The spouse filing for divorce must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of the filing and must remain a resident until the divorce is final. There is no durational residency requirement. The divorce may be filed for in the county where either spouse resides, but the defendant has the right to have it transferred to his or her county of residence if desired. In addition, there is a 60-day waiting period after filing before a hearing will be held or the divorce will be granted.
Legal Grounds for Divorce in South Dakota
- No Fault Divorce: Irreconcilable differences which have caused the irretrievable breakdown of the marriage.
- General Divorce:
- conviction of a felony
- willful desertion
- cruel and inhuman treatment
- willful neglect
- habitual intemperance
Legal Separation in South Dakota
The grounds for legal separation (separate maintenance) in South Dakota are the same as for divorce. The spouse filing for legal separation must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of the filing and must remain a resident until the legal separation is final.
Simplified/Special Divorce Procedures in South Dakota
If both spouses consent to the use of "irreconcilable differences" as the grounds for divorce, the court may grant the divorce based entirely on affidavits of the spouses which establish the required residency and grounds for the divorce. In such cases, a personal appearance in court by either of the spouses will not generally be required.
Divorce Mediation in South Dakota
If the court determines that there is a reasonable possibility for reconciliation between the spouses, the divorce proceedings can be delayed for up to 30 days while the spouses seek counseling.
Divorce Property Distribution
South Dakota is an "equitable distribution" state. All of the spouse's property is equitably divided by the court. Marital fault is not to be considered unless it is relevant to the acquisition of property during the marriage. The only factor specified in the statute is a consideration of the equity and circumstances of the spouses. South Dakota courts have interpreted this to include the following factors for consideration:
- the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker
- the value of each spouse's property
- the length of the marriage
- the age and health of the spouses
- the present and potential earning capability of each spouse
- the value of the property
- the income-producing capacity of the spouse's assets
Alimony and Spousal Support
Either spouse may be awarded maintenance for life or a shorter period. The only factor specified in the statute is a consideration of the circumstances of the spouses. South Dakota courts have interpreted this to include the following factors for consideration:
- the duration of the marriage
- the ability of the spouse from whom support is sought to meet his or her needs while meeting those of the spouse seeking support
- the financial resources of the spouse seeking maintenance, including marital property apportioned to such spouse and such spouse's ability to meet his or her needs independently
- the comparative financial resources of the spouses, including their comparative earning abilities in the labor market
- the age of the spouses
- the physical and emotional conditions of the spouses
- the fault of the spouses during the marriage
Spouse's Name After Divorce
Upon request or on the court's own initiative, a wife's former or maiden name may be restored.
Child Custody After Divorce
Sole or joint child custody is to be awarded based on the discretion of the court and the best interests of the child. Fault is not to be considered unless it is relevant to the fitness of a parent to have custody. Neither parent is considered the preferred parent based on the parent's sex. The preference of the child may be considered. In joint custody decisions, the court may consider the expressed desires of the parents and the best interests of the child. No other specific factors are specified. There are specific Child Visitation Guidelines established by the South Dakota Supreme Court which shall be used to establish visitation schedules, unless the parents provide a signed agreement providing otherwise.
Child Support After Divorce
Either or both parents may be ordered to provide child support. There is an official child support obligation schedule set forth in the statute. Deviation from the official schedule may be based on a consideration of the following factors:
- 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 persons
- the effect of custody and visitation provisions
- 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
- a voluntary reduction in the income of either parent
- any other support obligations of a parent