South Dakota Divorce Laws
The state of South Dakota has unique divorce laws for people who wish to terminate their marriage.
We are providing this online divorce information to you as an easy divorce reference guide to help you while you are doing your own divorce. This information (and much more) is available inside your personal 3StepDivorce account area in order to help you understand how South Dakota addresses the most important issues in the divorce process and certain elements throughout your divorce forms.
The following overview of South Dakota divorce laws will help you understand the filing procedure and other primary issues concerning your divorce. Please keep in mind that our South Dakota online divorce service and support staff will make the process easy for you from start to finish. We take the difficulty out of doing your own divorce.
Residency Requirements: In order to file for a divorce in South Dakota, you or your spouse must meet the strict residency requirements. These requirements permit the court to have jurisdiction of your case, resulting in allowing you to use their judicial system. These requirements are only a concern for spouses who have recently relocated or plan to relocate in the near future. They are as follows:
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. The divorce may be filed in the county in which either spouse resides. The defendant has a legal right to have the case transferred to his or her county if desired. There is also a 60 day waiting period that must elapse after the date of filing before the divorce will be granted. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-30, 25-4-30.1, and 25-4-34)
No-Fault Grounds: Most uncontested divorce cases are filed according to a "no-fault" ground. We are using the term "no-fault" in a generic fashion by labeling all grounds that do not actually declare a "fault" as "no-fault". In the state of South Dakota the "no-fault" grounds are as follows:
(1) Irreconcilable differences. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-2, 25-4-17, 25-4-18)
Filing Party Name: The Plaintiff. This is the spouse who is recognized as the initiator of the divorce and is the one who actually files the Complaint for Divorce with the county court.
Non-Filing Party Name: The Defendant. This spouse plays a lesser role in an uncontested divorce versus a contested divorce. He or she will be required to sign and/or respond in a timely fashion to the documents filed by his or her spouse.
Family Law or Domestic Relations Court: State of South Dakota, County of __________, In the Circuit Court, __________ Judicial District. All divorce cases in the state of South Dakota are facilitated through this court for that particular county.
Clerk's Name: All correspondence with a South Dakota clerk of the court should formally address him or her as follows: Office of the Clerk of the County Circuit Court.
Property and Debt Division: South Dakota is considered an "equitable distribution" state. If you and your spouse are unable to come to an agreement on how the marital property will be divided, the court shall use a three step process. First, it will determine what property is marital. Second, it will put a value on the marital property. Third, it will divide the marital property in an equitable fashion, which is not necessarily equal, but rather what is considered to be fair.
The courts will consider the following factors when making a property award upon divorce; the contribution each spouse had to the acquisition of the marital property; the value of each spouses separate property; the amount of time the spouse have been married; the age and health condition of each spouse; the current and future earning capacity of each spouse; and the value of the property being distribution as well as the income potential of that property.
Fault shall not be taken into account with regard to the awarding of property, except as it may be relevant to the acquisition of property during the marriage.
(South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-44, 25-4-45)
Changing Name: 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. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-47)
Spousal Support, Maintenance, or Alimony: Determining the amount of spousal support, if any, is not as objective as determining child support. Spousal support, whether permanent or temporary, is typically decided on a case-by-case basis, because it is very likely that unique circumstances and factors regarding the marriage and the property award will play a significant role in allowing the court to arrive at the appropriate amount.
Allowance for support when divorce granted. Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects. The factors the court will consider when establishing a support award are as follows; the length 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; and the marital fault that caused the divorce if any.
The department shall enforce the support obligation due to a spouse or former spouse who is living with his or her child, but only if a support obligation has been established for the spouse and the child support obligation is being enforced. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-4-42, 25-4-44, 25-4-45)
Custody and Visitation: Shared or joint child custody has become more and more popular with the South Dakota courts. If you and your spouse request to have joint or shared "legal" custody, it will almost always be granted. As for joint or shared "physical" custody, the court will examine this a bit more closely to determine if it is a realistic choice that would result in an arrangement that is best for the children.
Any agreement by the parties for visitation other than the standard guidelines shall be in writing, signed by both parties and filed with the court. The agreed plan shall be approved by court order and replace the standard guidelines or any plan previously filed.
The court will award sole or joint custody based on the standards of what is in the best interests of the children. The court will consider the following; marital misconduct only if it is relevant to the further well being of the child; the child wishes depending on age and maturity; and the expressed desires of the parents. The court will not discriminate based on the parents gender. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-3-11, 25-4-25, 25-4-45.1, 25-5-7)
Determining Child Support: The basis for determining a monthly support amount is best achieved by referring to the South Dakota child support worksheet. The worksheet utilizes the child support guidelines that are defined by state law. The court will use this same worksheet as a building block for determining the support obligation, that is if you and your spouse are unable to come to an agreement on this issue.
Child support is determined by the state guidelines, which is based primarily on the income of each parent. Income is defined as follows: (A) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated; (B) Self-employment income including gain, profit, or loss from a business, farm, or profession; (C) Periodic payments from pensions or retirement programs, including Social Security or Veteran's Benefits, Disability payments, or insurance contracts; (D) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets; (E) Gain or loss from the sale, trade, or conversion of capital assets; (F) Unemployment insurance benefits; (G) Worker's Compensation benefits; and (H) Benefits in lieu of compensation including military pay allowances.
The court may enter an order allocating the reasonable child care expenses for the child, which are due to employment of either parent, job search of either parent, or the training or education of either parent necessary to obtain a job or enhance earning potential. The court may consider whether the Federal Child Care Tax Credit for such minor child is available as a benefit to the custodial parent. If the Federal Child Care Tax Credit is available to the custodial parent, it shall be calculated at twenty-five percent of the eligible expense. (South Dakota Laws - Volume 9A - Title 25 - Chapters: 25-3-11, 25-4-38, 25-4-45, 25-7)
Copyright Notice: These South Dakota divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.
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