If you are considering a divorce in South Dakota, it is important to understand the divorce laws and how they apply to your situation.
This overview will assist in growing your understanding of the divorce laws in South Dakota. Specifically, we’ll cover what happens with your debts, retirement plans, and much more.
Let’s get started:
- The Basic Divorce Laws in South Dakota
- How is the Division of Property Handled?
- Retirement Plans and Pensions
- Dividing Bank Accounts
- What About Debts?
- Gifts and Inheritance
- Determining Alimony (Spousal Support)
- How is Child Support Calculated?
- Figuring Out Child Custody
- South Dakota Divorce FAQs
The Basic Divorce Laws in South Dakota
As long as you are a resident of South Dakota when you file for a divorce, there are no other residency stipulations to meet jurisdiction requirements. You can get divorced in South Dakota based on either a no-fault premise or for fault-based reasons.
A no-fault divorce means that all you must do is cite irreconcilable differences for your divorce to be granted. You can cite a specific fault for your divorce such as neglect, adultery, desertion, or other reasons as well.
Marital assets and debts in South Dakota are divided according to equitable distribution. A court will determine was is fair and equitable using several factors, but the result may not always be an equal 50/50 split.
Child support is calculated using the Income Shares Model. The incomes of both spouses and which spouse has primary custody are taken into consideration are key factors when reaching a child support decision.
Alimony can also be granted on a temporary, short- or long-term basis. Courts have quite a bit of leverage in deciding alimony amounts and duration.
How is the Division of Property Handled?
South Dakota is an equitable distribution state. This means property from a marriage is divided fairly and equitably, but not necessarily on a 50/50 split. Couples and the courts consider many factors before reaching a final agreement.
Before the property can be divided, a determination must be made as to whether an asset belongs to both spouses or just one spouse.
For the most part, property acquired before marriage or after the date of separation is considered separate, including things like retirement accounts and business interests. This also applies to gifts and inheritances, as long as those assets are not commingled.
If a spouse requests alimony, that is determined separately and will have no impact on how property is divided.
Courts use seven factors to determine an equitable division of property in South Dakota. They are:
- The duration of the marriage
- The value of the property owned
- The ages of the parties
- The health of the parties
- The competency of the parties to earn a living
- The contribution of each party to the accumulation of the property
- The income-producing capacity of the parties’ assets.
Learn More: Who Gets the House in a Divorce?
Retirement Plans and Pensions
Pensions and 401k plans that are earned during a marriage are considered marital property and must be divided like other assets in Hawaii.
This means they are subject to fair and equitable distribution, but not equal distribution.
In many cases, couples negotiate in favor of keeping their pensions while giving up interests in other marital assets, perhaps their share of ownership in a home.
Placing an exact value on pensions and retirement accounts can be complicated and involve large sums of money. It’s not unusual to retain a retirement funds expert such as a certified divorce financial analyst, accountant, pension valuator, actuary, or business appraiser to reach an accurate figure.
Once the value for each spouse has been determined, each retirement account is split according to the settlement agreement. To do this, an attorney or a specialized firm must create a qualified domestic relations order, often referred to as a QDRO.
The QDRO spells out in detail how the retirement account will be split. It is submitted to the plan administrator and the court for approval. A QDRO, when executed, makes a spouse an alternate payee, and the account is divided according to the instructions in the document.
If you’re interested in getting a QDRO online, we suggest you try QDRO Counsel! Their comprehensive platform makes it quick and easy to draft a professional-level QDRO, and is our #1 choice for this service!
Read: How Retirement Accounts and Pensions are Divided in a Divorce
Dividing Bank Accounts
Bank accounts that were either set up or built up during a marriage are considered marital assets and must be divided along with other assets.
If you had a separate bank account before or after your marriage, and you did not commingle marital funds into it, then this is a separate asset and will not be subject to division.
Be aware that if you inherit money and place it into a marital account, then those funds could be considered commingled and subject to division.
What About Debts?
Debts in South Dakota are treated much the same way as assets in a divorce. Either the spouses must decide how they are to be divided, or the courts will decide for them.
Debts acquired during the marriage belong to both spouses. Again, they will be divided fairly and equitably, but not necessarily equally.
