South Dakota LGBT Divorce

Same-sex marriage became legal nationwide in 2015 following the U.S. Supreme Court's landmark decision in Obergefell v. Hodges, finally granting gay and lesbian couples the same marriage rights as heterosexual married couples. This historic Supreme Court ruling meant that all couples in South Dakota, regardless of whether they're same-sex couples or opposite-sex couples, gained equal rights to marry, and consequently, equal rights to file for divorce under South Dakota family law.

While South Dakota LGBT divorce follows the same basic legal framework as heterosexual divorces, same-sex couples often face unique challenges regarding child custody when only one partner is a biological parent, property division for relationships that existed before marriage equality, and navigating state laws that haven't fully adapted to recognize the realities of gay and lesbian relationships.

Marriage Equality History in South Dakota

The path to marriage equality in South Dakota reflects broader national struggles for LGBT rights, with the state initially resisting and then being compelled to recognize same-sex marriage.

South Dakota's Ban on Same-Sex Marriage

In November 2006, South Dakota voters adopted a constitutional amendment defining marriage as the union of a man and a woman. This amendment prohibited recognition of same-sex relationships under any name, including civil unions and domestic partnership agreements. Similar restrictions appeared in state statutes as well.

South Dakota became the second state to rewrite its marriage laws to explicitly deny gay and lesbian couples the right to marry, following Utah's similar law enacted in 1995. Governor William J. Janklow signed the bill, responding to concerns about a Hawaii lawsuit that seemed likely to legalize same-sex marriages.

The Rosenbrahn v. Daugaard Lawsuit

On May 22, 2014, six same-sex couples filed a federal lawsuit against South Dakota officials seeking the right to marry and recognition of marriages performed in other jurisdictions. The suit, Rosenbrahn v. Daugaard, challenged South Dakota's constitutional ban on same-sex marriage.

U.S. District Court Judge Karen Schreier heard arguments on October 17, 2014. On January 12, 2015, she ruled for the plaintiffs, finding that South Dakota was depriving them of their "fundamental right to marry." She stayed the implementation of her ruling pending appeal.

Obergefell v. Hodges Makes Marriage Equality Nationwide

On June 26, 2015, same-sex marriage became legal in South Dakota and all of the United States due to the Supreme Court ruling in Obergefell v. Hodges. The decision held that denial of marriage rights to same-sex couples is unconstitutional under the Fourteenth Amendment's Due Process and Equal Protection Clauses.

South Dakota Attorney General Marty Jackley stated: "Because we are a nation of laws the state will be required to follow the Court's order that every state must recognize and license same-sex marriage." Following this Supreme Court ruling, same-sex couples gained the same legal rights and protections as opposite-sex married couples throughout the country.

Basic Divorce Filing Requirements for Same-Sex Couples

LGBT couples seeking to file for divorce in South Dakota must follow the same residency requirements, grounds for divorce, and filing procedures as heterosexual couples.

Residency Requirements

To get a divorce in South Dakota, you must be a resident of South Dakota or a member of the military stationed in South Dakota at the time you file. There's no specific length of residency or waiting period before beginning divorce proceedings; you simply must be a resident "in good faith."

You do not have to be living in South Dakota during divorce proceedings to be granted a divorce. This flexibility benefits couples who may need to relocate for work or other reasons while their divorce is pending.

No-Fault and Fault-Based Grounds

South Dakota recognizes both no-fault and fault-based grounds for divorce that apply equally to same-sex couples and opposite-sex couples.

No-fault divorce  based on irreconcilable differences allows couples to divorce without blaming either spouse for the marriage's end. The judge can grant a no-fault divorce if they find irreconcilable differences exist, meaning there are substantial reasons for the marriage to end. To obtain a divorce on this ground, both spouses must agree to the irreconcilable differences ground, or the spouse served with divorce papers must not appear in the case.

Fault-based grounds for divorce  include:

• Adultery : Your spouse has sexual intercourse with someone else after marriage
• Extreme cruelty : Your spouse causes serious physical injury or serious mental suffering
• Willful desertion : Your spouse leaves with the intent to end the marriage for at least one year
• Willful neglect : Your spouse refuses to provide for common needs despite ability to do so
• Habitual intemperance : Your spouse is under alcohol influence so often they can't manage normal activities
• Conviction of felony : Your spouse is convicted of a felony during the marriage

Most LGBT divorces proceed on no-fault grounds, as this avoids proving specific misconduct and generally results in less contentious proceedings.

