them, and support, custody and visitation
of their children.
(b) In
a proceeding for dissolution of marriage or for legal separation,
the terms of the separation agreement, except those providing for
the support, custody and visitation of children, are binding upon
the court unless it finds, after considering the economic circumstances
of the parties and any other relevant evidence produced by the parties,
on their own motion or on request by the court, that the separation
agreement is unfair.
(c) If
the court finds the separation agreement unfair as to disposition
of property or maintenance, it may request the parties submit a revised
separation agreement or make the order for the disposition of property
or maintenance.
(d) If
the court finds that the separation agreement is fair as to disposition
of property or maintenance, and that it is reasonable as to support,
custody and visitation of the children, the separation agreement shall
be set forth or incorporated by reference in the decree of dissolution
or legal separation and the parties shall be ordered to perform them.
If the separation agreement provides that its terms shall not be set
forth in the decree, the decree shall identify the separation agreement
as incorporated by reference and state that the court has found the
terms as to property disposition and maintenance not unfair and the
terms as to support, custody and visitation of children are reasonable.
(e) Terms
of the agreement set forth or incorporated by reference in the decree
are enforceable by all remedies available for enforcement of a judgment,
including contempt.
CHAPTER
5
ANNULMENT
Section
1. Action to Annul
When the
validity of a marriage is disputed for any of the causes mentioned in
Section 1 or 2 of Chapter 3 of the Family Relations code, either party,
may begin an action in the White Earth Tribal Court to annul the same.
In such action the complaint shall be filed and proceedings had thereon
as in actions for divorce and upon proof of the nullity of the marriage,
it shall be adjudged null and void.
Section
2. Insufficient Grounds for Annulment
(a) No
marriage shall be adjudged a nullity on the ground that one of the
parties was under the age of legal consent if it appears that the
parties had voluntarily lived together as husband and wife after having
attained such age;
(b) The
marriage of any insane person shall not be adjudged void after restoration
to reason, if it appears that the parties freely cohabited together
as husband and wife after such restoration.
CHAPTER
6
DIVORCE
Section
1. Grounds for Divorce
An irretrievable
breakdown is a finding that there is no reasonable prospect of reconciliation
that must be supported by sworn testimony of one of the parties.
(a) A
judge may, at the discretion of the court, require marriage counseling
before a declaration of irretrievable breakdown is made, however,
if there is a domestic abuse in the marriage, this may not be appropriate.
(b) A
judge may require the parties to go through mediation, which is a
process where a neutral third person assists and encourages parties
in conflict to reach a settlement of the dispute that is satisfactory
to both parties, unless domestic abuse is prevalent in the marital
relationship.
CHAPTER
7
PROCEDURE
FOR ANNULMENT AND DIVORCE
Section
1. Commencement of Action
(a) Any
person applying for annulment or divorce shall deposit with the clerk
of the White Earth Tribal Court, twenty-five dollars ($25.00) at the
time of the action; and in case the defendant files a cross-complaint
or answer, the clerk will require the defendant to pay into the court
a fee of twenty-five dollars ($25.00) also. The court has the discretion
to waive all or a portion of the filing fee if indigence is proven,
keeping in mind that no person shall be barred from the court because
of lack of funds.
(b) The
complaining party shall file with the clerk a verified complaint concisely
stating his or her cause of action and thereupon, the clerk shall
issue a summons in the name of the White Earth Tribal Court to the
defendant informing him or her of the pendency of the action and the
summons shall concisely state the grounds upon which annulment or
divorce has been requested.
Section
2. Requisites of the Complaint or Petition for Divorce or Annulment
(a) The
name and address of the petitioner, and whether the child support
or spousal maintenance is involved, the petitioner’s social security
number, and any other prior names.
(b) The
name and, if known, the address of the respondent, and where child
support or spousal maintenance in involved, the respondent’s
social security number, and any other prior names;
(c) The
place, including county, and date of the party’s marriage.
(d) The
name, social security number, age and date of birth of each living
minor or dependent child of the parties born before the marriage of
born or adopted after the marriage, and a reference to the expected
date of the birth of a child of the parties conceived during the marriage
but not yet born.
