Judical Code

Section 5. Division of property upon divorce.

a. Marital property.

If no valid antenuptial contract to the contrary exists between the spouses, the marital property of the spouses is to be divided equitably upon divorce. The Tribal Court shall consider the length of the marriage; the contributions, financial and non-financial of both spouses; the standard of living to which each spouse has become accustomed; the financial needs of each spouse; and any other factor the Court finds appropriate. The Tribal Court shall not consider the misconduct of either spouse when making its determination.

b. Separate property.

If no valid antenuptial contract to the contrary exists between the spouses, the separate property of each of the spouses remains the property of the respective spouse. Separate property of a spouse may be given to the other spouse only to prevent unfair hardship.

c. Untraceable property.

If no valid antenuptial contract to the contrary exists between the spouses, property which cannot be traced as separate property of one of the spouses is considered marital property for the purpose of division of property between the spouses.

d. Professional degrees.

If no valid antenuptial contract to the contrary exists between the spouses, professional degrees earned by one spouse while the other spouse supported him or her are not marital property, but the Tribal Court shall consider such contributions in its equitable distribution of the marital property.

e. Per capita payments to tribal members.

Per capita payments from the Prairie Island Mdewakanton Dakota Community to its eligible members are the separate property of the person to whom they are issued. Per capita payments shall not be awarded pursuant to the hardship exception of subsection (b) of this Section (5).

f. Pensions.

If no valid antenuptial contract to the contrary exists, pension plan benefits or rights in the form of future pension plan payments:

(1) Are payable only to the extent of the amount of the pension plan benefit payable under the terms of the plan;

(2) Are not payable for a period that exceeds the time that pension plan benefits are payable to the pension plan benefit recipient;

(3) Are 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 benefit 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, property division may not commence until the public plan member submits a valid application for a public pension plan benefit and the benefit becomes payable.

All divisions of real and personal property provided by this Section (5) shall be final, and may be revoked or modified only where the Court finds the existence of one of the following:

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Prairie Island Mdewakanton Dakota Community Rules of Civil Procedure.

(3) Fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;

(5) The judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.

A motion for modification must be made within a reasonable time, and for a reason under clause (1), (2), or (3), not more than one year after the judgment and decree, order, or proceeding was entered or taken. A motion under this subsection does not affect the finality of a judgment and decree or order or suspend its operation. This subsection does not limit the power of the Tribal Court to entertain an independent action to relieve a party from a judgment and decree, order, or proceeding or to grant relief to a party not actually personally notified as provided in the Prairie Island Mdewakanton Dakota Community Rules of Civil Procedure, or to set aside a judgment for fraud upon the Court.