Property Division Challenges for Same-Sex Couples

Property division in South Dakota LGBT divorce can become complicated when couples lived together and shared their lives for years or decades before same-sex marriage became legal.

The Marriage Date Problem

South Dakota follows equitable distribution principles, dividing marital property fairly based on multiple factors. Marital property generally includes any assets or property earned or acquired during the marriage, with some exceptions for separate property like inheritances or gifts.

For same-sex couples who cohabitated and built lives together before 2015, this creates significant unfairness. Property acquired during years of commitment before marriage became legal typically gets classified as separate property belonging to whoever holds title.

Arguing for Fair Treatment

Some South Dakota judges recognize the unfairness of applying traditional property division rules to same-sex couples whose relationships predated marriage equality. Courts have the authority to decide on any way of dividing fair property, and some judges consider the entire relationship period when making equitable distribution decisions.

However, there's no guarantee you'll walk away from marriage with anything your spouse acquired before legal marriage, even if you functioned as a committed partnership for years. This makes strong legal representation essential for protecting your interests in South Dakota LGBT divorce.

Documentation

LGBT couples who lived together before marriage should gather evidence of their pre-marriage relationship and shared financial contributions:

• Joint bank account statements from before marriage
• Mortgage or rent payments showing both names or joint contributions
• Evidence of joint purchases or shared expenses
• Communications referring to each other as spouses or life partners
• Testimony from friends and family about the relationship
• Evidence of shared decision-making about major purchases or investments

This documentation helps argue that property acquired before legal marriage should be treated as marital property subject to equitable division.

Spousal Support Complications

Alimony (also called spousal support or maintenance) in South Dakota LGBT divorce faces similar challenges regarding relationship length and financial interdependence that predated legal marriage.

How Relationship Length Affects Alimony

South Dakota courts consider multiple factors when determining spousal support, with marriage length playing a significant role. Longer marriages typically result in longer or permanent support obligations, while shorter marriages may result in limited or no support.

For same-sex couples married since 2015 or later, the legal marriage may appear quite short, even if the relationship spanned decades. Some judges add unmarried years of cohabitation to the legal marriage length before deciding spousal support amounts and duration. Others may not consider any relationship outside of legal marriage.

Factors Courts Consider

When determining separate maintenance or alimony in South Dakota, judges examine:

• Standard of living established during the marriage (and potentially during pre-marriage cohabitation)
• Earning capacity and financial resources of both parties
• Age, health, and general physical condition of both spouses
• Length of the marriage (and potentially pre-marriage relationship)
• Contributions of each party to caring for children, homemaking, and other duties
• Each party's fault led to the dissolution of the marriage
• Any other factors the court deems relevant and equitable

LGBT couples should present evidence of their full relationship history, including years before marriage became legal, to argue for appropriate spousal support that reflects actual financial interdependence.

Palimony in Limited Circumstances

Some states recognize "palimony", financial support for unmarried partners based on years spent living together before legal marriage. While South Dakota law doesn't explicitly provide for palimony, some jurisdictions have considered pre-marriage cohabitation when making support determinations for same-sex couples.

Child Custody

Child custody represents perhaps the most complex and emotionally charged issue in South Dakota LGBT divorce, particularly when only one spouse is the biological parent.

Biological vs. Non-Biological Parents

In many same-sex relationships, children are the biological offspring of only one parent. This occurs through:

• Artificial insemination or in vitro fertilization using one parent's egg or sperm
• Surrogacy arrangements where one parent provides genetic material
• Children from previous relationships that one partner brought into the marriage
• Adoption where only one partner completed the legal adoption process

If the non-biological parent never established legal parental rights through adoption or other legal procedures, South Dakota courts may not recognize that person's parental rights during divorce. Even when both spouses functioned as full parents throughout the child's life, the non-biological parent without legal status may have no rights to child custody or even visitation.

The Paternity Presumption Issue

State laws have traditionally provided that a man married to a mother when a child is born during the marriage is presumed to be the child's father. Following the Supreme Court ruling in Obergefell v. Hodges and the 2017 Pavan v. Smith decision, some courts have extended this presumption to same-sex couples.

The Pavan decision established that the wives of mothers who have a child during marriage through assisted reproduction should be considered the child's other parent, just as husbands of mothers receive automatic parental recognition.

However, application of this presumption varies by jurisdiction and individual judges. Some South Dakota courts apply the presumption to same-sex couples, while others may not. This creates uncertainty for non-biological parents seeking custody rights.