(e) Whether
or not a separate proceeding for dissolution is pending in a court
other than the White Earth Tribal Court.
(f) There
was an irretrievable breakdown of the marriage relationship.
(g) Any
temporary or permanent maintenance, child support, child custody,
disposition of property, attorney fees, costs, and disbursements applied
for, without setting forth amounts.
(h) Whether
an order for protection is in effect and, if so, the jurisdiction
in which it was entered.
(i) If
either party has a retirement or pension account, the name and address
of the agent along with the amount of each account.
Section
3. Service of Process
(a) Service
by mail can be commenced by mailing a copy of the summons and petition
to the person to be served by certified mail.
(b) Personal
service is made by delivering a copy of the summons and petition personally,
or by leaving a copy at the person’s residence with someone of
suitable age who is residing there.
(c) If
a personal service cannot be made then the service can be accomplished
through publication through the tribal, local, or other comparable
newspaper that would be seen by the party being served after the other
means of service were found to be unsuccessful by the White Earth
Tribal Court.
(d) An
affidavit of service needs to be filed with the court by the person
who accomplished the service. If the service was done by publication,
then the service is done by the publisher.
(e) The
defendant shall have thirty (30) days in which to answer the complaint
from the time of the completed service either personally, posting
or by mail.
Section
4. Response
The non-petitioning
spouse may file a response to the petition within thirty (30) days of
the receipt of the petition. Such response may state the background
facts, seek a division of property or custody of children that is different
from any proposed by petition or may counterclaim of there are other
relevant issues.
CHAPTER
8
COURT
PROCEDURES
Section
1. Hearing
(a) In
all divorce cases, the court shall order and hold a hearing, unless
the parties have agreed to all matters and issues pending in which
case the court shall have discretion to enter a decree without a hearing
if the court is convinced the stipulation is fair.
(b) The
hearing shall be held within a reasonable time after the date of the
petition is filed.
(1)
Where the custody of the children is an issue, the court has the
discretion to order a home study by an appropriate social worker
or other professional, to be completed prior to the hearing.
(c) At
the hearing, both spouses shall have the opportunity to testify, cross-examine
the other spouse and any witnesses, and present documentary evidence.
(d) Each
spouse may retain certified legal counsel or an advocate to be otherwise
represented in the proceeding.
(e) If
the defendant fails to appear and answer within the time required,
the case may be heard by the Judge at anytime thereafter, but if the
defendant answers the case, then a trial shall be scheduled on the
court calendar by the clerk.
(f) The
court shall make and enter findings of fact, conclusions of law, and
a decree; and the same shall be filed and recorded by the clerk and
two certified originals; shall be forwarded to both parties and/or
their attorneys or advocates.
Section
2. Default Judgment; Failure to Answer
(a) If
the respondent does not appear after the service is duly made and
proved, the court may hear and determine the proceeding as a default
matter.
(1)
default proceedings will be closely scrutinized by the court to
insure that the respondent’s intentions are not disregarded.
(2)
the excuse of mistake or neglect, when service has been properly
accomplished, shall not be grounds to vacate judgment.
Section
3. Judgment and Divorce of Annulment
Whenever
the marriage shall be declared void or dissolved, the White Earth Tribal
Court shall have the power to impose further judgment as follows:
(a) For
the future care and custody of the minor children of the marriage
as it may deem just and proper. No preference in custody will be given
to either parent based on gender;
(b) For
the recovery from the party not granted the care and custody of the
child(ren), such amount of money, to contribute to future care, medical
expenses, and education;
(c) For
future spousal maintenance for a reasonable amount of time deemed
just and proper;
(d) For
the approval of any property settlement between the parties or recovery
and delivery to each of the parties any of their personal property
in the possession or control of the other at the time of the judgment;
(e) For
the division or other disposition between the parties of the real
and personal property that is deemed fair and just;
(f) The
tribal court shall have authority to change the name of any persons
upon the petition of such persons or upon the petition of the parents
of the minor. The order granting such name change shall be kept as
a permanent record, and a copy of such order shall be filed with the
Clerk of Court.
