Notes: This section contains selected divorce statutes, selections from statutes and general guidelines for South Dakota. Some may not be relevant to your case but are presented here as a general overview. The selected statutes and portions of statutes set out below are not intended to be an all-inclusive statement of the South Dakota divorce statutes.
Grounds
Divorces may be granted for any of the following seven (7) causes:
(1) Adultery;
(2) Extreme cruelty;
(3) Willful desertion;
(4) Willful neglect;
(5) Habitual intemperance (i.e.- habitual drunkeness 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. (25-4-18)
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. 25-4-2
Residency
Residence requirements for divorce or separate maintenance. The
plaintiff in an action for divorce or separate maintenance 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. 25-4-30
Mediation
After a motion for divorce is filed a judge may determine that
there is a chance of reconciliation and may order mandatory mediation for
the spouses. Also one of the spouses may tell the court they think things
can be worked out and may ask the court to have a hearing to see if the
marriage is truly irretrievable. If the court concludes that there is a
chance for the marriage to be repaired and there are minor children, the
court may delay the proceedings for 30 days for an attempt at reconciliation.
Property division
State statutes now provide for the "equitable" distribution of
the marital property of the marriage at the time of the final divorce between
the parties. "Marital Property" is defined as all jointly owned property
and all other property, other than separate property, acquired by either
or both of the parties during the marriage and up to the time of the final
separation of the parties. "Separate Property" is property owned by one
party at the time of the marriage or inherited property or gifts to one
party from a third person and maintained as separate property. Where "Marital
Property" and "Separate Property" are mixed together or where "Separate
Property" is increased through the active efforts of either party during
the marriage, then such property may be classified as "Part Marital" and
"Part Separate" property. In making its equitable distribution awards the
courts are not only authorized to make monetary awards to one of the parties,
but may also divide or order sold or transfer jointly owned marital property
to one of the parties.
The assignment of fault may make a difference in terms of a court's final determination of the division of property. If one party is determined to be at fault for the breakdown of the marriage, then the court may award the other party more property. 25-4-44
Spousal Support ("Alimony")
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. 25-4-41
Child Custody
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. 25-4-45
Child Support
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.
Settlement Agreement
A settlement agreement is a written contract between the parties
that sets forth their rights, duties and obligations that arise out of
their separation and divorce and may include such things as the division
of their property, spousal support, attorney's fees, custody of their children
and child support. Such agreements are encouraged since they may amicably
settle the rights of the husband and wife in the estate and property of
the other.
Name Change
Restoration of former name to wife. Whenever a decree of divorce
is granted, the trial court may, in its discretion or upon the application
of either party by the terms of the decree, restore to the woman her maiden
name or the name she legally bore prior to her marriage to the husband
in the divorce suit. 25-4-47
No-Fault Agreed Uncontested Divorce Package for Dissolution of Marriage for people with Minor Children
No-Fault Agreed Uncontested Divorce Package for Dissolution of Marriage for Persons with No Children with or without Property and Debts
No-Fault Uncontested Agreed Divorce Package for Dissolution of Marriage with Adult Children and with or without Property and Debts
