A Summary of South Dakota Divorce Laws
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Grounds for Divorce Under South Dakota Divorce Laws
South Dakota – The Mount Rushmore State – allows for both “fault” and “no-fault” grounds for divorce. The fault grounds are as follows:
- Extreme cruelty
- Willful desertion
- Willful neglect
- Habitual intemperance (i.e.- habitual drunkenness or drug addiction)
- Conviction of felony
- Chronic mental illness is a ground for divorce at the discretion of the court in cases of incurable, chronic mania or dementia of either spouse.
South Dakota divorce laws only provide one approved no-fault ground to those seeking a divorce is based on “irreconcilable differences” (an irretrievable breakdown of the marriage).
The grounds of irreconcilable differences may be used only if both parties agree to use it or if there is default on the part of the defendant.
The plaintiff (this is the person filing for divorce) in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of South Dakota, or be stationed in the state while a member of the armed services.
And, in order that each party be entitled to the entry of a decree or judgment of divorce or separate maintenance, that residence or military presence must be maintained until the decree is entered. Thus, you must maintain residence in the state until such a time as the divorce is finalized.
In the matter of irreconcilable differences, if one of the spouses disputes the fact that the marriage is broken beyond repair and he or she believes the marriage may be worked out, he/she may request a hearing.
If the court concludes that there is a chance for the marriage to work and there are minor children involved, the court may delay the proceedings for 30 days to allow for an attempt at reconciliation.
In addition to this, a judge may determine that there is a chance of reconciliation and may order mandatory mediation for the spouses. Mediation will allow you and your spouse to work through any residual issues you may have and determine whether or not your marriage is truly broken beyond repair or if it might be possible to fix the marriage and avoid getting divorced.
South Dakota divorce laws now provide for the “equitable” distribution of the marital property at the time of the final divorce between the parties.
“Marital Property” refers to all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties.
“Separate Property” is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property.
Where “Marital Property” and “Separate Property” are mixed together or where “Separate Property” is increased through the active efforts of either party during the marriage, then such property may be classified as “Part Marital” and “Part Separate” property.
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer jointly owned marital property to one of the parties.
The assignment of fault may make a difference in terms of a court’s final determination of the division of property. If one party is determined to be at fault for the breakdown of the marriage, then the court may award the other party more property.
The fault of a spouse in causing the separation and divorce may not be the main reason for determining spousal support. But the cause of separation will be a factor that the court considers in determining whether or not to award spousal support.
Spousal support, when awarded, may be periodic and/or in a lump sum. The amount of support depends upon several factors including the following:
- The ages of both spouses
- The assets and earning potential of the parties
- The duration of the marriage
- The history during the marriage
Spousal support is not awarded to punish a guilty spouse. Instead, it’s meant to lessen the financial impact of the end of the marriage on the other spouse. For example, if one spouse tended to the home and children while the other spouse worked or obtained an education in to move up in their field of work, that spouse is financially dependent on the working spouse.
When determining which situation would be best for the child/children of the marriage, the court will consider several factors, including:
- The ages of the parent and child/children
- The physical and mental condition of the parent and child/children
- The relationship existing between each parent and each child
- The needs of the child/children
- The role played by each parent in the upbringing and caring for the child/children
- The home where the child/children will live
- The child’s wishes if the child is sufficiently competent to express an opinion
The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state Child Support Guidelines provides an amount of monthly child support that is presumed to be correct. But the court may deviate from these guidelines in appropriate circumstances.
A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce. It may include such things as the division of property, spousal support, attorney’s fees, custody of their children and child support.
Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.
Whenever a decree of divorce is granted, the court may, in its discretion or upon the application of either party by the terms of the decree, restore to the woman her maiden name or the name she legally used prior to this recent marriage.
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