When couples file for divorce in South Dakota, numerous factors influence how South Dakota courts handle the divorce case, from initial filing through final decree. These South Dakota divorce influencing factors affect critical decisions about property division, spousal support, child custody, and the overall divorce process. Understanding what influences court decisions helps couples prepare realistic expectations and make informed choices throughout their divorce proceedings.
Legal Requirements Affecting South Dakota Divorces
Several fundamental legal requirements influence every South Dakota divorce case, establishing the framework within which all other factors operate.
Residency Requirements
South Dakota has the most lenient residency requirements when it comes to divorce. The filing spouse must be a resident in good faith at the time of filing, but there's no specific length of residency or waiting period before beginning the action required. However, once the proceeding is commenced, you must remain a resident of the state until the divorce is final.
This minimal residency requirement makes South Dakota accessible for divorce, though you cannot establish temporary residence just to obtain a divorce before returning elsewhere. If your spouse lives in another state, the South Dakota court may be limited to only granting you a divorce, but may not have jurisdiction over issues such as child custody and support, or distribution of marital property that lies in the state where the other spouse resides.
The Mandatory 60-Day Waiting Period
One legal requirement the South Dakota courts impose is a mandatory 60-day waiting period. The judge cannot issue the final judgment for divorce until at least 60 days have passed since the divorce papers were served on your spouse. This "cooling off" period allows the parties to reconcile or modify the divorce settlement agreement.
The waiting period influences divorce timing and strategy. During these 60 days, the court can enter temporary orders concerning child custody, support, alimony (spousal support), and use of the marital residence. These temporary arrangements sometimes become the foundation for permanent orders, making early decisions particularly important.
No Separation Requirement
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, this flexibility recognizes that financial realities sometimes require couples to share housing during divorce proceedings.
Grounds for Divorce in South Dakota: Fault vs. No-Fault
The grounds cited for divorce represent a significant influencing factor, affecting how the divorce process unfolds and what issues courts consider when making determinations.
No-Fault Divorce
South Dakota recognizes both fault and no-fault divorce. Many couples choose irreconcilable differences to simplify the process. This no-fault ground exists when there are substantial reasons for the marriage to end that cannot be resolved. To use irreconcilable differences, either both spouses must agree to this ground, or the spouse served with divorce papers does not make a general appearance in the case.
No-fault divorces typically move faster, cost less in attorney fees and filing fees, reduce conflict between spouses, and protect privacy by avoiding detailed testimony about marital problems. Most South Dakota divorces proceed on this ground because it allows couples to focus on practical matters rather than assigning blame.
Fault-Based Grounds
Traditional fault grounds include adultery, extreme cruelty, willful desertion, habitual intemperance (alcohol or drug abuse), willful neglect, and conviction of a felony. Fault claims require proof and typically add time and cost to the divorce process.
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. This evidentiary requirement influences whether couples pursue fault divorce, as gathering sufficient proof requires time, expense, and often private investigators or extensive documentation.
How Grounds Affect Outcomes
The grounds chosen influence certain divorce outcomes. Marital misconduct can affect the custody of minor children when relevant to parenting fitness, and can significantly impact alimony awards. However, fault of the parties as to the breakdown of the marriage is NOT a factor when the court divides property under South Dakota law.
Property Division Factors in South Dakota
South Dakota is not a community property state. The court uses equitable distribution to divide marital property, meaning the courts determine the division of property based on equity and the parties' financial position rather than automatic equal division.
Identifying Marital vs. Separate Property
When a couple divorces in South Dakota, everything they own is characterized as either marital or separate property. Marital property is property acquired or earned during the marriage, while separate property includes anything the parties brought into the marriage, gifts, inheritances, and personal injury awards or settlements.
Property used for the benefit of the marriage or shared with the other spouse, even if it started as separate property, may also be considered marital property. This commingling factor influences what assets become subject to division, making documentation of separate property origins important.
Types of Property Subject to Division
Any property the parties acquire during the marriage will be subject to equitable distribution. This includes real estate (marital home, rental properties), personal property (cars, art, jewelry), family pets, retirement accounts, and pension plans. In South Dakota, it does not matter whether title to property is in the husband's name, the wife's name, or both. Regardless of the title, the court can split the property or even give it to the other spouse if that's the most equitable thing to do.
Court Considerations for Equitable Distribution
Once all property is valued, the court applies a set of factors to divide it fairly. These factors significantly influence final property awards and include:
Length of marriage
Longer marriages typically result in more equal property division, as courts recognize that both spouses contributed to accumulating assets over time. Shorter marriages may see less equal division, particularly when one spouse brought significant separate property into the marriage.
Each spouse's contribution to marital property
Contributions can be non-monetary, such as homemaking, child-rearing, and other unpaid work, as well as monetary contributions through employment or business activities. South Dakota courts recognize that stay-at-home parents contribute value equal to wage-earning spouses.
Ages and health conditions
Younger, healthier spouses are presumed to have a greater ability to rebuild wealth and support themselves post-divorce. Older spouses or those with health issues limiting earning capacity may receive larger property shares to compensate for reduced future earning potential.
