Getting divorced in South Dakota involves specific legal requirements, procedures, and considerations that differ from other states. Whether you're contemplating divorce or already navigating the process, knowing how South Dakota divorce law works helps you make informed decisions and protect your interests throughout the proceedings.
What Makes South Dakota Divorce Law Unique
South Dakota stands out among states for having some of the most lenient requirements for filing for divorce, yet the state maintains specific procedures and waiting periods that all divorcing couples must follow.
Minimal Residency Requirements
South Dakota has the most lenient residency requirements when it comes to divorce. Most states require petitioners to live in-state for months or even a year before filing for divorce, but South Dakota courts only require you to be a resident when you file for divorce.
You don't need to have lived in South Dakota for any specific length of time before filing. A person can live in South Dakota for only one day and be a resident of the state, provided they intend to remain there. However, the court may require you to remain in the state during divorce proceedings until the divorce becomes final.
No Separation Requirement Before Filing
South Dakota divorce law doesn't require separation before divorce. You and your spouse can live together until the judge issues the decree of divorce. While most people getting divorced would rather not live with their spouse once they file, it's good to know this option exists.
Mandatory 60-Day Waiting Period
One legal requirement South Dakota courts impose is a mandatory 60-day waiting period. The judge cannot issue the final judgment for divorce until at least 61 days have passed since you served the divorce papers on your spouse. This "cooling off" period allows parties to reconcile or modify the divorce settlement agreement.
The court can enter temporary orders concerning child custody, support, alimony (spousal support), and use of the marital residence during the waiting period.
Grounds for Divorce in South Dakota
South Dakota recognizes both fault-based and no-fault grounds for divorce. The grounds you choose can affect various aspects of your case, including how quickly it proceeds and whether certain issues like alimony or property division are impacted.
No-Fault Divorce
You can get a divorce in South Dakota without claiming that your spouse is at fault by citing "irreconcilable differences." The judge can grant you a no-fault divorce if they find that irreconcilable differences exist between you and your spouse. Irreconcilable differences exist when there are substantial reasons for the marriage to end.
Special Requirements for No-Fault Divorce
To get a divorce based on irreconcilable differences, one of the following must be true:
- Both you and your spouse must agree (consent) to a divorce on the grounds of irreconcilable differences, or
- The spouse who was served with the divorce petition does not appear in the divorce case (does not make a "general appearance")
If it appears to the judge that there's a reasonable possibility of reconciliation, the judge will continue the case for up to thirty days. During this time, the judge can enter temporary orders dealing with support (maintenance or alimony), custody, attorney fees, and orders related to joint property.
Fault-Based Grounds for Divorce
A fault-based divorce action allows the petitioner to blame the divorce on their spouse. You must submit evidence to back it up if you cite specific grounds for divorce. You cannot accuse your spouse of adultery or extreme cruelty without having concrete evidence of such misconduct.
South Dakota law recognizes six fault-based grounds for divorce:
Adultery
Adultery means your spouse has sexual intercourse with someone else after you're married. Marital misconduct like adultery can affect custody of minor children, alimony, and the division of marital property.
Extreme Cruelty
Extreme cruelty occurs when your spouse causes you serious physical injury or causes you serious mental suffering. This ground recognizes both physical abuse and severe emotional harm.
Willful Desertion
Willful desertion means your spouse leaves you with the intent to leave the marriage. It's not "willful desertion" if you and your spouse separate with the knowledge that one of you is planning to file for divorce.
Willful desertion can also mean:
- Your spouse regularly refuses to have sexual intercourse when there's no physical or mental reason for them to do so
- Your spouse tricks you into leaving your home and then abandons the marriage
- Your spouse is cruel or threatens bodily harm to you, forcing you to flee the marriage to avoid reasonably expected danger
- Your spouse leaves temporarily and then decides to leave permanently while gone
- Your spouse refuses a good-faith effort by you to get back together (reconcile) and fix the marriage
Willful Neglect
Willful neglect occurs when your spouse refuses to provide for your common needs, even though they can afford to do so, because of laziness (idleness), extravagant habits (profligacy), or wastefulness (dissipation).
Habitual Intemperance
Habitual intemperance means your spouse is under the influence of alcohol so often that they can't manage normal activities, or so often that it causes you intense emotional distress. The intoxication must prevent a person from attending to daily business and must last longer than one year.
Conviction of Felony
If your spouse is convicted of a felony during your marriage, this constitutes grounds for divorce. The conviction must have occurred after you were married.
Types of Divorce Proceedings in South Dakota
Once you decide on grounds for divorce, you must determine the type of divorce you'll pursue. South Dakota recognizes several types of divorce proceedings, each following different procedures and timelines.
