The State Bar Association of North Dakota Fall 2013 Gavel Magazine | Page 16

FAMILY LAW
SECTION QUIZ

1. After they are married, William and
Marla decide to sign a “post-nuptial agreement.” William is represented by an attorney who drafted the agreement. Although
she knew she had the right to representation, Marla decides not to hire a lawyer,
and waived her right to do so. As part of
the document they both completed long
schedules outlining their income, assets
and debts. Both William and Marla sign
the document in the office of Jack’s attorney and their signatures are notarized and
witnessed. Assuming that the requirements
for procedural and substantive fairness are
satisfied, is the agreement otherwise valid?
a. No, because Marla was not represented
by an attorney.
b. No, because North Dakota law does
not recognize the validity of post-nuptial
agreements.
c. No, because the financial disclosures
were not verified by an independent accountant.
d. Yes.
ANSWER: d. Effective August 1, 2013
North Dakota adopted North Dakota Century Code Chapter 14-03.2, which provides
for a “marriage agreement” between a
husband and wife. That contract allows the
parties to address issues relating to spousal
support, rights and responsibilities as to
property and debts and award of attorney
fees and costs. The statue provides that each
party must have reasonable time to decide
whether or not to retain a lawyer and that a
specific waiver be included in the agreement
indicating what rights you may be giving up
by signing the agreement.
2. David and Kate have been married for
four years. Kate comes to see you about a
possible divorce. You routinely check social
media for public information about your
clients and your clients’ spouses. David has
a private profile on Facebook. Should you
have your assistant attempt to add him as a
friend so that you can see what he has been
posting about your client?
a. Yes.

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b. No.
c. If Kate authorizes it.
d. Yes, but you can’t use anything you
find out in court.
ANSWER: b. Rule 4.2 of the North Dakota
Rules of Professional Conduct prohibits an
attorney from communicating with a person
who is known to be represented by another
lawyer without that lawyer’s consent or
court order. A friend request is such a communication. Even if the party is unrepresented, the request may violate Rule 4.3, which
requires the attorney to clearly indicate the
attorney’s role and lack of impartiality.
3. Jack and Diane have a 10-year-old
daughter They were divorced over two
years ago after a three day trial. An order
was issued granting joint decision making
and primary residential responsibility to
Diane. The order gave Jack parenting time
one night per week and every other weekend. Now that the child is older, she wants
to spend more time with Jack, who wants
to spend more time with her as well. If Jack
brings a motion to modify the parenting
time schedule, what standard will the court
apply?
a. Endangerment.
b. Best interests of the child.
c. Material change in circumstances
d. Modified best interest standard, with
emphasis on child’s preference.
ANSWER: c. The district court has continuing jurisdiction to modify parenting
time after an initial judgment is entered.
N.D.C.C. § 14-05-22; see also Prchal v.
Prchal, 2011 ND 62, ¶ 10, 795 N.W.2d
693. Modifications of parenting time are
governed by N.D.C.C. § 14-05-22(2) and
standards set forth in caselaw. Prchal, at ¶
11. “’To modify parenting time, the moving
party must demonstrate a material change
in circumstances has occurred since entry of
the previous parenting time order and that
the modification is in the best interests of the
child.’” Id. (quoting Dufner v. Trottier, 2010
ND 31, ¶ 6, 778 N.W.2d 586). A “material
change in circumstances” for purposes of

modifying parenting time is an important
new fact that was unknown at the time of
the prior custody decree or parenting time
order. Wolt v. Wolt, 2011 ND 170, ¶ 19, 803
N.W.2d 534.
4. Bill and Hillary were divorced five years
ago. They share joint residential responsibility of their daughter, Chelsea, who is 14,
but the parenting time division is more like
60/40, with Hillary having more parenting time. The decree awards Bill the child
dependency exemption in even years and
the exemption to Hillary in odd years. Bill
was ordered to provide health insurance
coverage for Chelsea, but he was laid off 18
months ago and his COBRA just ran out.
Hillary comes to you for advice. What can
you tell her about how the Federal Affordable Care Act will impact her given the
existing facts regarding Chelsea’s health
insurance?
a. Hillary may be subject to an IRS
penalty if she does not provide health
insurance for Chelsea through her employer, or through an insurance exchange
in odd years beginning 2015, regardless
of the fact that Bill is ordered to provide
the coverage.
b. Hillary may receive a subsidy for payment of Chelsea’s health insurance coverage, but only in odd years.
c. If Hillary wants to return to court to
have this straightened out, she may have
a hard time because the change in the law
is not a substantial change for purposes
of modification of these issu