State of South Dakota Family Law and Divorce Resource
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in South Dakota have the authority to manage the divorce proceedings, including spousal and child support payments, custodial rights of parents, and the division of community property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage. You can also visit the GotTrouble Divorce Resource to understand related divorce and family law topics more in-depth.
As of 2016, all states allow for “no-fault” divorce. Yet many courts still factor in the respective party’s past behavior when determining the division of community property, debts, custody, support, and related issues.
SAME-SEX DIVORCE UPDATE
On June 26, 2015, the U.S.U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
RESIDENCY AND FILING REQUIREMENTS
A divorce may be filed in the county in which either spouse resides. The defendant has a legal right to have the case transferred to the defendant’s county. There is also a 60 day waiting period that must elapse after the date of filing before the divorce will be granted.
GROUNDS FOR DIVORCE: NO-FAULT/FAULT
- No-Fault:
- Irreconcilable differences.
- Fault:
- Adultery;
- Extreme cruelty;
- Willful desertion;
- Willful neglect;
- Habitual intemperance;
- Conviction of felony
SEPARATION:
The court may grant a temporary or permanent decree of separation for any cause a divorce may be decreed.
MEDIATION OR COUNSELING REQUIREMENTS
In any proceeding involving an order, modification of an order, or enforcement of an order for the custody, support, or visitation of a child in which the custody or visitation issue is contested, the court may order mediation at the parties’ own expense. The court may not order mediation if the custody, support, or visitation issue involves or may involve physical or sexual abuse of any party or the child of any party to the proceeding.
PROPERTY DISTRIBUTION:
When a divorce is granted, the court shall make an equitable distribution of the parties’ property and debts. The court encourages the parties to settle on property and debt issues. If not, the court will determine those issues for them.
The court, in its deliberations, shall not factor in “fault” concerning the awarding of property, except as it may be relevant to the acquisition of property during the marriage.
CHILD CUSTODY – BEST INTERESTS OF THE CHILD
Custody may be awarded to either the father or the mother. For custody, the best interests and welfare of the child are determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child.
These factors include all of the following if applicable by the court:
- The contribution each spouse had to the acquisition of the marital property;
- The value of each spouse’s separate property;
- The amount of time the spouse has been married;
- The age and health condition of each spouse;
- The current and future earning capacity of each spouse; and
- The value of the property being distributed as well as the income potential of that property.
SPOUSAL SUPPORT:
In determining spousal support, the court may factor in, but is not limited to the following:
The length of the marriage;
The financial impact of each party;
The financial resources of each party;
The age of the spouses; the health condition of the parties;
and the marital fault that caused the divorce, if any.
CHILD SUPPORT:
South Dakota child support statutory guidelines are based on the Income Shares Model for determining child support. The monthly support is determined by applying the guidelines and is distributed proportionally according to each party’s income.
Considering the parties’ circumstances, the court may require one party to pay spousal support to the other party at any time.
The state guidelines determine child support. It is based on the income of each parent.
Income is statutorily defined as follows:
- Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated;
- Self-employment income including gain, profit, or loss from a business, farm, or profession;
- Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments, or insurance contracts;
- Interest, dividends, rentals, royalties, or other gain derived from the investment of capital assets;
- Gain or loss from the sale, trade, or conversion of capital assets;
- Unemployment insurance benefits;
- Worker’s compensation benefits; and
- Benefits in place of compensation, including military pay allowances.
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