Section
4. Setting Aside of Modifying Judgment
At any
time before a divorce judgment becomes final, the court or Judge, upon
complaint of either party, shall have the power to set aside, alter
or modify so much of the judgment as may provide for the appointment
of a trustee or trustees for the care and custody of minor child(ren),
or the support or education and for the maintenance of either party
to the action; provided, however, that said judgment shall be a final
judgment as to any installment or payments of money or payments of property
provided for therein which have accrued up to the time either party
shall file an action with the court to set the Judgment aside or alter
or modify the same.
Section
5. Temporary Hearings
If temporary
relief is desired, but no agreement between the parties can be reached,
either party may request by motion, and the court may grant, pending
the final disposition, a temporary order:
(1) for
the temporary custody and visitation rights of the minor children
of the parties;
(2) for
the temporary maintenance of either spouse;
(3) for
temporary child support of the children of the parties;
(4) to
award the temporary use and possession, exclusive or otherwise, of
the family home, furniture, household goods, automobiles, and other
property of the parties;
(5) to
restrain one or both parties from transferring, encumbering, concealing,
or disposing of property, except in the usual course of business or
for the necessities of life, and to account to the court for all such
transfers, encumbrances, dispositions, and expenditures made after
the temporary order has been served or communicated in an open court.
(6) to
exclude a party from the family home of the parties or from the home
of the other party;
(7) to
require one party or both parties to perform or not to perform such
additional acts as will facilitate the just and speedy disposition
of the proceedings or protect the parties or their children from physical
or emotional harm.
CHAPTER
9
CHILD
CUSTODY
Section
1. Custody Action
In any
action for annulment or divorce, the White Earth Tribal Court shall
have authority to determine the custody of any child of the marriage,
any child born out of wedlock, or any other child in the custody of
either party who are under the age of eighteen (18) years of age.
Section
2. Factors in Determining Custody
(a) When
joint legal or joint physical custody is sought, the court shall consider
the following relevant factors:
(1) the
ability of the parents to cooperate in the rearing of the child(ren);
(2) the
reasonable preference of the child if the child is of a sufficient
age;
(3) the
interaction and relationship of the child with a parent or parents,
siblings, and any other person who may significantly affect the child’s
best interests;
(4) the
ability of the child to have a stable, satisfactory living environment;
(5) the
permanence of the proposed custodial home;
(6) the
capacity and disposition of the parties to give the child love, affection,
guidance, and to continue educating and raising the child in the child’s
culture and religion, if any.
Section
3. Visitation Rights
(a) In
all divorce or annulment proceedings, subsequent to the commencement
of the action and continuing during the minority of the child, the
court may, upon the request of the non-custodial parent, grant such
rights as will enable the child and the non-custodial parent to maintain
such child to parent relationship as will be beneficial to the child.
(b) A
parent’s failure to pay support because of the parent’s
inability to do so shall not be sufficient cause for denial of visitation,
unless such inability is willful.
(c) The
custodial parent shall present the child for visitation by the non-custodial
parent, as such time as the court directs or was agreed upon.
(d) Proof
of an unwarranted denial of or interference with duly established
visitation may constitute contempt of court and may be cause for reversal
of custody.
(e) Supervised
visits may be ordered if warranted by the court.
Section
4. Guardian Ad Litem
At any
stage of the proceedings conducted under this code, the court may appoint
separate counsel or a spokesperson for the child, without affecting
the right to counsel of the parents, guardians or other legal custodians,
to act as guardian ad litem representing the child’s best interests.
Section
5. Stand-by Custodian
(a) A
Standby Custodian may be appointed by a designator. A designator is
defined as the person who has physical and/or legal custody of named
children.
(b) The
designator shall list his/her name, the children’s name, date
of birth and social security number.
(c) The
designator shall list the other parent with that parent’s name,
address, date of death, if applicable or date of termination of parental
rights.
(d) The
other parent shall be notified of the designation or petition of a
standby custodian. If unable to locate the other parent, the petitioner
may publish notice in a local newspaper.