Default Divorce
Default divorce occurs when one party files for divorce in South Dakota and the other party fails to respond or contest any agreements within the petition, such as alimony, property allocation, and child custody. This type of divorce is granted on one spouse's testimony alone.
If the defendant doesn't respond within 30 days and doesn't contest anything after 60 days, a default judgment may be entered. The plaintiff can ask the judge for anything and everything requested in the complaint, including alimony, custody of the children, property, and attorney fees.
Uncontested Divorce (Stipulation)
An uncontested divorce is appropriate for couples who have already negotiated the terms of their divorce. Where parties can agree on custody of children, division of property and debts, child support, and alimony, a written agreement called a "stipulation" is prepared and signed by both parties.
In this situation, the divorce is handled like a default divorce and is granted on your testimony alone. The stipulation is presented to the court for the judge's approval, and you're bound by it. There's also a provision for entry of a divorce without the appearance of either party if both consent, all terms are outlined in the stipulation, and both parties agree the grounds for divorce are irreconcilable differences.
Not only is an uncontested divorce less expensive thana contested divorce, but it's also less emotionally draining.
Contested Divorce
If your spouse files a formal answer and doesn't agree to the divorce, showing there's a dispute on matters such as custody, child support, or division of property and debts, a trial will be held. The judge decides these matters based on evidence, including testimony from both parties and other witnesses. The court will decide on all matters not previously agreed to by the parties.
Petitioners who file contested divorces do so because they can't agree on material terms such as alimony/spousal support, equitable distribution of marital property, child custody and visitation, and allocation of marital debts.
With contested divorce, you must pay not only filing fees but other expenses as well. You'll pay more in attorney fees as your family law attorney spends hours negotiating a settlement agreement. You may also incur costs for depositions, private investigators, and appraisers, depending on your case facts.
Mediation and Evaluations
In any custody or visitation dispute between parents, the court shall, unless deemed inappropriate, order mediation to assist parties in developing a parenting plan. The parenting plan addresses custody and visitation to be formulated by parents with the assistance of a qualified mediator.
The court may also direct that an evaluation be conducted to assist the court in making custody or visitation orders. The cost of mediation and evaluations is allocated by the court unless agreed upon by the parties.
How to Start Divorce Proceedings in South Dakota
The divorce process in South Dakota follows specific procedures that begin with filing paperwork and serving your spouse.
Filing the Divorce Papers
Most divorces start with seeing a lawyer. The party bringing the divorce (the plaintiff) signs the opening paperwork, called a Summons and Complaint, which is then served on the other spouse (the defendant).
The complaint asks the court to grant a divorce and states your grounds. The complaint also states what you want the court to do about matters such as child custody, child support and visitation, alimony, and division of property and debts of the marriage.
The summons demands that your spouse answer the complaint within thirty days or a default judgment may be entered against them after sixty days. The complaint for divorce must be answered if the spouse wishes to contest the divorce, custody of children, child support, alimony, division of property and debts, or any other statement in the complaint.
Service of Process
The summons and complaint must be "served", that is, personally delivered, to your spouse to notify them of the divorce action. Your spouse may sign an "admission of service" which simply states they received the divorce papers. This saves the expense of having the papers served.
If your spouse isn't agreeable to signing the admission of service, then the sheriff or a process server in the county where your spouse resides can serve the papers.
Service by Publication
If your spouse cannot be found through diligent efforts, your attorney may "serve" your spouse by publishing a summons of the divorce in a newspaper. However, every effort should be made to locate your spouse personally before resorting to this method of service.
Filing Fees and Costs
There's a filing fee at the courthouse of approximately $95 for each case. Filing fees and sheriff's fees may be waived for persons whose sole source or primary source of income is:
- Aid to dependent children
- Social security
- County poor relief
- At a level determined by the court to be so low that the person cannot afford to pay the fees
Automatic Restraining Orders During Divorce
A temporary restraining order is automatically in effect against both parties from the filing of a summons and complaint and service on the spouse until the final decree is entered, the complaint dismissed, or it's otherwise ordered by the court.
What the Automatic Restraining Order Covers
The parties are restrained from:
- Disposing of any marital assets
- Molesting or disturbing the peace of the other party
- Removing any minor child of the parties from the state without the written consent of the other party or a court order
Additional Protection Orders
Other restraining orders or protection orders may also be granted by the court upon application of either party. If your spouse disobeys a restraining order or protection order, the court, after a hearing, can hold them in contempt of court.
