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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