(e) The
standby custodian is granted authority to act for 60 days following
the occurrence of the triggering event as co-custodian with the designator
or in the event of his/her death, as custodian of his/her children.
(f) The
designator may name an alternate standby custodian to assume temporary
custody if the named custodian is unable to fulfill their duties as
temporary custodian.
(g) The
custodial parent or designator shall list the “triggering event”
such as “my death” or such other triggering event. The custodial
parent shall be of sound mind.
(h) The
designation shall be signed by two (2) witnesses with their addresses
listed.
(i) The
standby custodian must accept the nomination as standby or temporary
custodian and must sign and date the designation document.
(j) The
standby custodian must file a petition with the court for continued
custody within 60 days of the triggering event
(k) The
designation must be filed with tribal court within 14 days of signing.
Tribal court may conduct a hearing on the designation of a standby
custodian within 14 days. If unable to have a hearing within 14 days,
the court may enter an ex-parte order if exigent circumstances warrant
it, i.e. imminent death of the designator (within 48 hours).
CHAPTER
10
CHILD
SUPPORT
Section
1 Child Support Factors
(a) In
a proceeding for dissolution of marriage, legal separation, maintenance,
or child support, the court may order either or both parents owing
a duty of support to a child, born to or adopted by the parents, to
pay an amount reasonable and necessary for his support, without regard
to marital misconduct, after considering all relevant factors, including:
(1)
the financial resources and needs of the child;
(2)
the financial resources and needs of the custodial parent;
(3)
the standard of living the child would have enjoyed had the marriage
not been dissolved;
(4)
the physical and emotional condition of the child, and the educational
needs;
(5)
the financial resources and needs of the non-custodial parent;
(6)
excessive or abnormal expenditures, destruction, concealment or
fraudulent disposition or community, joint tenancy, and other property
held in common.
Section
2. Child Support Guidelines
The court
shall enter an award for child support payments in accordance with the
provisions of this Section. The court may order either or both parents
owing a duty of support to a child to pay an amount of money, which
is reasonable or necessary for the child’s support. This Section
shall be limited to prospective child support payments calculated from
the filing date of the petition. The court shall derive a specific dollar
amount for child support by multiplying the obligor’s net income
by the percentage indicated in the following guidelines:
WHITE
EARTH TRIBAL COURT
CHILD
SUPPORT PAYMENT GUIDELINES
MONTHLY
PAYMENTS
| Pay
Net Monthly |
Number
of Children |
| |
1
|
2 |
3 |
4 |
5
|
6
|
7
or more |
|
$550
and Below
|
Order
based on the ability of the obligor to provide support
at these income levels, or at higher levels, if
the obligor has the earning ability.
|
| $551-600 |
16% |
19% |
22% |
25% |
28% |
30% |
32% |
| $601-650 |
17% |
21% |
24% |
27% |
29% |
32% |
34% |
| $651-700 |
18% |
22% |
25% |
28% |
31% |
34% |
36% |
| $701-750 |
19% |
23% |
27% |
30% |
33% |
36% |
38% |
| $751-800 |
20% |
24% |
28% |
31% |
35% |
38% |
40% |
| $801-850 |
21% |
25% |
29% |
33% |
36% |
40% |
42% |
| $851-900 |
22% |
27% |
31% |
34% |
38% |
41% |
44% |
| $901-950 |
23% |
28% |
32% |
36% |
40% |
43% |
46% |
| $951-1000 |
24% |
29% |
34% |
38% |
41% |
45% |
48% |
| $1001-5000 |
25% |
30% |
35% |
39% |
43% |
47% |
50% |
Section
3. Deviation from Guidelines
In addition
to the Child Support Guidelines, the court may take into consideration
the following facts in setting or modifying child support or in determining
whether to deviate from the guidelines:
(a) All
earnings, income, and resource of the parents, including real and
personal property;
(b) The
financial needs and resources, physical and emotional condition, and
educational needs of the child(ren) to be supported;
(c) Whether
or not the parents have separate households;
(d) Which
parent receives the income taxation dependency exemption and what
financial benefit the parent receives from it;
(e) The
parents’ debts owed to private creditors;
(f) The
non-custodial parent’s earning capacity based on past earnings
or lack of earnings.
