Getting a Divorce in South Dakota? Divorce Law Cheat Sheet for the State of South Dakota
1. What are the residency requirements for filing for divorce in South Dakota?
You must be a resident of South Dakota or stationed in the state as a member of the armed services at the time that you file. You can file in the county in which you or your spouse lives.
2. Does South Dakota have a waiting period?
Yes. The court will not hear your case until at least 60 days after you file, though it may begin to gather information through depositions and examinations.If you are filing based on irreconcilable difference but the hearing indicates there’s a reasonable chance you and your spouse might get back together, the court might continue your case for as long as 30 days before ruling on your divorce.
3. Does the state have grounds for divorce?
Yes. In South Dakota, you can file for divorce on these grounds:
- Adultery, which the state defines as voluntary sex between a married person and a member of the opposite sex to whom he or she is not married.
- Extreme cruelty, which might be mental suffering or physical injury.
- Willful desertion, which can be mean several things: refusing to have sex with your spouse when health is not an issue; refusing to live with your spouse; persuading your spouse to leave home and, while he or she is gone, moving out; or refusing to reconcile after separation. Your spouse must have been gone for at least a year to file based on willful desertion.
- Willful neglect, when your spouse refuses to contribute toward the basic necessities. The situation must have continued for at least a year to file based on willful neglect.
- Habitual intemperance, meaning your spouse drinks enough to be unable to function. The situation must have continued for at least a year to file based on habitual intemperance.
- Conviction of a felony.
- Irreconcilable differences, which means the court finds clear reasons to end your marriage.
- Chronic mental illness also may be a ground for divorce. If your spouse suffers from incurable, chronic mania or dementia and has been in a mental institution for five years or more, the court may grant a divorce.
The court will deny your divorce if it finds any hint of:
- Connivance, which means you allowed your spouse to commit one of the acts above so that you could get a divorce.
- Collusion, meaning you and your spouse agreed to commit or make it appear that you committed one of the acts above to get a divorce.
- Condonation, which means you knew that your spouse committed one of the acts above; you forgave him or her; and you resumed your marital relationship.
- Lapse of time, meaning there was such a delay between the action and your filing that it implies connivance, collusion or condonation.
4. How does South Dakota determine the division of property?
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you.The court will divide your property in whatever way seems equitable, or fair, regardless of to whom the property belongs or whose name is on the title. It will weigh you and your spouse’s circumstances, but it will not consider who is at fault in your divorce unless that’s relevant to how your property was acquired during your marriage.
5. Does South Dakota require mediation before a divorce is granted?
Mediation is not always a requirement, though the court may order it in your case if you and your spouse disagree over child custody or visitation (unless one of you has been convicted of or has a history of domestic abuse or assault).
6. How does the state determine child custody?
Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in and other biggies.
Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.
The court will seek whatever arrangement is in the best interest of your child. It will take into consideration your child’s preference, if the court considers him or her mature enough to express a preference.The court will not take into account who was at fault in your divorce unless it’s relevant to your abilities as a parent.
The South Dakota Supreme Court has set guidelines for minimum non-custodial parenting time. These guidelines address frequency and time for visitation; hours or days of visitation; definitions for weekends, holidays, birthdays and other special occasions; and times for summer visitation. Your child’s age and circumstances are factored into the final decision.
The court presumes it would not be in your child’s best interest to award visitation to a parent who has been convicted of or has a history of domestic abuse or assault, or has been convicted of the death of the other parent.
The court may award visitation to your child’s grandparents or great-grandparents if it finds that would be in your child’s best interest, as long as visitation would not interfere with parent-child relationships.
7. How does the state calculate child support?
South Dakota determines child support according to a set of state guidelines. The monthly support amount is based on you and your spouse’s combined monthly net incomes. That amount is then divided between the two of you according to what percentage of the total you earn.The court assumes this amount is appropriate. But it will take into account the contribution of a third party to you or your spouse’s income if the guidelines result in a real hardship for one of you. It also will weigh:
- Whether the support obligation is greater than 50 percent of the paying parent’s income.
- Any special health or education expenses necessary for your child.
- Any agreement between you and your spouse for extra support for your child.
- Whether you or your spouse has to support other children.
Your support order also may depend on your visitation arrangement. If your child spends 10 or more days a month with the paying parent and the days of visitation are specified in your court order, the court may reduce the child support obligation.
The court also will modify support if you and your spouse share responsibility for your child, meaning he or she spends at least 120 days a year in each of your homes, and you and your spouse have agreed in writing to share the responsibilities and expenses of parenting.
If you and your spouse have more than one child, and you each have primary physical custody of at least one of your children, support is figured separately for each situation, and the parent with the greater obligation pays the difference to the other.
If travel costs for visitation are substantial, the court may make a special allocation for those costs, taking into consideration you and your spouse’s circumstances as well as which parent moved and why.
The cost of health insurance is figured in addition to the basic support amount. Any additional uninsured medical costs, including optometric, dental, orthodontic, counseling or other health care costs greater than $250 a year will be shared between you and your spouse based on your proportionate incomes. Work-related child care expenses also will be shared between you and your spouse.
If you and your spouse don’t have the income to meet your child’s needs, the court will look at your assets, including savings and life insurance, and your abilities to borrow money.
8. How does the state determine and calculate alimony?
Alimony, also known as support, is not always part of a divorce case, though you or your spouse may ask the court for it. In deciding whether to award you alimony, the court will consider these specific factors:
- How long you were married.
- You and your spouse’s financial resources.
- The effect alimony would have on you and your spouse’s finances.
- You and your spouse’s ages and health.
- Whether one of you was at fault in your divorce.
9. Is there a waiting period before remarriage in South Dakota?
No, you are free to remarry after the court delivers the final judgment ending your marriage.
FOR MORE INFORMATION:
You can see South Dakota’s state statutes, here.
South Dakota offers an online child support calculator, here.
The South Dakota Department of Social Services’ Child Support Division is online, here.
Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.
