South Dakota Alimony

Jason Crowley, CFA, CFP, CDFA
Jason Crowley, CFA, CFP, CDFA
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South Dakota Alimony

Here’s what you need to know about alimony in South Dakota.

Who is Entitled to Alimony in South Dakota?

Alimony is money one spouse pays the other to make sure the receiving spouse can maintain a reasonable lifestyle during and after a divorce has been finalized. It is also known as spousal support or spousal maintenance, all of which mean the same thing.

Alimony is intended to help provide for the basic needs of the receiving spouse, such as clothing, food, shelter, and transportation and help them maintain a lifestyle similar to that of the marriage.

It is only awarded when there is a demonstrated need and the higher-income spouse has the ability to pay.

Types of Alimony in South Dakota

A spouse can petition for alimony at different times during a separation or divorce proceeding.

The request can be included in the initial filing of separation or divorce papers or while the divorce is pending.  However, alimony is not an automatic part of the process, and a spouse must petition the court to start the alimony process.

A state of South Dakota judge may order alimony prior to the final divorce decree so that the financial needs of the receiving spouse may be met while the divorce is pending. A spouse may request alimony during a separation without seeking a divorce.  This type of alimony is called separate maintenance.  These are commonly referred to as pendente lite actions and they will end when the divorce or separation is finalized.

As part of the final divorce decree, the court can award the following types of alimony.

Rehabilitative alimony. The purpose of rehabilitative support is to provide a spouse with financial assistance and time to acquire job training or education that will lead to employment and financial independence. Rehabilitative support is common in cases where one spouse left a job to raise a family or to support a spouse’s career.  This type of support lasts for a set period of time and typically terminates when the receiving spouse becomes employed.

Restitutional alimony. South Dakota judges may order restitutional alimony to reimburse one spouse’s contribution during the marriage while the other pursued advanced training or education. For example, restitutional support may be appropriate if one spouse worked full-time while the other attended law school.

Permanent alimony. Permanent alimony is awarded to spouses who can’t become financially independent after the divorce. It typically ends when one spouse dies, or the receiving spouse remarries. Although the court expects both spouses to be self-supporting, the court may award permanent support to a spouse unable to work due to advanced age, mental or health disability, or a lengthy absence from the job market.

Spouses can also create their own alimony agreement.  Instead of putting the matter in front of a judge, this gives them more control over deciding financial support matters and how to award alimony.

Alimony awards are typically paid monthly or quarterly, but in some cases, a judge may order a lump sum payment if the paying spouse has the means.

Read More:  How to File for Divorce in South Dakota

What Factors Are Used to Determine Alimony?

Courts consider several factors when deciding the amount and duration of an alimony award.  Those factors include:

  • Whether the spouses were legally married
  • The length of time that the marriage lasted
  • Each spouse’s contribution to the marital assets
  • The financial background of each spouse
  • The current financial situation of each spouse after maritial property is divided
  • The earning capacity of each of the spouses at the time of the divorce
  • Child custody issues and the amount of child support ordered
  • Whether either spouse has cohabitated with a new partner or remarried
  • The age, physical and mental health of the spouses
  • Marital fault

If rehabilitative alimony or restitutional alimony is considered, the court determines the contributions of the paying spouse during the marriage, the paying spouse’s lost opportunity to advance vocational skills due to their marital responsibilities, and the length of the marriage after that spouse attained a professional degree.

There are no formulas used to calculate exact amounts of alimony.  Judges have a high degree of discretion to decide each case on its merits within the framework of South Dakota divorce laws.

Modifying or Terminating Spousal Support in South Dakota

Ex-spouses can request a modification of the alimony terms at any time. However, if the spouses agree in writing that the award is “non-modifiable,” the court will not review it in the future.

Judges will need to see a significant change in circumstances since the initial divorce award.  That could be due to a job loss, a major change in income up or down, the onset of a long-term illness or disability, remarriage, cohabitation, or other similar life events.

Keep in mind that modifications start with a request to the court.  The petition must include evidence that a modification is necessary based on a substantial change that has occurred since the order was made. That may consist of evidence the individual was laid off or retired.

The duration of alimony depends on what the court deems is just, which considers the circumstances and evidence presented by the parties. In some cases, alimony has a short duration, and in others, it lasts until the death of the recipient spouse. The court has the discretion to modify the terms of an alimony order if the circumstances of the parties change.

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Enforcing South Dakota Alimony Awards

The debt goes into arrears if you do not follow a court order to pay spousal support, the debt goes into arrears.  The court can collect the debt on behalf of the supported spouse through small claims court, mediation, or wage garnishment.  Courts can also attach liens to bank accounts and real property or take other enforcement measures to ensure full payment occurs.

Non-payment can also result in contempt of court charges which could lead to fines, paying court costs, and jail in some cases.

Spousal Support and Taxes

Due to recent changes in Federal laws, the payer cannot deduct support payments under a divorce or separation instrument executed after 2018. These payments are also not included as taxable income for recipients.

The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018 if the modification expressly states that the alimony isn’t deductible to the payor spouse or included in the income of the supported spouse.

Taxpayers who pay alimony under a divorce agreement executed before 2019 can deduct those payments from taxes when the following criteria are met:

  • The recipient must be a spouse or former spouse
  • There must be a written divorce or separation instrument
  • Alimony must be made with cash payments (such as checks and money orders)
  • Maintenance does not continue after the recipient dies
  • The parties must live apart, residing in different households
  • The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction)
  • The court-ordered payment of alimony cannot state that payments are not deductible

Read More:  How Retirement Accounts and Pensions are Divided in a Divorce

South Dakota Alimony FAQs

Does adultery affect alimony in South Dakota?

While some states have no-fault policies about divorce, South Dakota considers each spouse’s fault in the marriage breakdown. Therefore, the requesting spouse can be denied spousal support due to infidelity.

If you want the court to factor in a spouse’s extramarital affair, you will have to provide evidence that it occurred.  Also, the more the affair had an impact on the breakdown of the marriage, the more the alimony award might be considered by the court.

Infidelity does not directly impact property division during the divorce process but if a spouse spent large sums of marital money on an affair, the court may give less property to that spouse as a result.

What impact does a prenuptial agreement have on alimony?

A prenuptial agreement is considered a valid contract.  As such, if a provision in the agreement is that no alimony will be paid if a divorce takes place, the courts will honor that contractual agreement and no maintenance will be awarded.

Helpful Resources

Jason Crowley, CFA, CFP, CDFA
Jason Crowley, CFA, CFP, CDFA

Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.

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