RULE 8.5 DOMESTIC RELATIONS SUMMARY PROCEEDING
(a) Definition and Application.
(1) A summary proceeding may be used by parties to settle a
controversy, dispose of a case,
or conduct a trial
where when a party seeks an order, judgment,
or amended judgment,
otherwise in accordance with chapters under N.D.C.C. chs.
14-04, 14-05, and 14-09 , NDCC.
(2) A summary proceeding may be used when the combined net assets
of the parties do not
exceed a fair market value of
twenty thousand dollars $50,000,
exclusive of the homestead,
as defined in section under N.D.C.C. §
47-18-01 , NDCC.
(b) Beginning of Action - Petition - Summons - Plaintiff's Financial
Affidavit. An action
filed under this rule begins when any person signs and files with the court a petition and
financial affidavit, and serves the petition and financial affidavit on the defendant along with
a summons and order for appearance setting a hearing. The initial hearing must be held not
10 14 days, nor more than 40 days after service of the
order by the plaintiff on the
(c) Answer - Defendant's Financial Affidavit - Further Relief. The
serve and file an answer and financial affidavit at least 2 days before the initial hearing, but
no later than 20 21 days after service of the order for
appearance, or the defendant shall must
be considered in default. The defendant may set forth any new matter in the answer and
request further relief.
(d) Case Not Suitable for Disposition by Summary Proceeding. Either
party may elect to
use a non-summary proceeding, without a showing of cause, by filing a notice of election no
15 21 days before the final hearing. If the court
decides, based upon the complexity
of factual or legal issues, at any stage of the proceeding that the case may not be fairly
disposed of under this rule, it may order that the action be decided by the use of a
(e) Hearing Procedures.
(1) Any hearing of the action must be informal. The court must conduct the hearings and may make its own inquiry during the hearings. The hearings must be of record and all testimony must be under oath or affirmation. A trial by jury is not permitted and attorneys may participate. Attorney's fees and costs may be assessed as provided by law. The rules of evidence do not apply to a summary proceeding.
(2) The court
shall must hold the
initial hearing with both parties present. No interim order
may be issued except upon on notice and
hearing, unless the court specifically finds
exceptional circumstances as set forth in Rule 8.2 , NDROC. No ex parte
interim order may
be issued, unless the movant moving party executes
an affidavit setting forth specific facts
justifying the issuance of the order. A restraining and eviction order may not be issued ex
parte, unless the movant also appears personally and good cause is shown for issuance
The provisions which may be included in an ex parte interim order are temporary parental rights and responsibilities, parenting time, support and other appropriate expenses, use of real or personal property, restraining and eviction.
A hearing must be scheduled within 14 days of the issuance of the
interim order. The party
obtaining the ex parte interim order must secure a hearing date and serve the interim order
and the order for appearance on the
adverse opposing party.
The initial hearing, whether in response to an ex parte interim order or
otherwise, must be
conducted by the court to afford such temporary relief to the parties and the minor children
as provided in Rule 8.2(b)
(3) The court
shall must schedule a
final hearing within 60 days after the initial hearing to
decide the issues of law and fact. The hearing may be continued as necessary. The court may
utilize any services for the protection of persons and property that are available in a
non-summary proceeding, including appointment of a guardian ad litem, mediator, or referee.
The costs of services may be assessed as provided by law against the parties in the proportion
as the court determines just and equitable.
(4) There will be no formal discovery. At the initial hearing, or at any
subsequent time, the
shall must specify information to be furnished in addition
to the financial affidavit.
(5) Mediation, or other nonadversarial methods, should be used when appropriate as a means of resolving disputes.
(f) Judgment or Order. Based upon the evidence presented, the court
shall must issue a
written judgment or order indicating its decision in all cases begun under this rule. A
judgment or order may be entered without the appearance of either party at the final hearing.
The court may utilize all powers available to a district court which are not in conflict with
this rule. The court shall must make findings of fact and
conclusions of law in writing or
orally and recorded in open court.
(g) Appeal. An appeal to the
Supreme Court may be taken by a party as in
any civil action.
(h) Option. The presiding judge of each judicial district may designate one or more judges or referees who will use the proceeding.
Rule 8.5 was amended, effective August 1, 2009; March 1, 2011.
Rule 8.5 was made permanent, effective February 12, 2003.
Rule 8.5 was initially adopted, effective October 1, 1996, as a pilot project in two judicial districts. Subdivision (h) was amended, effective August 1, 2001, to permit the presiding judge of each judicial district to designate one or more judges or referees to use the proceeding.
Paragraph (a)(2) was amended, effective March 1, 2011, to increase the limit on combined net assets from $20,000 to $50,000.
Subdivision (b) was amended, effective March 1, 2011, to increase the time to hold the initial hearing from 10 to 14 days after service of the order of appearance.
Subdivision (c) was amended, effective March 1, 2011, to increase the time for the defendant to serve and file an answer and financial affidavit from 20 to 21 days after service of the order for appearance.
Subdivision (d) was amended, effective March 1, 2011, to change the time for a party to elect to use a non-summary proceeding from 15 to 21 days before the final hearing.
Sources: Joint Procedure Committee Minutes of September 23-24, 2010, page 25; April 29-30, 2010, page 26; May 21-22, 2009, pages 44-45; January 30-31, 2003; April 26-27, 2001, pages 6-8; September 28-29, 1995, pages 11-12.