Family Law

Divorce

South Dakota offers “no-fault” divorce which means that, if both parties agree to the divorce, it is not necessary to prove marital fault or misconduct. No-fault divorce is based on the concept of irreconcilable differences, which means the spouses agree that the marriage is irreparably damaged and nothing can be done to restore it.

South Dakota also provides “fault” grounds for divorce should that be appropriate. In these cases, sufficient evidence must be provided to the court to prove the allegations.

These grounds include:

• Adultery

• Willful desertion (abandonment)

• Habitual intemperance (alcohol abuse)

• A felony conviction

• Extreme cruelty (grievous physical injury or mental suffering)

• Willful neglect

Divorce issues that must be resolved include child support, child custody and visitation, spousal support, and the equitable division of marital property and debts. If the parties cannot agree on these issues by themselves or through negotiation or mediation, the court will make the decisions for them.

Spousal Support

The purpose of spousal support is to ensure that the supported spouse is able to maintain the standard of living that was enjoyed during the marriage. Courts may order the payments to be made for a specific time period or indefinitely. They may be made in monthly payments or as a lump sum.

Generally, South Dakota recognizes three different types of alimony:

• Permanent, which is paid indefinitely until a change in circumstances occurs for the supported spouse, such as a remarriage.

• Rehabilitative, which is paid only until the supported spouse has become skilled enough to work and become sufficiently self-supporting. This is often the case for mothers who stayed at home to care for children.

• Restitutional, which is paid only until the supported spouse completes his or her education or training.

No set formula has been devised by the state to calculate alimony. Courts will look at various factors specific to the case in its determination. These factors include the length of the marriage, the standard of living established during the marriage, the ages and health conditions of the spouses, as well as their current incomes, debts, and assets. Also important is whether one spouse provided care of the children in lieu of employment, both spouses’ earning potentials, how the marital property was distributed, and any other relevant factor.

Child Custody

How Is Child Custody Decided in South Dakota?

South Dakota courts make a determination on child custody based on the standard of what is in the best interests of the child. Generally, joint custody is preferred so as to maintain a continuing relationship with both parents. The child's own wishes regarding custody may be recognized by the court when the child reaches a particular age. Preferential consideration is not given to mothers simply because of their sex — both parents are considered equally.

Courts will make custody and visitation decisions based on many factors.

Common factors influencing child custody decisions include:

• The physical and mental health conditions of both parents

• Who has been the child’s primary caretaker during the marriage

• How the child’s school and community relationships will be affected

• How the child’s relationships with other household members will be affected

• Evidence of any parental abuse or extreme discipline

• Evidence of any parental substance abuse

Once custody and visitation arrangements have become an order of the court, they are deemed enforceable. Child custody and parenting time have the ability to be modified by the court. Parents must petition the court for modifications.