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South Dakota Divorce Laws

Parents are offered the opportunity to craft a Parenting Plan and Child Visitation Schedule, but should those efforts fail and disputes remain, the family court will intervene. In custody disputes between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interest of the child.

If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. Guided by South Dakota divorce laws, the family court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.

In awarding SD child custody, the court will be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody. Fault will not be taken into account with regard to the awarding of property or the awarding of child custody, except as it may be relevant to the  acquisition of property during the marriage or to the fitness of either parent in awarding the custody of children. 

Download South Dakota Divorce Forms

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-3-11, 25-4-25, 25-4-45.1, 25-5-7]

A South Dakota marriage annulment is a decree ending an illegal marital relationship, while a divorce is the termination of a legal marriage. The marriage annulment process (sometimes called a marital annulment) is similar to the divorce or separation processes in that you petition the court citing grounds for a marital annulment, and prove your claim with evidence. The burden of proof is greater for an annulment than a divorce, however. SD requires citing a ground for the annulment petition. Acceptable grounds for annulment include:

• Fraud - You can obtain an annulment in SD if your spouse got your consent for marriage by fraud or by misrepresenting him or herself,
• Mental Illness - SD annulment laws state that a mentally incapacitated person can’t enter into a marital contract. If your spouse is mentally incapacitated, you can obtain an South Dakota annulment,
• Underage Marriage - Based on South Dakota annulment laws, any person that has not attained the legal marriageable age specified by SD marriage laws, he or she can’t get married. However if your marriage occurred anyway, you can get your marriage annulled in SD,
• Incest - Entering a marriage with someone who is too closely related to you, SD annulment laws restrict marital contracts from such individuals and
• Impotency - Impotence is a valid annulment ground according to SD annulment laws. If your spouse is impotent, you can get your a SD marital annulment.

[South Dakota Laws - Volume 9A - Title 25 - Chapters 25-1-1, 25-3-1, et seq. 25-1-8]

Either or both parents may be ordered to provide child support. There are official child support guidelines set by South Dakota divorce laws (sometimes referred to as divorce statutes), and upon request for deviation, they can be altered based on the following considerations:

• The financial condition of either parent that would make application of the schedule inequitable,
• Income tax consequences,
• Any special needs of the child,
• Income from other sources,
• The effect of custody and visitation provisions child support,
• Childcare expenses necessary to obtain employment, education, or training,
• Agreements between the parents which provide other forms of support for the direct benefit of the child child support,
• A voluntary reduction in the income of either parent, and
• Any other support obligations of a parent. The parents of a child are jointly and severally (individually) obligated for the care and support of the child.

Until established by a court order, the minimum South Dakota child support obligation of a parent who has left the home, is the obligor's share of the amount shown in the support guidelines, beginning on the first day of the absence. South Dakota courts will consider the following to determine income:

• The monthly gross income of each parent,
• Self-employment income,
• Periodic payments from pensions or retirement programs,
• Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets,
• Gain or loss from the sale, trade, or conversion,
• Unemployment insurance benefits,
• Worker's compensation benefits, and
• Benefits in lieu of compensation including military pay allowances.

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-3-11, 25-4-38, 25-4-45, 25-7]

A South Dakota legal separation means the husband and wife are living apart and has the added element that the arrangement is ordered by the court or agreed to by the parties in a written agreement. The fact that the legal separation (also known as a marital separation or divorce separation) is part of a court order or written agreement makes it a "legal separation”. Legal Separations require a separation agreement agreed to by the parties. The legal separation makes more certain the rights and responsibilities of the parties during the period of separation as opposed to an informal separation.

Payments of support during a period of separation sometimes are called temporary maintenance or alimony pen dente lite. The separation (informal or legal) keeps the marital status intact until or unless one files for divorce. Legal separation is often pursued when one of the parties wants to stay married for religious reasons, wants the advantage of deductibility of spousal support payments for income tax reasons, wants to maintain various insurance coverage's, or do not want to wait the state statutory waiting period for termination of marital status. 

 

 

One does not need to get a legal separation in order to divorce. In fact, most bypass the legal separation and go straight to the divorce. The marital separation can last the life of the parties, without conversion to a divorce, until or unless someone files to convert the separation into a divorce.

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-54, 25-4A-1, 25-4A-2, 25-4A-16]

South Dakota is an equitable distribution state. SD divorce laws mandate that the courts divide the marital property between the parties in an equitable and just manner. This means the court will attempt to divide the marital assets fairly, but not necessarily evenly. As is always the case, if you and the divorcing spouse can agree on a divorce settlement of marital assets and liabilities first, the court won't have to.

