South Dakota Divorce
Information and FAQ
This section contains selected divorce statutes, selections from
statutes and general guidelines for South Dakota. Some may not be
relevant to your case but are presented here as a general overview.
The selected statutes and portions of statutes set out below are not
intended to be an all-inclusive statement of the South Dakota
divorce statutes. Grounds Divorces may be granted for any of the
following seven (7) causes: (1) Adultery; (2) Extreme cruelty; (3)
Willful desertion; (4) Willful neglect; (5) Habitual intemperance
(i.e.- habitual drunkeness or drug addiction); (6) Conviction of
felony; (7) Irreconcilable differences (no-fault: only if agreed, or
on default)
*Chronic mental illness is a discretionary ground for divorce. In
case of incurable, chronic mania or dementia of either spouse having
existed for five years or more, while under confinement by order of
a court of record or of the Board of Mental Illness as provided by
law, the court may, in its discretion, grant a divorce. (25-4-18)
The only approved no-fault ground available to those seeking a
divorce is based on "irreconcilable differences" (an
irretrievable breakdown of the marriage). This ultimately means that
there is no reasonable hope that the marriage can continue. The
grounds of irreconcilable differences may be used only if both
parties agree to use it or if there is default. 25-4-2
Residency Residence requirements for divorce or separate
maintenance. The plaintiff in an action for divorce or separate
maintenance must, at the time the action is commenced, be a resident
of this state, or be stationed in this state while a member of the
armed services, and in order that each party be entitled to the
entry of a decree or judgment of divorce or separate maintenance,
that residence or military presence must be maintained until the
decree is entered. 25-4-30 Mediation After a motion for divorce is
filed a judge may determine that there is a chance of reconciliation
and may order mandatory mediation for the spouses. Also one of the
spouses may tell the court they think things can be worked out and
may ask the court to have a hearing to see if the marriage is truly
irretrievable. If the court concludes that there is a chance for the
marriage to be repaired and there are minor children, the court may
delay the proceedings for 30 days for an attempt at reconciliation.
Property division State statutes now provide for the
"equitable" distribution of the marital property of the
marriage at the time of the final divorce between the parties.
"Marital Property" is defined as all jointly owned
property and all other property, other than separate property,
acquired by either or both of the parties during the marriage and up
to the time of the final separation of the parties. "Separate
Property" is property owned by one party at the time of the
marriage or inherited property or gifts to one party from a third
person and maintained as separate property.
Where "Marital Property" and "Separate
Property" are mixed together or where "Separate
Property" is increased through the active efforts of either
party during the marriage, then such property may be classified as
"Part Marital" and "Part Separate" property. In
making its equitable distribution awards the courts are not only
authorized to make monetary awards to one of the parties, but may
also divide or order sold or transfer jointly owned marital property
to one of the parties.
The assignment of fault may make a difference in terms of a
court's final determination of the division of property. If one
party is determined to be at fault for the breakdown of the
marriage, then the court may award the other party more property.
25-4-44
Spousal Support ("Alimony") The fault of a spouse in
causing a divorce may not be a complete bar to obtaining spousal
support, but the cause of separation will be a factor that the court
will consider in determining whether or not to award spousal
support. Spousal support, when awarded, may be periodic and/or in a
lump sum, the amount of which depends upon such factors as the
respective ages, assets and earning potential of the parties and the
duration and history during the marriage. Spouse support is not
awarded to punish a guilty spouse but rather is to lessen the
financial impact of divorce on the other spouse. 25-4-41 Child
Custody In determining the custody of minor children, the court is
guided by one standard--the best interests of the child. Custody
will not be given to a parent as a reward or as punishment to the
guilty parent but rather to the one most adaptable to the task of
caring for the child and able to control and direct the child.
Factors the court considers include:
(1) The age of the parent and child, (2) The physical and mental
condition of the parent and child, (3) The relationship existing
between each parent and each child, (4) The needs of the child, (5)
The role played by each parent in the upbringing and caring for the
child, (6) The home where the child will live, and (7) The child's
wishes if the child is sufficiently competent to express an opinion.
The court will normally set visitation rights if the parents
cannot voluntarily agree upon satisfactory arrangements. 25-4-45
Child Support The court awards child support for the benefit of
the child, not as a punishment or reward to the adults. The court is
guided by the needs of the child and the ability of the supporting
parent or parents to pay. The use of the state Child Support
Guidelines provides an amount of child support that is presumed to
be correct, but the court may deviate from these guidelines in
appropriate circumstances. Settlement Agreement A settlement
agreement is a written contract between the parties that sets forth
their rights, duties and obligations that arise out of their
separation and divorce and may include such things as the division
of their property, spousal support, attorney's fees, custody of
their children and child support. Such agreements are encouraged
since they may amicably settle the rights of the husband and wife in
the estate and property of the other.
Name Change Restoration of former name to wife. Whenever a decree
of divorce is granted, the trial court may, in its discretion or
upon the application of either party by the terms of the decree,
restore to the woman her maiden name or the name she legally bore
prior to her marriage to the husband in the divorce suit. 25-4-47
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