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South Dakota Divorce Laws: 10 Things You Must Know Before Filing

Filing for divorce in South Dakota requires understanding the state's specific laws and procedures. South Dakota is an equitable distribution state with both fault and no-fault divorce options. This comprehensive guide covers everything you need to know about divorce in South Dakota, from filing requirements to final decree.

Key Facts:

Court: South Dakota Circuit Court
Filing fee: $95-$125
Residency requirement: Resident at filing
Waiting period: 60 days
Property division: Equitable Distribution
Child support: Income Shares Model

Before filing for divorce in South Dakota, you must meet the state's residency requirements.

Requirement

Resident at filing - Either you or your spouse must have been a resident of South Dakota for at least this period before filing.

Proving Residency

You may need to provide:

South Dakota driver's license or state ID
Voter registration
Utility bills showing South Dakota address
Lease or mortgage documents
Employment records
Tax returns

Military Exception

Active duty military personnel stationed in South Dakota may have different residency requirements. Check with the Circuit Court for military-specific rules.

No-Fault Grounds

South Dakota allows no-fault divorce based on:

Irreconcilable differences - Marriage is irretrievably broken
Incompatibility - Spouses cannot get along
Living separate and apart - For specified period (varies)

Fault-Based Grounds

South Dakota also allows divorce based on fault, including:

Adultery
Extreme cruelty or abuse
Abandonment/desertion
Imprisonment
Habitual drunkenness/drug use
Other grounds as specified by state law

Recommendation: No-fault divorce is typically faster, less expensive, and less contentious than fault-based divorce.

RETAINER FEE  
PETITION    

COURT FILING FEE  SUMMONS  
AFFIDAVIT
  MOTIONS  
ARGUMENTS  
TEMPORARY ORDERS  HEARINGS  
SUBPOENAS
  DEPOSITIONS
  SETTLEMENT  CONFERENCES  JUDGEMENT

    TRIAL  
APPEALS

Equitable Distribution State

South Dakota follows equitable distribution, meaning property is divided fairly but not necessarily equally.

Marital property (subject to division):

Assets acquired during marriage
Income earned during marriage
Retirement benefits accrued during marriage
Increase in value of separate property if marital funds contributed

Separate property (generally not divided):

Property owned before marriage
Inheritances (kept separate)
Gifts to one spouse from third parties
Passive appreciation of separate property
Property acquired after legal separation

Factors Courts Consider

South Dakota courts examine multiple factors to determine fair division:

Duration of marriage
Age and health of spouses
Income and earning capacity
Contributions to marriage (including homemaker)
Economic circumstances of each spouse
Custody of children
Tax consequences
Other relevant factors

Equitable ≠ Equal: Fair division could be 50/50, 60/40, or another split depending on circumstances.

Best Interests Standard

South Dakota courts make all custody decisions based on the best interests of the child. This is the paramount consideration in every custody case.

Types of Custody

Legal custody - Decision-making authority about:

Education
Healthcare
Religious upbringing
Major life decisions

Physical custody - Where child primarily lives

Joint custody - Shared decision-making and/or physical time
Sole custody - One parent has primary authority

Factors Courts Consider

South Dakota courts typically examine:

Wishes of parents regarding custody
Wishes of child (if age-appropriate)
Relationship between child and each parent
Child's adjustment to home, school, community
Mental and physical health of all parties
Ability to provide stable home environment
History of domestic violence or abuse
Willingness to facilitate relationship with other parent
Geographic proximity of parents
Any other relevant factors

Parenting Time

Non-custodial parents receive parenting time (visitation). South Dakota courts presume parenting time serves child's best interests unless evidence suggests otherwise.

Typical schedules include:

Alternating weekends
Midweek visits
Split holidays and school breaks
Extended summer parenting time

Calculation Method

South Dakota uses the Income Shares Model to calculate child support.

Factors included:

Both parents' gross incomes
Number of children
Cost of health insurance for children
Childcare expenses
Parenting time schedule
Extraordinary medical or educational expenses

What Counts as Income

Wages, salaries, bonuses, commissions
Self-employment income
Rental and investment income
Unemployment and disability benefits
Workers' compensation
Social Security benefits
Retirement/pension income
Spousal support received

Duration

Child support in South Dakota typically continues until:

Child turns 18
Child graduates high school (whichever is later, often age 19 max)
Child becomes emancipated
Child joins military
Child dies

Modification

You can request modification if circumstances substantially change:

Income of either parent changed significantly
Child's needs changed
Custody arrangement changed
Other substantial change in circumstances

File a motion with the Circuit Court to request modification.

When Awarded

Spousal support (alimony) is not automatic in South Dakota. Courts consider whether support is appropriate based on multiple factors.

