Divorce – State FAQ – South Dakota
Residency requirements, venue and procedures
Q: How long must I have lived in South Dakota prior to filing for divorce in a South Dakota court?
A: The plaintiff in an action for divorce 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.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
A: No divorce will be granted until at least sixty days have elapsed from the date on which the summons and complaint were served.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in South Dakota. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in South Dakota?
A: Divorces may be granted for any of the following seven (7) causes:
2. Extreme cruelty;
3. Willful desertion;
4. Willful neglect;
5. Habitual intemperance (i.e.- habitual drunkenness 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.
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.
Q: Does the state of South Dakota recognize an alternative to an absolute divorce: legal separation?
A: Yes. If the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation.
Q: On what basis does the court decide how marital property is divided?
A: South Dakota is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: 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.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: Can grandparents be granted visitation rights?
A: Yes. In South Dakota grandparents may be granted visitation rights if it is within the best interest of the grandchild and it will not interfere with the parent-child relationship or the grandparent has been denied visitation.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
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.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: 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.