Current and future earning capacity
Courts examine each spouse's education, work history, job skills, and employment opportunities. A spouse with significantly greater earning capacity may receive less property, while a spouse with limited earning capacity may receive more to balance future financial security.
Value of separate property
If one spouse has substantial separate property that won't be divided, courts may award that spouse less marital property. Conversely, a spouse with little separate property may receive more marital property.
Income potential of distributed property
Courts consider whether property generates income (rental properties, dividend-producing investments) versus property that only has value if sold. Income-producing property may be allocated strategically based on each spouse's financial needs.
Limited Role of Fault in Property Division
Fault in causing the marriage to fail, such as adultery, extreme cruelty, or conviction of a felony, is generally NOT a factor in property division unless the bad behavior had something to do with how property was acquired during the marriage. It is not particularly easy to prove a relevant connection between fault and the acquisition of property, however.
For example, if one spouse's gambling addiction depleted marital savings, or if one spouse secretly transferred marital assets to a paramour, these fault-related property dissipations might influence division. But ordinary adultery or cruelty without financial impact doesn't affect property awards.
Spousal Support Influencing Factors
Spousal support (also called alimony or separate maintenance) represents another area where multiple factors influence court decisions. South Dakota courts grant alimony to help the lower-earning spouse become self-supporting rather than to punish the spouse ordered to pay support.
Types of Spousal Support
South Dakota divorce law recognizes three types of alimony, and the type awarded influences duration and modifiability:
- General alimony ensures the receiving spouse can maintain housing and provide for necessities such as food and clothes. This can be temporary (during divorce proceedings) or permanent (continuing after divorce). General alimony typically applies in longer marriages where one spouse sacrificed career development for family responsibilities.
- Rehabilitative alimony helps the receiving spouse return to school or learn skills that will increase their ability to find a good-paying job and support themselves. This time-limited support recognizes that with education or training, the spouse can become self-sufficient. Courts often set specific timelines based on educational program length.
- Restitutional alimony reimburses the receiving spouse for contributions made toward the other spouse's education or training received during the marriage. This compensates a spouse who supported the family while the other completed medical school, law school, or other professional training that enhanced their earning capacity.
Factors Courts Consider for Alimony
The judge will consider multiple factors when determining separate maintenance or alimony awards:
Standard of living during marriage
Courts attempt to help both spouses maintain lifestyles reasonably close to what they enjoyed during marriage, recognizing that two households cost more than one. Dramatic lifestyle changes are inevitable, but courts avoid leaving one spouse destitute while the other lives lavishly.
Earning capacity and financial resources
Each party's current income, education, job skills, work history, and employment opportunities influence awards. A spouse with a strong earning capacity may receive little or no support, while a spouse with limited job skills or a long absence from the workforce may receive substantial support.
Age, health, and general physical condition
Younger, healthy spouses are expected to become self-supporting more easily than older spouses or those with health conditions. A 60-year-old spouse with no recent work history faces different employment prospects than a 35-year-old with marketable skills.
Length of marriage
Longer marriages typically result in longer or permanent alimony awards. Marriages lasting 20, 30, or 40 years create greater economic interdependence and reliance, justifying extended support. Short marriages rarely result in long-term alimony.
Contributions to the marriage
Courts consider childcare, homemaking, supporting a spouse's education or career, and other contributions. A spouse who sacrificed career advancement to raise children or support the other's professional development may receive higher alimony.
Fault in causing dissolution
Unlike property division, fault CAN affect alimony. Judges may consider a spouse's fault in causing the marriage to end when awarding spousal support. An adulterous spouse may receive reduced alimony or none at all, while an abused spouse may receive enhanced support.
Any other relevant factors
Courts have discretion to consider circumstances specific to each case, ensuring awards reflect unique family situations.
Alimony Modification and Termination
Permanent alimony terminates upon the death of either party. It will also end when the receiving spouse remarries, though the paying spouse must file a motion with the court. Alimony will not terminate automatically in this situation.
Receiving temporary alimony during the divorce case does not guarantee post-divorce support. Courts make separate determinations about temporary and permanent support based on circumstances at different times.
Child Custody Influencing Factors
In divorces involving minor children, child custody represents one of the most emotionally charged and heavily influenced aspects of the divorce process. South Dakota courts prioritize the best interests of the child when making custody determinations.
Types of Custody
Courts distinguish between legal custody (decision-making authority about education, healthcare, religion) and physical custody (where the child lives). Parents may share joint legal custody while one parent has primary physical custody, or parents may share both types. These custody arrangements significantly influence the divorce process, as they affect living arrangements, child support calculations, and parenting schedules.
Best Interests of the Child Standard
South Dakota courts evaluate multiple factors to determine what custody arrangement serves the child's best interests:
Fitness of each parent
The court determines which parent is better equipped to provide for the temporal, mental, and moral welfare of the child. Relevant considerations include capacity to provide protection, food, clothing, medical care, and other basic needs; ability to give love, affection, and guidance; willingness to encourage frequent meaningful contact with the other parent; commitment to prepare the child for responsible adulthood; and exemplary modeling of good parenting, loving relationships, and responsible citizenship.
