By Christie Nicholson, J.D. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed March 19, 2024
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State law governs the South Dakota divorce process and dictates how the court handles divorce proceedings. The legal process for dissolving a marriage in South Dakota is similar to that of most other states.
Many people assume they can handle their divorce case themselves. It isn’t until they’re midway through the divorce process that they realize they’re in over their heads.
Here, we’ll explain the basic divorce process in South Dakota. We’ll discuss the legal requirements for divorce, such as the state residency requirements and waiting periods. We’ll also describe how the courts resolve issues such as spousal support, child support, and the division of marital property.
This article provides a brief overview of divorce laws in the state of South Dakota. Reference the chart below and the helpful links for further information.
South Dakota has the most lenient residency requirements when it comes to divorce. Most states require the petitioner to live in-state for months or even a year before filing for divorce, but the South Dakota courts only require you to live in-state when you file for divorce.
The court may require you to remain in the state during the divorce proceedings. Be aware that if your spouse lives in the state the two of you last resided in, the court may be limited to only granting you a divorce.
The South Dakota court may not have jurisdiction over issues such as child custody and support, or distribution of marital property that lies in the state where the other spouse resides.
In addition to having no residency requirements, South Dakota divorce law doesn’t require separation before divorce. You and your spouse can live together until the judge issues the decree of divorce. While most people getting divorced would rather not live with their spouse once they file, it’s good to know that this is an option.
One legal requirement the South Dakota courts impose is a mandatory 60-day waiting period. The judge cannot issue the final judgment for divorce until at least 60 days have passed since you filed your divorce papers. This “cooling off” period allows the parties to reconcile or modify the divorce settlement agreement.
It’s important to point out that the court can enter temporary orders concerning child custody, support, alimony (spousal support), and use of the marital residence during the waiting period.
South Dakota recognizes both fault and no-fault divorce. A fault-based divorce action allows the petitioner to blame the divorce on their spouse. With a no-fault divorce, you need only cite irreconcilable differences between you and your spouse.
South Dakota law recognizes six grounds for divorce, including:
You must submit evidence to back it up if you cite specific grounds for divorce. You cannot accuse your spouse of adultery or extreme cruelty without having concrete evidence of such misconduct. This is because marital misconduct, especially domestic violence, can affect the custody of minor children, alimony, and the division of marital property.
Once you decide whether to file a fault-based or no-fault divorce, you must determine the type of divorce you will file. There are two types - contested and uncontested. An uncontested divorce is appropriate for couples who have already negotiated the terms of their divorce. Not only is it less expensive than a contested divorce, but it is also less emotionally draining.
Petitioners who file a contested divorce do so because they can’t agree on the material terms of their divorce. Some of these include:
With a contested divorce, you must pay not only the filing fees but other expenses as well. For example, you’ll have to pay more in attorney fees. Your family law attorney will spend hours negotiating a settlement agreement. You may also incur costs for depositions, private investigators, and appraisers. It all depends on the facts of your case.
According to South Dakota Codified Law Section 25-4-41, the courts grant alimony to help the lower-earning spouse become self-supporting. It's not something the courts use to punish the spouse it orders to pay support. That doesn't mean adultery will not impact spousal support.
South Dakota divorce law recognizes three types of alimony - General, Rehabilitative, and Restitutional. These types of alimony are described as follows:
It's important to note that general alimony can be temporary or permanent. Temporary alimony is usually given to the lower-earning spouse to help support them during divorce proceedings. For example, if one spouse can’t afford a divorce attorney, the judge may order the other party to pay them temporary support.
Receiving temporary alimony during the divorce case does not guarantee post-divorce support. The court considers several factors to determine whether and for how long the lower-earning spouse will receive spousal support.
The judge will consider the following factors when determining separate maintenance/alimony:
If the judge orders alimony, they will specify the amount and duration.
Permanent alimony terminates upon the death of either party. It will also end when the receiving spouse remarries. In the case of remarriage, the paying spouse must file a motion with the court. Alimony will not terminate automatically in this situation.
In most divorce cases, the parties agree on child custody. If they cannot do this, the court will determine who has custody of the minor children. Usually, the parent who was the child's primary caretaker will retain primary physical custody. The parties almost always share joint legal custody.
South Dakota uses child support guidelines. These guidelines dictate the amount of child support the non-custodial parent must pay.
South Dakota is not a community property state. The court uses equitable distribution to divide marital property. According to South Dakota Codified Law Section 25-4-44, the courts determine the division of property based on equity and the parties' financial position.
Any property the parties acquire during the marriage will be subject to equitable distribution. This includes, but is not limited to, the following:
The court uses fairness to decide how it will divide marital property and liabilities. The parties get to keep their separate property. Separate property includes anything the parties brought into the marriage. It also includes gifts, inheritances, and personal injury awards/settlements.
While it's good to read the laws as written, the legalese can be somewhat difficult to interpret. Below find a plain language examination of South Dakota divorce laws.
South Dakota Divorce Code Section |
§ 25-4-1 et seq. of South Dakota Codified Laws |
|---|---|
Residency Requirements |
A plaintiff filing for divorce must be a state resident at the time the action is commenced |
Waiting Period |
60 days after service upon the defendant |
No-Fault Grounds for Divorce |
Irreconcilable differences |
Defenses to a Divorce Filing |
The responding spouse may also deny the allegations against them and present evidence to the contrary |
Other Grounds for Divorce |
|
Note: State laws are always subject to change through the passage of new legislation, higher court rulings, ballot initiatives, and other means. While we strive to provide the most current information, please consult an attorney or conduct legal research to verify your state’s laws.
Divorces can be legally and emotionally stressful, especially if you've never gone through the process before. If you have questions about South Dakota's divorce laws, speak with a divorce attorney in your jurisdiction.
Get started today by reaching out to an experienced South Dakota divorce attorney.
You can find more information about divorce, including how spousal support works and how marital property is divided, on these pages. Divorce can be a long, emotional process that involves considerable legal work. Getting legal advice from a local divorce lawyer should be the first step.
Contact a qualified attorney.
Get tailored divorce advice and ask a lawyer questions. Many attorneys offer free consultations.
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