Section
4. Court Findings on Child Support
(a) The
court shall make written findings concerning the amount of the obligor’s
income used as the basis for the guidelines calculation any evidentiary
factors affecting the determination of child support.
(b) If
the court deviates from the guidelines, the court shall make written
findings regarding the amount of support calculated under the guidelines,
the reason for the deviation, and how the deviation serves the best
interests of the child.
(c) If
the court finds that a parent is voluntarily unemployed or underemployed,
child support can be calculated based on a determination of imputed
income by showing:
(1)
it is temporary and will ultimately lead to an increase in income;
(2)
a bona fide career change outweighs the adverse effect of the parent’s
diminished income;
(3)
if the court is unable to determine or estimate the earning ability
of a parent, the court may calculate child support based on full-time
employment of forty (40) hours per week at the federal minimum wage;
(4)
if a parent is a recipient of public assistance or is physically
or mentally incapacitated, child support may be reserved.
Section
5. Child Support Modifications
(a) An
order for child support can be modified based on a cost of living
increase and the adjustment shall specify the cost-of living index
to be applied.
(b) The
court may order an employer or payor of funds to withhold from the
obligor’s income an additional amount equal to 20 percent of
the monthly child support or maintenance obligation until any arrearage
is paid.
(c) The
terms of a child support order can be modified by the party seeking
modification upon showing to the court substantial change in circumstances
of the party (s) since the date of the support order.
CHAPTER
11
DIVISION
OF PROPERTY
Section
1. Disposition of Property
Upon a
divorce or annulment, the court may make such disposition of the property
of the parties acquired during the marriage as shall appear just and
equitable, having regard to the nature and determination of the issues
in the case, the amount of alimony or support money, if any, awarded
in the judgment, the manner by which said property was acquired and
the persons paying or supplying the consideration therefore, the charges
or liens imposed to secure payment of alimony or support money, and
all the facts and circumstances of the case.
Section 2. Household Good, Furniture and Other Property
Upon a
divorce or annulment, the court may award to either spouse the household
goods and furniture of the parties acquired during the marriage, and
may also order and decree to either spouse such part of the real and
personal estate of the other not acquired during the marriage, not exceeding
in present value, one-half thereof, as it deems just and reasonable,
having regard to the amount of property decreed under Section 1 of this
Chapter, the amount of alimony and support money awarded, if any, the
character and situation of the parties, the nature and determination
of the issues, and all other circumstances of the case.
Section 3. Homestead
The court,
having due regard to all the circumstances and the custody of any child(ren)of
the parties, exclusive or otherwise, upon a final decree of divorce
or annulment, may award the homestead to either party for such a period
of time that may be determined by the court.
Section 4. Pension Plans
(a) The
division of marital property that represents pension plan benefits
or rights in the form of future pension plan payments:
(1)
is payable only to the extent of the amount of the pension plan
benefit payable under the terms of the plan;
(2)
is not payable for a period that exceeds the time that pension plan
benefits are payable to the pension plan benefit recipient;
(3)
is not payable in a lump sum amount from pension plan assets attributable
in any fashion to a spouse with the status of an active member,
deferred retiree, or recipient of a pension plan;
(4)
if the former spouse to whom the payments are to be made dies prior
to the end of the specified payment period with the right to any
remaining payments accruing to an estate or to more than one survivor,
is payable only to a trustee on behalf of the estate or the group
of survivors for subsequent apportionment by the trustee; and
(5)
in the case of public pension plan, benefits or rights, may not
commence until the public plan member submits a valid application
for a public pension plan benefit and the benefit becomes payable.
(b) The
individual retirement account plans may provide in its plan document,
if published and made generally available, for an alternative marital
property division or distribution of individual retirement account
plan assets. If an alternative division or distribution procedure
is provided, it applies in place of paragraph (a), clause (5).
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