Stability
Which parent can provide a consistent and stable home environment influences custody decisions. The court considers the relationship and interaction of the child with parents, step-parents, siblings, and extended families; the child's adjustment to home, school, and community; which parent the child has formed a closer attachment to; and continuity, because when a child has been in one custodial setting for a long time, courts are reluctant to make changes.
Primary caretaker
The court determines which parent is more committed and involved in parenting the child. The primary caretaker is identified by determining which parent invested predominant time, care, and consistency in raising the child, evidenced by spending time with the child, preparing meals, playing, attending to medical care, choosing clothing, involvement in school, attending extracurricular activities, reading to the child, preparing birthday parties, knowing the pediatrician, consistent disciplining, arranging transportation, and providing appropriate clothing, foods, and toys.
Child's preference
If the child is of sufficient age to form an intelligent preference, the court may consider the child's wishes, though this is just one factor among many.
Harmful parental misconduct
When parental misconduct has a demonstrable effect on the child, the fitness of the culpable parent is considered. The relative fault of either party may only be considered if it's relevant to the fitness of the parent.
Keeping siblings together
Siblings and half-siblings should not be separated absent compelling circumstances, as maintaining sibling relationships benefits child development.
Child Support Considerations
Child support represents a more formula-driven aspect of family law, but multiple factors still influence final amounts.
South Dakota Child Support Guidelines
South Dakota uses child support guidelines that dictate the amount of child support the non-custodial parent must pay. These guidelines help ensure consistency across cases while accounting for individual circumstances.
Factors Affecting Child Support Calculations
The guidelines consider both parents' incomes (including wages, bonuses, commissions, self-employment income, rental income, and other sources), the number of children requiring support, healthcare costs and insurance premiums, childcare expenses enabling parents to work or attend school, extraordinary medical or educational expenses, and the custody arrangement (as shared parenting time may reduce support obligations).
Contested vs. Uncontested Divorce
Whether spouses can agree on divorce terms represents a major influencing factor affecting cost, duration, and outcomes.
Uncontested Divorce
An uncontested divorce is appropriate for couples who have already negotiated the terms of their divorce. Both parties agree on all major issues, including grounds for divorce, property division, spousal support, child custody, and child support. Not only is it less expensive than a contested divorce, but it is also less emotionally draining. Uncontested divorces typically involve only filing fees and limited attorney work, making them affordable and quick to finalize after the mandatory 60-day waiting period.
Contested Divorce
Petitioners who file a contested divorce do so because they can't agree on material terms. With a contested divorce, you must pay not only the filing fees but other expenses as well. Your family law attorney will spend hours negotiating a settlement agreement. You may also incur costs for depositions, private investigators, appraisers, mediation fees, custody evaluation fees, and expert witnesses. All of these factors significantly increase the cost and duration of divorce.
Attorney Representation and Legal Costs
Whether spouses hire attorneys and the quality of that representation influence divorce outcomes substantially.
When Legal Representation is Important
Some divorces appear straightforward at first, but without legal guidance, you may unknowingly give up rights or agree to unfavorable terms. Filing documents correctly, understanding evidence rules, and negotiating fair settlements all require legal insight. Even uncontested divorces benefit from attorney review, preventing costly errors or disputes later.
Cost Factors
Attorney fees vary based on whether the divorce is contested or uncontested, the complexity of property and custody issues, whether fault grounds require extensive proof, the time required for settlement negotiations or trial, and the attorney's experience and local rates. Each party is responsible for its own attorney fees unless the court orders otherwise. The court can order either party to pay all or part of the other party's attorney fees and costs.
In certain cases, filing fees and sheriff's fees may be waived for persons whose income is sufficiently low that they cannot afford to pay the fees, making divorce accessible regardless of financial circumstances.
Practical Considerations Influencing Divorce Outcomes
Beyond legal standards, practical realities influence how South Dakota divorces proceed and conclude.
Documentation and Evidence
The quality and completeness of financial documentation, property records, and evidence of contributions or misconduct significantly influence outcomes. Spouses who maintain good records, gather comprehensive financial information, and document important facts typically achieve better results than those with incomplete information.
Negotiation and Communication
Willingness to negotiate in good faith, communicate reasonably about disputes, and prioritize children's needs over parental conflict influences whether cases settle amicably or require expensive litigation. Couples who approach divorce collaboratively generally achieve better outcomes at lower cost with less emotional damage.
Timing and Strategy
When to file for divorce, how to approach temporary orders, which issues to prioritize in negotiations, and when to compromise versus litigate all influence final results. Experienced attorneys help clients develop effective strategies based on case-specific circumstances.
While every divorce case is unique, the factors courts consider remain relatively consistent. Whether pursuing an uncontested or contested divorce, addressing fault or no-fault grounds, or navigating complex property division and custody issues, knowing what influences court decisions empowers you to protect your interests and move forward successfully after divorce.