Understanding and Calculating Alimony in South Dakota

Alimony (also called maintenance in South Dakota) is money that one spouse pays to the other during the divorce process and sometimes, for a period after the divorce. (S.D. Codified Laws § 25-4-41) The purpose of alimony isn't to punish a misbehaving spouse; instead, courts order it to ensure that both spouses remain financially stable, even if that means that a higher-earning spouse must financially support the other for a period until the recipient can become self-supporting.

Types of Alimony in South Dakota

Judges in South Dakota may order any of the following types (or a combination of them) of alimony:

Temporary alimony. Temporary support is available to spouses who need financial help during the lengthy divorce process. (S.D. Codified Laws § 25-4-38.)

Permanent alimony. Permanent alimony is becoming increasingly rare in divorce cases, but it's available to spouses who are unable to become financially independent after the divorce. Although the court expects both spouses to be self-supporting, the court may award permanent support to a spouse who is unable to work due to advanced age, mental or health disability, or a lengthy absence from the job market.

Rehabilitative alimony. The purpose of rehabilitative support is to provide the supported spouse with financial assistance (and time) necessary to acquire job training or education that will lead to employment and financial independence. Rehabilitative support is common in cases where one spouse left a job to raise a family or to support a spouse's career.

Restitutional alimony. Courts in South Dakota may order restitutional alimony to reimburse one spouse's contribution during the marriage to the other's advanced training or education. For example, restitutional support may be appropriate if one spouse worked full-time while the other attended veterinarian school.

Judges most commonly order the paying spouse to make periodic (usually monthly) payments to a supported spouse. In some cases, the court may attach an income withholding order to the alimony award, which directs a paying spouse's employer to withdraw the support amount from a paycheck and forward it to the court agency in charge of support payments. (S.D. Codified Laws § 25-4-43.) If the paying spouse is self-employed or doesn't have a steady paycheck, the court may require a lump-sum (one-time or installment) payment for support.

Qualifying for Alimony

In South Dakota, either spouse in a divorce can request alimony. However, the court will only award support if the requesting spouse demonstrates a need for financial support and that the other spouse can pay. Additionally, judges will consider the following factors when deciding the type, amount, and duration of the award:

• the length of the marriage
• each spouse's earning capacity
• the financial condition of each spouse after property division in the divorce
• the age, health, and physical condition of both spouses
• the marital standard of living, and
• marital fault.

In addition to the above factors, when considering whether to award rehabilitative or restitutional support, the court must also consider:

• the amount of the supporting spouse's contributions
• whether the supporting spouse lost job advancement or career opportunities while supporting the other, and
• how long the marriage lasted following after the other spouse completed the education or job training program. (Hill v. Hill, 763 NW 2d 818 (2009))

In the end, judges have the final say when it comes to awarding alimony and will consider each of the above factors equally when deciding. If you would prefer to create your own award, you and your spouse can negotiate a separate agreement for the judge to sign.

Duration of Alimony

Courts in South Dakota do not have set guidelines for how long alimony awards last. The judge will determine the length of your alimony award after deciding the type of support that's appropriate for your case.

Temporary alimony continues throughout the legal process and terminates when the judge finalizes the divorce. If the judge orders restorative support, it will end when the paying spouse makes the final payment of the award.

Rehabilitative support is typically short-term, and the judge will typically include either an end date or specific event that will terminate support. For example, if you're receiving support while you attend a four-year degree program, the court will either set support to end in four years or require both spouses to participate in a hearing at the end of the degree program to determine if support should continue.

Rehabilitative and permanent support usually terminate if the supported spouse remarries or if either spouse dies.

Modifying Alimony in South Dakota

Either spouse can request a review of an alimony award if there's a change of circumstances after the judge finalizes the original order. (S.D. Codified Laws § 25-4-41.) However, if the spouses agree, in writing, that the award is "non-modifiable," the court will not review it in the future.

An example of a change in circumstances may include the involuntary loss of employment, remarriage by the supported spouse, significant health crisis for either spouse or any other event that makes the original order unfair or unjust.

It's important to understand that you must request a modification and wait for a new order before you stop paying support, even if you've lost your job and can't pay. If you fail to pay as ordered, the judge may find you guilty of contempt of court.

Failure to comply with a court order may result in severe penalties, ranging from fines and tax seizures to time in jail. Like most divorce-related issues, ex-spouses can work together to create an appropriate alimony order at any time after the divorce.

What About Tax-Deductions for Alimony?

If you finalized your alimony agreement or received your alimony order on or before December 31, 2018, the paying spouse can "write-off" alimony payments as a tax-deduction, while the supported spouse must list the money as income and pay taxes on it.

However, the Tax Cuts and Jobs Act that took effect in 2019 eliminated the tax deduction and the requirement to report alimony as income for any alimony agreements or orders finalized on or after January 1, 2019.

Divorcing spouses concerned with how the new tax laws will impact their bottom line should speak with an experienced family law attorney before moving forward in the alimony process.