Child Custody Under South Dakota Divorce Law
When divorcing couples have minor children, determining custody becomes one of the most important aspects of the divorce proceedings.
How Courts Decide Custody
If there's a dispute, the court decides which parent is the better custodian of the child at this point in the child's life. This is based upon which parent the judge finds is most fit to care for the child and what is in the best interests of the child.
The relative fault of either party may only be considered if it's relevant to the fitness of the parent. Joint custody provisions are also allowed in certain cases. The court may order that you attend a class to learn about the effects of divorce on your children.
Legal Custody vs. Physical Custody
Joint "legal" custody generally applies to most divorces, as well as children from unmarried parents. Parties simply agree they'll work together in the best interests of the children, won't badmouth each other or cut off contact, will both have open access to medical and school records, will notify each other of accidents or illnesses, and will confer with each other on major items of importance.
Joint physical custody means children spend equal amounts of time in each home. Usually, the parent who was the child's primary caretaker retains primary physical custody. Parties almost always share joint legal custody.
Joint Physical Custody Arrangements
Joint physical custody arrangements generally fall into three categories:
- Week-on, Week-off
Parents have the children for a week at a time, then rotate.
- 2/2/3 Schedule
This rotates throughout the week, with parent A having children Monday and Tuesday, parent B on Wednesday and Thursday, then parent A having them Friday through Sunday, then rotating that schedule the next week. This reduces the number of consecutive overnights in each home and how long either parent goes without seeing the children, but also avoids daily transitions and guarantees three-day weekends to each parent.
- Work Schedule Based
One parent has the kids during the day and the other parent at night, revolving around work schedules.
S.M.I.L.E. Program
All divorces involving children in Minnehaha and Lincoln Counties in South Dakota require that couples attend S.M.I.L.E. (Start Make it Livable for Everyone). It's held on the 2nd and 4th calendar Tuesdays of each month, in Courtroom 1A of the Minnehaha County Courthouse, at 7:00 p.m. You need to sign up and pay $5. Parents don't need to attend together and children may not attend with you.
Child Support in South Dakota
South Dakota uses child support guidelines to determine the amount the non-custodial parent must pay.
How Child Support is Calculated
Child support is based upon a formula. It says, in essence, that for two parents who make X and Y amounts of money, they typically spend Z raising one child, two children, etc.
Whichever parent is the primary physical custodial parent receives child support from the other parent, and the custodial parent is responsible for paying all bills for the children, including daycare, clothes, school lunches, and all activity fees.
The non-custodial parent pays their share of Z based on their income proportion. The non-custodial parent is also expected to pay costs to feed and entertain the kids when they have them on visitation, but the custodial parent is expected to provide all clothing for visitation.
Child Support with Joint Physical Custody
South Dakota has a formula for calculating child support in joint custody situations. It really amounts to a formula where one parent pays the other for half of the time the other parent has the kids, and the second parent pays for the time the first parent has the kids.
If one parent makes more than the other, they'll pay more for that half of the time, and when you subtract one amount from the other, whoever owes more still pays that amount. Support in joint custody situations is far lower than it is in more traditional arrangements.
The parties must also have an agreement regarding paying for health insurance, daycare, out-of-pocket medical costs for the children, and paying for other expenses.
Spousal Support (Alimony) in South Dakota
According to South Dakota Codified Law Section 25-4-41, courts grant alimony to help the lower-earning spouse become self-supporting. It's not something courts use to punish the spouse ordered to pay support, though adultery can impact spousal support.
Types of Alimony in South Dakota
South Dakota divorce law recognizes three types of alimony:
General Alimony
General alimony ensures the receiving spouse can maintain housing and provide for their necessities, such as food and clothes. General alimony can be temporary or permanent.
Temporary alimony is usually given to the lower-earning spouse to help support them during divorce proceedings. For example, if one spouse can't afford a divorce attorney, the judge may order the other party to pay them temporary support.
Receiving temporary alimony during the divorce case doesn't guarantee post-divorce support.
Rehabilitative Alimony
Rehabilitative alimony helps the receiving spouse return to school or learn skills that will increase their ability to find a good-paying job and be in a position to support themselves.
Restitutional Alimony
Restitutional alimony reimburses the receiving spouse for contributions made toward the other spouse's education or training received during the marriage.
Factors Courts Consider for Alimony
The judge considers several factors when determining separate maintenance/alimony:
- Standard of living during the marriage
- The earning capacity and financial resources of both parties
- Age, health, and general physical condition of the relative spouses
- Length of the marriage
- Contributions of each party as they relate to caring for children, homemaking, and other duties
- Each party's fault led to the dissolution of the marriage
- Any other factors that the court deems relevant and equitable
If the judge orders alimony, they'll specify the amount and duration. Permanent alimony terminates upon the death of either party. It also ends when the receiving spouse remarries, though the paying spouse must file a motion with the court; alimony doesn't terminate automatically.