Did you come into this marriage owning a house? Concerned about the equity in that house that you brought into the marriage? Worried about property that was yours before the marriage and that it may now be part of a divorce settlement? Here's how it works generally. What you brought into the marriage is usually all yours. However, any appreciation of the house or the property value is normally treated as a "marital asset", meaning that you will likely forfeit a third to a half of that appreciation to your spouse in the divorce.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-44, 25-4-45]

When a divorce is granted, the wife will be restored to her maiden or former name if she so desires. The court will enter its decree confirming in each spouse the property owned by him or her before marriage and the undisposed-of property acquired after marriage by him or her in his or her own right. Either spouse may be allowed such alimony out of real and personal property of the other as the court shall think reasonable.

South Dakota courts may issue orders for alimony (sometimes called spousal support or maintenance) for a definite period, or an indefinite period. 

 

 

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-42, 25-4-44, 25-4-45]

During a proceeding for separation or dissolution, parties are afforded the opportunity to arrive at and agree to a Parenting Plan and Child Visitation Schedule. Should they be unable or unwilling to agree, the court will impose a visitation schedule on them. Features commonly found in a South Dakota visitation agreement that addresses the non-custodial parent's visitation with the children include: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication by phone and computer.

You may find it difficult to put together all the details you might want in a parenting agreement. It is easy to overlook small details that can become big issues later. Sitting down with your divorcing spouse would make it simpler, if you can do that. If you and your spouse can agree on a parenting schedule, leave nothing to interpretation. Be as specific as you can including the right language in your agreement. How is the custody defined? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children?

If this seems altogether too much to put together, there is a much easier solution. Open an account with an online parenting plan provider. You'll realize over time that it is money well spent.

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-54, 25-4A-1, 25-4A-2, 25-4A-16]

The district court, guided by South Dakota divorce statutes, may grant a divorce for any of the following causes (grounds for divorce):

• Abandonment for one (1) year,
• Adultery,
• Impotency,
• At the time of her marriage, wife was pregnant by another, other than her husband,
• Extreme cruelty,
• Fraudulent contract,
• Incompatibility,
• Habitual drunkenness,
• Gross neglect of duty,
• Imprisonment of the other party in a state or federal penal institution,
• Insanity for a period of five (5) years

 

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-2, 25-4-17, 25-4-18]

Either the plaintiff or the defendant must have been an actual resident for six (6) months next prior the filing of the petition. United States military personnel are afforded the same 6 month requirement according to South Dakota divorce statutes and federal law.

 

 

 

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-30, 25-4-30.1, and 25-4-34]

In an action for divorce where there are minor children involved, the court will not issue a final order for at least ninety (90) days from the date of filing the petition. In the event no minor children are involved and there is full agreement by the parties, your divorce can be completed in as little as ten days. South Dakota divorce statutes specify that the court may require that within the ninety-day period the parties attend and complete an educational program.

There are no restrictions against remarriage following a final divorce decree.

 

In all actions for divorce, separate maintenance, guardianship, paternity, custody or visitation, including modifications or enforcement's of a prior court order, where the interest of a child under eighteen (18) years of age is involved, the court may require all adult parties to attend an educational program concerning, as appropriate, the impact of separate parenting and co-parenting on children, the implications for visitation and conflict management, development of children, separate financial responsibility for children and such other instruction as deemed necessary by the court. The court can order mediation if it feels it is warranted. Marriage counseling, while not state-sponsored, should always be considered if there is still some hope the marriage can be saved. 

 

[South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-56]

Grandparents of an unmarried minor child will have reasonable rights of visitation to the child if the court deems it to be in the best interest of the child. (This right is conferred by federal statute) The right of visitation to any grandparent of an unmarried minor child will be granted unless it has been specifically denied by the court.

For visitation to be granted, the court must find one of the following two conditions present:

• the child's parent or guardian has denied visitation or has prevented the grandparent from having a reasonable opportunity for visitation
• the visitation will not significantly interfere with the parent-child relationship

If a child is born out of wedlock, the parents of the father of such child will not have the right of visitation unless the father has been judicially determined to be the father of the child.

If one natural parent is deceased and the surviving natural parent remarries, any subsequent adoption proceedings will not terminate any court-granted grandparents rights belonging to the parents of the deceased natural parent. 

 

 

 

[South Dakota Laws - Volume 9A - Title 25 - Section 25-4-52, 25-4-54]