Grounds for divorce
Where to file / Venue of action
Report of divorces to department of health
Division of marital property
Child support / Custody
Spousal support / Alimony
South Dakota recognizes the following grounds for dissolution of marriage:
- Irreconcilable differences;
- Extreme cruelty;
- Willful desertion;
- Willful neglect;
- Habitual intemperance;
- Conviction of felony.
What is the difference between fault divorce and no-fault divorce?
An action for divorce or separate maintenance may be commenced in the county of residence of either party, subject to the right of the defendant to have the place of trial changed to the county where the defendant resides. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-30.1)
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.
Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-30)
The clerk of court in every county shall report information of each dissolution of marriage or divorce filed in the office of the clerk of court, on forms prescribed and furnished by the Department of Health and approved by the state court administrator of the Unified Judicial System. The forms shall be mailed or delivered to the South Dakota Department of Health within forty days after the entry of the final order or decree of the circuit court. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-51)
When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-44)
In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.
Normally, fault of either spouse shall not be taken into account with regard to the awarding of property or the awarding of child custody, except as it may be relevant to the acquisition of property during the marriage or to the fitness of either parent in awarding the custody of children. (South Dakota Domestic Relations Laws, Title 25, Chapters 25-4-45 and 25-4-45.1)
Child support is determined by the state guidelines, which is based primarily on the income of each parent. Income derived from the following sources is considered by courts:
- Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated;
- Self-employment income including gain, profit, or loss from a business, farm, or profession;
- Periodic payments from pensions or retirement programs, including social security or veteran's benefits, disability payments, or insurance contracts;
- Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;
- Gain or loss from the sale, trade, or conversion of capital assets; f) Unemployment insurance benefits;
- Worker's compensation benefits; and h) Benefits in lieu of compensation including military pay allowances. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-7-6.3)
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.
While an action for divorce is pending, the court may in its discretion require one spouse to pay as alimony any money necessary to support the other spouse or the children of the parties, or to prosecute or defend the action.
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. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-41)
In any custody or visitation dispute between parents, the court shall order mediation to assist the parties in formulating or modifying a plan or in implementing a plan, for custody or visitation and shall allocate the cost of the mediation between the parties. However, mediation shall not be ordered if:
- One of the parents has been convicted of domestic abuse;
- One of the parents has been convicted of assault against a person, except against any person related by consanguinity, but not living in the same household; or
- One of the parents has a history of domestic abuse; or
- Mediation is not readily available or the court determines that mediation is not appropriate based on the facts and circumstances of the case.
Mediator is appointed by court from a list of local qualified candidates. The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the parties of their right to review the agreement with counsel before they sign the agreement. After the agreement is signed by the parties, the mediator shall present the agreement to the court. The agreement is not binding upon the parties until approved by order of the court. (South Dakota Domestic Relations Laws, Title 25, Chapter 25-4-61)
If parties cannot come to an agreement the mediator may recommend to the court that the full hearing on the custody or visitation issue be held within thirty days. The mediator may not make a substantive recommendation to the court concerning the contested issue of custody or visitation. (South Dakota Domestic Relations Laws, Title 25, Chapters 25-4-62)
The court, upon or after granting a divorce from the bonds of matrimony to either spouse, may allow either spouse to resume prior name used by the spouse before the marriage.