South Dakota Marital Property Laws

South Dakota is one of 40 equitable distribution states. In these states, courts divide marital property fairly rather than equally in a divorce case. All property acquired during the marriage is marital property, no matter whose name is on the title.

A few states, like California and Texas, are community property states. These states divide marital property 50/50 between the spouses during divorce proceedings. Every state has its own laws about the division of property during divorce.

South Dakota is also an “all-property” state. This means there is no separate property exception during the division of marital property. Judges can divide and distribute all property owned during the marriage to either spouse. For this reason, spouses in South Dakota should have prenuptial agreements to protect any valuable assets.

Note: State laws are subject to change through the passage of new legislation, court rulings (including federal decisions), ballot initiatives, and other means. FindLaw strives to provide the most current information available. You should consult an attorney or conduct your own legal research to verify the state law(s) before making any legal decisions.

Marital Property vs. Separate Property

In general, marital property is all property acquired during the marriage. This includes property purchased or traded for marital assets. It also includes increased value to property due to the efforts of either spouse.

Marital property can include:

• Real estate and other high-value property
• Joint bank accounts and investment accounts
• Pension plans and retirement accounts
• Marital debts and liabilities
• Wages and income earned during the marriage

Separate property is everything acquired before the marriage or property gifted to or inherited by one spouse.

Unlike other states, South Dakota considers all property, marital and separate, as part of the marital estate. Judges assess the value of the property and then divide it without regard for acquisition or ownership (SDC §25-4-44).

South Dakota Marital Property Laws

South Dakota divorce law requires an equitable division of property. There are no statutory guidelines for how marital property shall be divided. Instead, judges rely on case law and claims from each spouse (Dunham v. Sabers, 2022, Ahrendt, 2018).

Courts consider these factors when dividing property:

• Length of the marriage
• Ages and health of the parties
• Parties’ earning capacity and employability
• Value of the property
• Contribution of each party to the marital estate, including non-monetary contributions like homemaking and childcare

Judges may consider child custody and child support orders when dividing property. The ability of both spouses to provide for minor children is part of the divorce action. Judges award alimony after property division.

South Dakota is a no-fault divorce state. If one spouse caused the dissipation of the marital estate or affected the income-producing capacity of a marital business, courts may award the other spouse more property in compensation.

Visit FindLaw’s Divorce and Property page for more resources.

Get Legal Advice From a South Dakota Family Law Attorney

South Dakota laws about divorce and property division are complicated. You can protect your property with a prenuptial agreement. Or you can make your own settlement agreement during a divorce. Get legal advice from an experienced South Dakota divorce attorney before starting the divorce.