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Henry Dahut, J.D.
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South Dakota Family Law Summary
Introduction
According to the CDC, South Dakota’s divorce rate is 2.3 per 1000 people standing just below the national average of 2.4 per 1,000 people.
Couples in South Dakota cite financial strain, infidelity, and fading communication as the leading causes for dissolving their marriages.
Whether you’re considering ending your marriage, or are currently in divorce proceedings, this summary will help you understand the key legal concepts of South Dakota divorce laws:
- South Dakota Residency and Filing Requirements
- Grounds for Divorce in South Dakota
- Separation in South Dakota
- Property Distribution in South Dakota
- South Dakota Child Custody
- South Dakota Child Support
- South Dakota Spousal Support
- Mediation in South Dakota
Residency and Filing Requirements
In South Dakota, to file for divorce, at least one spouse must meet the residency requirement. This means that either the person filing for divorce or their spouse must have been a resident of South Dakota for at least six months immediately before filing.
This requirement ensures that the state has jurisdiction over the divorce proceedings. If neither spouse meets this criterion, they will need to wait until they fulfill the residency period before initiating the divorce process in South Dakota.
A divorce may be filed in the county in which either spouse resides.
Grounds for Divorce
In South Dakota, the legal grounds for divorce include both no-fault and fault-based options.
No-Fault
The primary no-fault ground is irreconcilable differences, which means that the marriage has broken down beyond repair.
Fault-Based
For fault-based divorces, the grounds include:
- Adultery
- Extreme cruelty
- Willful desertion
- Willful neglect
- Abuse of alcohol or controlled substances
- Conviction of a felony
Separation
In South Dakota, legal separation has become a common alternative to divorce where a couple remains legally married but lives separately. The court can issue orders regarding property division, spousal support, and child custody during a legal separation.
This arrangement allows couples to address financial and personal issues without formally dissolving the marriage.
Converting separation into a divorce
If a couple that is legally separated decides to divorce, they can file for divorce, and the court can use the terms of the legal separation as a basis for the divorce decree. This process allows for a more orderly transition by maintaining the agreements already in place.
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.
The court does consider factors such as the duration of the marriage, each spouse’s economic circumstances, each of the spouse’s contributions to the marriage, and future needs.
Both assets and debts acquired during the marriage are subject to division, while separate property—owned before marriage or acquired through inheritance or gifts—typically remains with the original owner.
Child Custody
In South Dakota, child custody decisions are based on the best interests of the child.
The court considers factors such as the child’s needs, each parent’s ability to provide care, the child’s relationship with each parent, and the stability of each home environment.
South Dakota recognizes both physical and legal custody, and parents may share joint custody or one parent may be awarded primary custody.
The overall goal is to ensure a stable and supportive arrangement that fosters the child’s well-being.
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
Child Support
According to the South Dakota Department of Social Services:
Child support obligations are determined by the courts using guidelines set out in state law. When a child’s parents are separated, divorced, or unmarried, the guidelines help ensure both parents are sharing the cost to support their child. The child support obligation is set by looking at the combined monthly net incomes of both parents.
The amount a person paying support must pay is based on their proportionate share.
The child support guidelines are found in South Dakota Codified Law Chapter 25-7.
Watch Family Law Attorney Ellen Wright Discuss Mediation Tips:
Mediation
In South Dakota, mediation in divorce cases is a process in which a neutral third party helps the couple negotiate and reach agreements on issues like property division, child custody, and support.
Mediation is a voluntary process, though courts may encourage it to reduce the time and cost associated with litigation. If successful, the agreements reached in mediation can be submitted to the court for approval and incorporated into the divorce decree.
For reasons of safety, 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.
Sources and References
Cornell Law Information Institute