Also take into account that debts in both spouse’s names are the responsibility of both in the eyes of creditors. They do not care what your agreement is with your spouse. If your name is on it, then you owe it.
Gifts and Inheritance
Inheritance and gifts are considered separate assets in South Dakota. It does not matter when they were acquired.
They can become marital assets if a spouse commingles those assets into a joint bank account, or both spouses get use and enjoyment from them.
Unless you take protective steps, you could be at risk of having to divide those assets even though they were intended for only one of you.
Determining Alimony (Spousal Support)
Either spouse can seek alimony in South Dakota. Courts have a lot of discretion when determining amounts and duration. The goal is to make sure each spouse can be self-supporting following a break-up.
Courts can grant alimony on a temporary, short-term, or long-term basis. Temporary alimony is often granted while a divorce is in progress. Short-term alimony is granted to give a spouse time to get back up on their feet and gain necessary life skills. Long-term alimony is reserved for a spouse who has significant and ongoing needs. It is usually awarded only in long-term marriages.
The factors the court can use to determine alimony allowances are:
- the duration of the marriage
- the financial repercussions of each spouse
- the financial resources of each spouse
- the age of the spouses
- the health condition of the spouses
- the marital fault that caused the divorce, if any
Alimony is one of the primary reasons spouses pursue a fault-based divorce. Marital fault will have an impact on the duration and the award amount in many cases.
If circumstances change, a spouse can seek a modification or termination at any time. That spouse seeking the change will need to petition the court and present evidence to support their claim.
Read: Everything You Need to Know About Alimony
How is Child Support Calculated?
South Dakota has established Child Support Guidelines that are followed unless there are factors supporting the need to adjust support. Those factors include:
- the financial condition of either parent would make the guidelines unjust
- income tax consequences
- special needs of the child
- income from others besides the parents
- the effect of the custody and visitation decisions
- an agreement between the parents that provides other forms of support that benefit the child
- a voluntary reduction in the income of either parent
- any other obligations of financial support for subsequent children
Child support is calculated using a Child Support Worksheet and is based on the Income Shares Model. The combined incomes of both parents are calculated, along with which parent has custody to come up with an amount each parent is responsible for.
Other obligations such as health insurance, childcare expenses, and other life costs are factored into the equation before reaching a final monthly support amount.
The South Dakota Division of Child Support is responsible for ensuring that children in a divorce are financially protected. They can assist parents with support enforcement, establishing paternity, modifying support, and collecting and processing support payments.
Figuring Out Child Custody
Courts always consider child custody in the broad terms of the best interests of the child in a divorce.
Family courts will give parents the opportunity to try and work out an acceptable custody agreement, but reserve to right to review and reject any plan that is not fair and just.
Both legal and physical custody need to be determined. Physical custody is the place and parent where a child lives (custodial parent). Legal custody is which parent is responsible for making the major decisions in a child’s life, such as medical decisions, church and school attendance, and other important issues.
Often times, legal custody is shared jointly.
Specifically, South Dakota courts must consider:
- the child’s wishes or preferences as to custody, provided that he or she is mature enough to make such claims (usually 12 or older)
- the parents’ wishes or preferences as to custody
- the child’s medical, dental, education, and other needs
- the child’s moral and mental well-being
- the child’s physical residence
- the parent’s plan to care for other responsibilities for the child’s benefit
- a history of domestic violence, child abuse, negligence, or substance abuse
- the results of any investigation results regarding the care and welfare of the parents’ minor children
- the testimony of any person or expert who can testify what is best for the child
Before a custody agreement can be finalized, courts will often require that parents take a mandatory parenting class to help them and the children ease into the transition of divorce.
Need help with co-parenting after separation? Our Family Wizard is the perfect app to help! Specially designed to mitigate issues between ex-spouses, Our Family Wizard provides communication and scheduling services (and much more) that will be incredibly helpful for you and your child.
Read: The Psychological Effects of Divorce on Children (and How to Help Them Cope)
The Impact of Substance Abuse
Substance abuse does impact custody issues. If a parent’s abuse puts a child in danger, then visitation can be restricted or fully denied.
Parents may have to go through rehabilitation and prove they are not a threat before privileges can be fully restored.
What Role Does Domestic Violence Play?
Domestic violence also has an impact on divorce child custody in South Dakota. When abuse or neglect is present, custody, visitation, and other rights may be severely curtailed on completely denied.