Common situations:

Long-term marriage (typically 10+ years)
Significant income disparity
One spouse sacrificed career for family
Health issues limit earning capacity
Recipient needs time for education/training

Factors Courts Consider

South Dakota courts examine:

Length of marriage
Age and health of spouses
Income and earning capacity of each spouse
Standard of living during marriage
Education level and job skills
Contributions to marriage (including homemaker)
Time needed to acquire education/training
Ability to pay vs. need for support
Property division awarded
Tax consequences
Other relevant factors

Types of Support

Temporary support - During divorce proceedings only

Rehabilitative support - For specified period to allow recipient to become self-supporting

Permanent support - Until remarriage, death, or court modification (reserved for long marriages or inability to become self-supporting)

Lump sum support - One-time payment (not modifiable)

Amount and Duration

South Dakota has no set formula for spousal support amount or duration. Courts have wide discretion based on the factors above. Support is highly negotiable and varies by case.

Step-by-Step Process

1. Meet Residency Requirements

Ensure you meet South Dakota's Resident at filing residency requirement
Gather proof of residency

2. Determine Grounds

Choose your grounds for divorce
No-fault is typically simplest

3. File Petition

File divorce petition/complaint with Circuit Court
Pay filing fee: $95-$125
State grounds and relief sought

4. Serve Spouse

Formally serve divorce papers on spouse
Use sheriff, process server, or certified mail (depending on South Dakota rules)
Spouse typically has 20-30 days to respond

5. Temporary Orders (If Needed)

Request temporary custody, support, use of home
Court holds hearing for urgent matters

6. Discovery

Exchange financial information
Complete financial affidavits
Produce documents (bank statements, tax returns, etc.)

7. Negotiation

Negotiate settlement of all issues
Many courts require mediation
Aim to reach full agreement

8. Trial (If No Settlement)

Present evidence and testimony
Judge decides disputed issues

9. Final Decree

Judge signs final divorce decree
Divorce becomes final
Appeal period typically 30 days

Timeline

Uncontested divorce: 2-6 months typically
Contested divorce: 12-18+ months
Waiting period: 60 days

Court Filing Fees

Circuit Court filing fee: $95-$125

This covers:

Processing your petition
Opening your case file
Court administrative costs

Additional Court Costs

Service of process: $50-$150
Certified copies: $2-$5 per page
Motion filing fees: $50-$100 each
Subpoena fees: $20-$50 each

Fee Waiver

If you cannot afford the filing fee, request a fee waiver by filing an Affidavit of Indigency. You may qualify if you:

Receive public benefits (SNAP, TANF, Medicaid, SSI)
Income below federal poverty guidelines
Paying fee creates financial hardship

Attorney Fees

Typical hourly rates in South Dakota:

$150-$400/hour depending on location and experience

Typical total costs:

DIY uncontested: $500-$1,500
Attorney-assisted uncontested: $2,000-$5,000
Contested divorce: $10,000-$50,000+

Domestic Violence

South Dakota courts take domestic violence very seriously. If abuse is present:

Obtain protective order/restraining order
Document all incidents
Seek safe housing
Domestic violence significantly affects custody decisions

Military Divorce

Special rules apply for military members:

Servicemembers Civil Relief Act (SCRA) may delay proceedings
Military pensions divisible under federal law
Special jurisdiction rules
Consult military family law attorney

Business Owners

If either spouse owns a business:

Business valuation required
Marital portion subject to division
May need forensic accountant
Consider keeping business intact with other assets to non-owner spouse

High-Asset Divorce

Complex estates require additional considerations:

Multiple property appraisals
Business valuations
Complex investment analysis
Tax planning essential
Often need forensic accountants

Same-Sex Divorce

South Dakota recognizes same-sex marriages. All divorce laws apply equally regardless of gender.

1. Hiding Assets

Why it's wrong: Violates discovery rules, destroys credibility, can result in sanctions

What to do: Disclose all assets honestly and completely

2. Using Children as Pawns

Why it's wrong: Harms children, violates South Dakota custody laws, court will punish this behavior

What to do: Keep children out of conflict, facilitate relationship with other parent

3. Social Media Mistakes

Why it's wrong: Everything can be used as evidence, affects custody, shows poor judgment

What to do: Limit social media, never post about divorce or spouse

4. Violating Temporary Orders

Why it's wrong: Contempt of court, possible jail time, damages your case

What to do: Follow all court orders precisely

5. Moving Out Without Strategy

Why it's wrong: Can appear as abandonment, lose access to home, may affect custody

What to do: Consult attorney before moving out, get written agreement

6. Making Large Purchases or Transfers

Why it's wrong: May violate automatic restraining orders, wastes marital assets, bad faith

What to do: Avoid major financial decisions during divorce

7. Refusing to Negotiate

Why it's wrong: Trial is expensive ($20K-$50K+), lose control over outcome, creates lasting animosity

What to do: Negotiate in good faith, consider mediation, compromise on smaller issues

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We offer a guided path through divorce that helps avoid unnecessary conflict and costs.

Start your divorce

See if this is right for me

Written By:

Divorce.com Staff