Grounds for Divorce
In South Dakota, divorce can be based on either fault and no-fault grounds. A no-fault divorce means that the couple can file for divorce based on irreconcilable differences. If one spouse decides to file for divorce based on fault grounds, options are to cite adultery, extreme cruelty, willful desertion or neglect, habitual intemperance, or conviction of a felony.
If a person files for divorce citing irreconcilable differences and the judge believes there is a possibility for reconciliation (probably based on the other spouse’s statement to that effect), the court may postpone the matter for a maximum of 30 days so that the couple can explore reconciliation.
Residency Requirement and Waiting PeriodThe spouse initiating the divorce must be a resident of South Dakota at the time that the divorce is filed, but does not need to remain a resident after the filing.
There is a mandatory 60 day waiting period from the time that a person serves divorce papers on the other spouse and the court hearing or determination for the divorce.
South Dakota is an equitable distribution state. This means that the court will divide the marital property, regardless of how title is held, between the two parties in an equitable and just way. The court may only consider fault if it is relevant to how the property was acquired.
A judge in South Dakota may award spousal support, or alimony, to one party, either temporarily or for an indefinite period of time. When making that decision, the court will consider both parties’ circumstances.
South Dakota uses a support obligation schedule that calculates child support by taking into consideration each parent’s monthly net income and the number of children. Unless a parent has a physical or mental disability, the court will assume that both parents have the ability to be employed and to earn at least minimum wage.
The judge may allow the parents to make certain deductions from their income, including contributions to a retirement plan, income taxes, unreimbursed business expenses, and payments on other support orders. If the amount of child support is more than fifty percent of a parent’s total monthly net income, the judge has discretion to adjust the amount. However, if the child support amount was arrived at through an agreement between the parents or is necessary for the child’s health or education, or if the paying parent voluntarily became unemployed or underemployed, then the court may leave the support amount the same.
Judges make child custody decisions based on the best interests of the child. If there are custody and visitation disputes, then the court may appoint a parenting coordinator to help the parents resolve the issues. The court will also allow a child who is old enough to state a preference for the residential parent.
Some factors may prevent the court from allowing a parent custody or visitation. For example, if one parent was convicted of being involved in the other parent’s death, then it is presumed that custody and visitation with the surviving parent is not in the child’s best interest. However, this is a rebuttable presumption, so with the appropriate evidence, the surviving parent can overcome this presumption. Likewise, if one parent has a history of domestic violence or abuse, there is a rebuttable presumption that custody or visitation with that parent is not in the best interest of the child.
A parent with primary custody who plans to move away from the noncustodial parent, or out of the child’s current school district, must give the court and the other parent notice of the intent to relocate. In order to have a hearing on the relocation, the non-moving parent must request it within 30 days, otherwise the court will presume that there is consent for the other parent to move.