If you are experiencing domestic violence and you are in immediate danger, call 911. Do not hesitate. Vacate your premises if you need to and seek a safe place.
Keep in mind that domestic violence can take many forms above and beyond simply physical abuse. It can also include threats, psychological abuse, or malicious property damage and can be perpetrated on any family member, not just a spouse.
To protect you and your family members, you can seek an immediate temporary restraining order (TRO). If a dangerous spouse fails to follow the terms of the restraining order, it can result in fines and jail time.
Learn: Financial Abuse in Marriages: Warning Signs and How to Get Help
South Dakota Divorce FAQs
How is adultery treated South Dakota divorce laws?
Adultery can be cited as one of the fault-based reasons to get a divorce in South Dakota. It may be used as a point of leverage to negotiate a more favorable settlement in some cases.
What is a bifurcation of marital status, and how does it work?
In rare cases, courts in South Dakota courts will allow a couple to divide a divorce into two separate legal actions known as a bifurcated divorce. Judges sometimes grant this action when most issues can be resolved, but for one reason or another, a few outstanding issues remain.
The couple remains married, but issues such as alimony, child support, and dividing assets are resolved.
Judges are reluctant to grant bifurcated divorces because of judicial inefficiencies and because there is less incentive to finalize a divorce. There must be a compelling reason for two separate court actions.
What is a financial affidavit?
To ensure assets are divided fairly and alimony and child support are appropriate, each spouse must complete a financial affidavit. This is a notarized statement attesting to your assets, debts, liabilities, income, and other obligations
What about health insurance during and after divorce?
In South Dakota, you may be required to continue providing health insurance for your spouse and children while a divorce is in progress.
After a divorce, your ex-spouse can’t generally stay on your health insurance policy if that’s where coverage was provided.
Your ex-spouse can get coverage other places, possibly through COBRA or South Dakota’s insurance marketplace.
In almost all cases, children must be covered by health insurance which is the responsibility of both parents. This is often negotiated as part of the settlement agreement.
Are there special rules and considerations for military divorces?
If you or your spouse are in the military and either live or are stationed in South Dakota, some parts of your divorce will be the same and some parts will be different. Grounds for a military divorce are the same as they are for a civilian divorce.
If you are an active service member and your spouse serves papers on you, it’s possible to delay your response if your military service conflicts with handling your divorce. You can do this for the entire time you are active duty, plus an additional 60 days after your active service ends. This is a protection afforded under the Servicemembers Civil Relief Act.
But if the active service member agrees, and the case is uncontested, the active duty spouse may not have to be served. Instead, he or she can simply sign a waiver to acknowledge the divorce.
Each branch of the military has legal assistance on most bases. This does not include representing a service member or their spouse in a divorce action, but resources are available to answer questions and provide guidance for both people.
Child support is the same as it is in civilian divorces in South Dakota. Federal protection limits this support to no more than 60% of a service member’s pay and allowances.
Non-military spouses can get health care coverage under TRICARE if they were married for least 20 years during the member’s active service. This is often referred to as the 20/20/20 rule. Lifetime TRICARE coverage is dependent on the former spouse remaining unmarried. If the former spouse remarries, they will lose TRICARE coverage permanently.
A military version of COBRA health coverage is available. The Continued Health Care Benefit Program (CHCBP) provides that when a military member leaves the service, the former spouse who buys CHCBP is covered for 36 months after the date of divorce, and sometimes longer.
Military pensions can be shared by whatever means a judge thinks is fair. Federal laws prevent the distribution of the military member’s retirement assets to a spouse unless they were married 10 years or more while the member was on active service.
Military service members and their spouses often consult with an attorney who specializes in military divorces to provide clarity for this complicated legal situation.
Read: Laws Governing Military Divorces
What if my spouse does not respond to any divorce actions in a timely way?
When a spouse does not respond within 60 days after they have been served with the Summons and Complain, a plaintiff can file an Affidavit of Default, UJS 320, and a Motion for Default Judgment.
A copy of the Affidavit of Default and a Notice of Intent to Take Default Judgment, are mailed to the non-responsive spouse. The Notice of Intent to Take Default Judgment and alerts them that the court action will move forward without their input.
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