Establishing Legal Parental Rights

Same-sex couples can protect both parents' rights by establishing legal parental status for the non-biological parent:

Step-Parent Adoption

If married, the non-biological parent can petition the court for step-parent adoption, granting full legal parental rights and responsibilities.

Second-Parent Adoption

Allows the non-biological parent to adopt without terminating the biological parent's rights, creating two legal parents with equal status.

Both Parents Adopting Together

When neither spouse is biologically related to the child (such as in traditional adoption), both spouses should complete the adoption process together.

Once both partners hold legal parental status, child custody determinations follow the same standards as heterosexual divorces, with courts considering:

• Each parent's relationship with the child
• Capacity of each parent to meet the child's needs
• Mental, emotional, and physical health of each parent
• Home stability and living arrangements
• Willingness to facilitate the child-other parent relationship
• Any history of domestic violence or abuse
• The child's preference (depending on age and maturity)

Challenges for Non-Biological Parents Without Legal Status

Non-biological parents who never established legal parental rights face severe obstacles during South Dakota LGBT divorce:

Lack of Legal Standing

Without formal adoption, non-biological parents may have no legal right to seek custody or visitation, regardless of their actual parenting role throughout the child's life.

Disputed Parental Roles

If the biological parent challenges the non-biological parent's rights, courts require proof that the non-biological parent served as a "de facto parent", someone who assumed a genuine parental role with the biological parent's consent.

Extended Litigation

Legal battles between biological and non-biological parents without a clear legal status take longer to resolve and cost significantly more than standard custody disputes.

Limited Remedies

Even when non-biological parents win some visitation rights, they may not receive decision-making authority or the full range of parental rights afforded to legal parents.

Child Support Obligations

Child support in South Dakota LGBT divorce depends largely on whether both spouses have established legal parental status.

When Both Parents Have Legal Status

When both spouses are legal parents, either through biological connection, adoption, or legal presumption, South Dakota child support guidelines apply normally. The state uses specific formulas based on both parents' incomes and the number of children to calculate support amounts.

The non-custodial parent pays child support to the custodial parent, with amounts determined by income proportion, number of children, health insurance costs, childcare expenses, and extraordinary medical needs.

When Only One Parent Has Legal Status

If only the biological parent has legal parental status because the non-biological parent never completed adoption, that non-biological parent typically has no legal obligation to pay child support. While this may seem like a benefit to the non-biological parent, it often represents a significant loss; they have no parental rights but also no ongoing legal relationship with the child they helped raise.

Conversely, if the non-biological parent wants to maintain a relationship with the child and seek visitation, they may voluntarily agree to pay child support as part of negotiations with the biological parent.

Adoption Considerations in LGBT Families

South Dakota adoption law doesn't explicitly prohibit or allow adoption by same-sex couples, but federal law establishes that married same-sex couples have the same adoption rights as opposite-sex couples.

Current Adoption Rights

Any single person in South Dakota is allowed to adopt. To adopt as a couple, individuals must be married. Second-parent adoption is also permitted, allowing non-biological parents in same-sex relationships to establish legal parental rights.

South Dakota courts may declare both intended parents as legal parents of a child in pre-birth orders for surrogacy arrangements, applying to both male gay couples and lesbian couples using assisted reproduction.

Religious Exemption Law

South Dakota law permits adoption agencies to choose not to place children in certain homes if it would violate the agency's religious or moral convictions. This law, known as S.J. 746, was passed in May 2017.

While the law doesn't explicitly target LGBT couples, it allows faith-based adoption agencies to refuse placement with same-sex couples based on religious objections to gay and lesbian relationships. This creates barriers for some LGBT couples seeking to adopt children together.

Settlement Agreements and Mediation

LGBT couples navigating divorce can benefit significantly from reaching settlement agreements outside of court rather than leaving decisions to judges who may not fully understand or appreciate same-sex relationship dynamics.

Benefits of Settlement Agreements

Marital settlement agreements allow couples to negotiate their own terms for property division, spousal support, child custody, and child support. Benefits include:

• Greater control over outcomes : You decide what's fair rather than leaving it to a judge's interpretation
• Flexibility for unique situations : You can account for pre-marriage relationship years in ways courts might not
• Privacy : Settlement negotiations remain confidential, unlike court proceedings that become public record
• Lower costs : Negotiated settlements cost substantially less than contested litigation
• Faster resolution : Agreements can be reached and finalized much more quickly than court battles

The Role of Mediation

Mediation involves meeting with a neutral professional who guides you and your spouse through identifying issues and developing solutions that work for both parties. Mediation proves particularly useful for LGBT couples when:

• Complex parental rights questions arise : Mediators can help craft creative custody solutions for non-biological parents
• Property division involves pre-marriage assets : You can negotiate recognition of property acquired during pre-marriage cohabitation
• Maintaining cooperative relationships matters : Especially important for co-parenting arrangements
• Both parties want to minimize costs : Mediation costs substantially less than litigation

When Litigation Becomes Necessary

Despite the benefits of settlement and mediation, some divorces require litigation. This becomes necessary when:

• One spouse refuses to negotiate in good faith
• A biological parent attempts to shut out a non-biological parent from the child's life
• Significant disputes exist about property valuation or division
• One spouse has hidden assets or engaged in financial misconduct
• Domestic violence or abuse occurred during the marriage

Discrimination Protections in South Dakota

While same-sex marriage is legal nationwide, LGBT individuals in South Dakota face limited discrimination protections in other areas of life.

Limited Statewide Protections

No provision of South Dakota law explicitly addresses discrimination on the basis of sexual orientation or gender identity in employment, housing, or public accommodations at the state level.

However, the U.S. Supreme Court's June 15, 2020 ruling in Bostock v. Clayton County established that employment discrimination against LGBTQ people is illegal under federal law. The decision held that discrimination on the basis of sexual orientation or gender identity constitutes sex discrimination prohibited by Title VII of the Civil Rights Act.

Local Protections

Some South Dakota jurisdictions provide local discrimination protections:

• Brookings  provides comprehensive anti-discrimination protections covering sexual orientation and gender identity in employment, housing, and public accommodations for both public and private employees.
• Oglala Lakota County , Sioux Falls , and Vermillion  prohibit discrimination against county or city employees based on sexual orientation and gender identity.
• Minnehaha County , Spearfish , and Watertown  prohibit discrimination against county or city employees based on sexual orientation only.

Religious Freedom Concerns

In March 2021, Governor Kristi Noem signed legislation allowing businesses to deny goods or services to LGBT people and others based on owners' religious beliefs. This law creates potential for discrimination against gay and lesbian couples in various contexts, though its application to divorce proceedings remains unclear.

Public Opinion on LGBT Rights in South Dakota

Public opinion in South Dakota has evolved significantly on LGBT issues, though the state remains more conservative than the national average.

Support for Same-Sex Marriage

A 2022 Public Religion Research Institute (PRRI) opinion poll found that 63% of South Dakota residents supported same-sex marriage, while 37% opposed it and 1% were unsure. This represents substantial growth from 2006, when voters approved the constitutional ban by a significant margin.

Support for Anti-Discrimination Laws

The same 2022 poll found that 67% of South Dakota residents supported anti-discrimination laws covering sexual orientation and gender identity, while 32% were opposed.

Opposition to Religious Refusals

Additionally, 62% of South Dakota residents were against allowing businesses to refuse to serve gay and lesbian people due to religious beliefs, while 38% supported allowing such religiously-based refusals.

These numbers suggest growing acceptance of LGBT rights in South Dakota, though significant opposition remains, particularly in rural areas and among certain religious communities.

Resources for LGBT Couples

Several resources exist to support LGBT couples navigating divorce in South Dakota and nationwide.

Legal Assistance

• Lambda Legal  provides legal support and advocacy for LGBT individuals facing discrimination and legal challenges, including family law matters.
• National Center for Lesbian Rights (NCLR)  offers legal resources, advocacy, and sometimes direct representation for LGBT families.
• ACLU LGBT & HIV Project  works to advance LGBT rights through litigation, advocacy, and public education.

Support Services

• PFLAG  (Parents, Families, and Friends of Lesbians and Gays) offers support groups and resources for LGBT individuals and their families throughout South Dakota.
• The Trevor Project  provides crisis intervention and suicide prevention services for LGBTQ youth, including those affected by family breakups.
• Local LGBT Community Centers  in larger South Dakota cities offer support groups, counseling referrals, and community connections.

Financial Planning

LGBT couples going through divorce should work with financial advisors experienced with same-sex divorce complications, particularly regarding:

• Property division for assets acquired before marriage became legal
• Retirement account division and beneficiary updates
• Tax implications of property transfers and support payments
• Estate planning updates post-divorce

While substantial progress has been made toward equality for gay and lesbian couples in South Dakota and nationwide following the Supreme Court ruling in Obergefell v. Hodges, same-sex couples navigating divorce still face unique legal challenges requiring knowledgeable, experienced family law representation committed to LGBT equality.