Child Support
Residency Requirements and Grounds for Divorce
The spouse that is filing for a divorce must be a South Dakota resident or be in the military and stationed there when the divorce complaint is filed and until the divorce is final. A divorce case starts when one spouse files a complaint in the circuit court of the county where either spouse lives. The nonfiling spouse can have the case transferred to the county where he lives. There's a 60-day waiting period after filing before the court will grant a divorce.
A divorce may be granted based on any of the following grounds:
- Irreconcilable differences
- Adultery
- Extreme cruelty
- Willful desertion
- Willful neglect
- Habitual drunkenness
- Conviction of a felony
The court has discretion to grant a divorce on the ground that a spouse has incurable insanity and has been confined for five years.
A simplified divorce process is an option when spouses agree on "irreconcilable differences" as the grounds for divorce. The court grants the divorce based on affidavits you and your spouse file, which confirm residency and the reason for divorce. Neither one of you need to make a court appearance.
Dividing the Property
South Dakota is an "equitable distribution" state. This means the court makes a fair, but not necessarily equal, division of the property belonging to either or both spouses, regardless of which spouse holds title to the property. Marital fault isn't a factor in property division unless it's relevant to property acquisition during the marriage.
In deciding how to divide the property, the court will consider the following factors:
- Marriage length
- Property value
- Spouses' ages and health
- Ability of each spouse to earn a living
- The contribution of each spouse to acquiring assets
- The income-producing capacity of the spouses' assets
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a South Dakota divorce lawyer and it can save you a lot of time and money.
Alimony
The court can order alimony to either party in South Dakota for a limited time or for life. In deciding the amount and duration of any alimony award, the court considers the following factors:
- Marriage length
- The ability of the payor spouse to meet his or her needs while paying support
- The financial resources of the spouse seeking maintenance
- The comparative financial resources of the spouses
- Spouses' ages
- The physical and emotional conditions of the spouses
- The fault of the spouses during the marriage
Child Custody and Visitation
In South Dakota, the court may award sole or joint child custody based on the best interests of the child. It can consider a child's preference if the child is mature enough to to form an intelligent preference. A spouse's fault isn't a factor unless it relates to the parent's fitness to have custody. There is no custody preference based on a parent's gender.
South Dakota has visitation guidelines, which govern a court's visitation order. However, parents are encouraged to agree on a visitation plan, with the court stepping in only when they can't agree.
Child Support
In South Dakota, either or both parents may be ordered to provide child support. There is an official child support obligation schedule. A deviation from the schedule may be allowed based on the following factors:
- The income of a subsequent spouse or contribution of a third party to the income or expenses of a parent but only if the application of the schedule works a financial hardship on either parent
- Any financial condition of either parent that would make use of the schedule unfair
- Any special needs of the child
- Agreements between the parents providing other forms of support for the direct benefit of the child
- Support obligations for subsequent children
- A voluntary reduction in the income of either parent
Questions for Your Attorney