Property Division Under South Dakota Divorce Law
South Dakota is not a community property state. The court uses equitable distribution to divide marital property based on equity and the parties' financial position.
What is Marital Property
Any property the parties acquire during the marriage is subject to equitable distribution. This includes but is not limited to:
- Real estate (marital home, rental properties, etc.)
- Personal property (cars, art, jewelry, etc.)
- Family pets
- Retirement accounts
- Pension plans
- Bank accounts
- Business interests
What is Separate Property
The parties get to keep their separate property. Separate property includes anything the parties brought into the marriage. It also includes gifts, inheritances, and personal injury awards or settlements.
Equitable Distribution Process
Where a divorce is granted, the court has full power to divide property belonging to the parties located within South Dakota, regardless of whose possession it's in. Parties may agree to a division of property and debts in their stipulation. If there's disagreement, the judge makes the decision.
Generally, the court divides property and debts equitably between parties. Equitably doesn't necessarily mean equally. The fault of parties as to the breakdown of the marriage is not a factor when the court divides property.
Finality of Property Division
It's important to keep in mind that the final decree is final as to property division and cannot be modified by the court in the future. This differs from child support and alimony, which can be modified upon showing a substantial change in circumstances.
Joint Debts After Divorce
A divorce does not affect a creditor's right to collect its debt from you. A creditor doesn't have to release you from an existing joint obligation just because you're getting divorced.
Protecting Yourself from Joint Debts
You should:
- Obtain a credit report to see debts listed in your name before filing for divorce
- Call each creditor shown in your report to discuss your pending divorce and attempt to establish a separate account for yourself
- Continue to make at least monthly minimum payments on joint accounts while the divorce is pending
- Send certified mail to creditors, noting you won't be responsible for any new charges after a specific date
- Consider consulting a reputable debt-counseling agency
- Recognize that the sale of a residence or other major assets may be the best way to terminate major joint obligations
If your spouse is ordered to pay a certain bill, the creditor can still bring action against you for the amount of any bill originally in your name. You can bring a court action against your former spouse, who can be held in contempt of court for failure to obey the court's order and be required to pay you.
Attorney Fees and Costs of Divorce
The court can order either party to pay all or part of the attorney fees and costs of the other party.
What You'll Pay
Each party is responsible for its attorney fees unless otherwise ordered by the court. Attorney fees are the amount an attorney charges a client for the time and work expended on the case.
In addition, each party is also responsible for the costs incurred. Costs include:
- Filing fees for filing your case with the clerk of courts ($95)
- Service fees or publication costs for serving your spouse
- Long-distance phone calls
- Mediation fees
- Custody evaluation fees
- Depositions
- Costs to obtain records
- Any other expense incurred on your behalf
Estimated Costs
Uncontested divorces can usually be handled in approximately 4 hours of attorney time, plus filing fees of $95, plus sales taxes, and costs of serving papers on the other side.
Should a hearing be necessary, small hearings can cost around $500-$600, and longer hearings cost closer to $1,000. If a trial is necessary, it usually adds at least $2,000 per trial day to the cost of the divorce.
What's Included in the Final Divorce Decree
When the judge grants your divorce, the final decree addresses all aspects of your marriage dissolution.
Dissolution of Marriage
The decree dissolves the marriage, and each of you is returned to the status of a single person.
Name Change
The divorce decree may include a provision restoring the woman's former or maiden name.
Child-Related Orders
The decree includes all provisions regarding child custody (legal and physical), visitation schedules, and child support obligations.
Financial Provisions
The decree specifies any alimony awards (type, amount, and duration), division of all property and assets, and allocation of all marital debts.
Getting Legal Help with South Dakota Divorce
Divorces can be legally and emotionally stressful, especially if you've never gone through the process before. While you can handle simple uncontested divorces yourself using court forms, most situations benefit from professional legal guidance.
If you have questions about South Dakota divorce law, speak with a divorce attorney in your jurisdiction. An experienced South Dakota divorce attorney can explain your rights, help you gather necessary documentation, negotiate on your behalf, and represent you in court if necessary.
Getting started with legal representation early in the process helps ensure you don't make mistakes that could negatively impact your financial future or relationship with your children. Many attorneys offer free initial consultations where you can discuss your situation and learn about your options under South Dakota divorce law.