Adultery in South Dakota: Does Cheating Affect Alimony?

If you're getting divorced in South Dakota and you or your spouse has cheated, you'll need to know how the adultery will affect the judge's decisions about your case, including alimony, child custody, and child support.

By , Attorney · Cooley Law School

Adultery is the cause of over one-fourth of divorces, trailing only unreasonable behavior as a reason for divorce. With over a million divorces in the United States each year, this means hundreds of thousands of marriages will end due to a spouse's infidelity every year.

Many states' laws treat adultery differently from other causes for divorce, with infidelity changing a spouse's right to alimony and property division. This article explains how adultery affects each spouse's legal rights in a South Dakota divorce.

What Role Does Adultery Play in a South Dakota Divorce?

In South Dakota, innocent spouses can request a fault-based divorce if the other spouse committed adultery during the marriage. Other grounds (reasons) for fault-based divorce in South Dakota include:

  • extreme cruelty
  • willful desertion
  • willful neglect
  • habitual intemperance, and
  • a felony conviction.

(S.D. Codified Laws § 25-4-2 (2021).)

South Dakota courts can consider each spouse's fault in the marriage ending, including whether one spouse's adultery led to the divorce. However, filing for a fault-based divorce does not guarantee that it will impact your alimony award later.

If you'd rather not air your grievances in a public forum, such as a courtroom, you can request a "no-fault" divorce by stating in your divorce complaint that you and your spouse have "irreconcilable differences." This means that you have substantial reasons for not continuing the marriage and it should end. (S.D. Codified Laws § 25-4-17.1 (2021).)

Adultery does not affect property division directly, but a fair alimony award considers the property each spouse receives in the divorce. If your spouse had an affair, you would need to provide evidence to the court of the affair if you want the court to consider it during the divorce. Although you can represent yourself in a fault-based divorce, collecting and presenting evidence to prove the affair can be challenging—many people who file fault-based divorces hire an attorney.

Overview of Alimony in South Dakota

It's not uncommon for divorces to reveal financial inequities between the spouses. For example, one spouse might stay home so that the other can work, or one spouse might have dropped out of school to work in order to support the other spouse who was starting a business. When one spouse is financially dependent on the other at the time of a divorce, courts often award the supported spouse alimony to help cover expenses and ensure that both spouses continue to have financial resources similar to those they had during the marriage.

South Dakota courts base their decision on whether to award alimony to a spouse on several factors:

  • length of the marriage
  • each spouse's earning capacity
  • each spouse's age and health
  • the couple's standard of living, and
  • each spouse's fault in the marriage ending.

(Jones v. Jones, 542 N.W.2d 119 (1996).)

Judges in South Dakota can award temporary alimony that lasts only during the divorce proceedings. The purpose of this "alimony pending action" is to ensure that both spouses remain financially stable while the case is pending and, if necessary, that a dependent spouse can afford to hire a divorce attorney. If a court awards temporary support during the proceedings, it's doesn't always guarantee a permanent award later. (S.D. Codified Laws § 25-4-38 (2021).) Post-divorce alimony awards can also be permanent (lasting until one spouse dies or until the supported spouse gets remarried) or temporary (lasting for a specific number of months or years). A court can modify the alimony award if the spouse's financial circumstances change before the court-ordered award expires. (S.D. Codified Laws § 25-4-41 (2021).)

How Adultery Affects Alimony Awards in South Dakota

South Dakota law defines adultery as "voluntary sexual intercourse between a married person and someone of the opposite sex who to whom he or she is not married." (S.D. Codified Laws § 25-4-3 (2021).)

An affair will not necessarily prevent a spouse from receiving alimony. The amount of emphasis a court places on a guilty spouse's marital misconduct varies depending on your case. In addition to considering evidence of the misconduct, South Dakota judges must also consider all the above factors before creating a final alimony award. Judges can't use alimony to "punish" a guilty spouse—they can award alimony only when the innocent spouse needs support or to reimburse the innocent spouse for any extraordinary amounts of marital funds the cheating spouse used to pay for an affair.

How Adultery Affects Property Division in South Dakota

Adultery won't directly affect the division of property during a divorce. Instead, judges must make an "equitable" property division that is fair (not necessarily equal) to both spouses. (S.D. Codified Laws § 25-4-44 (2021).) However, if a spouse spent a significant amount of the couple's money on an affair, the court may award the unfaithful spouse less property as a result. For example, if a spouse purchased a car for a paramour or spent large amounts on hotels or trips, the court will take that into account when dividing the couple's property.

How Adultery Affects Child Custody and Child Support

South Dakota law also doesn't consider adultery directly when deciding child custody or visitation. The judge's primary concern when deciding custody is that the arrangement be in the child's best interest. That means the judge might consider adultery if needed to protect the child. For example, if a spouse shirked child-rearing duties while having an affair, the court can consider that along with other evidence of each spouse's ability to take care of the children. (S.D. Codified Laws § 25-4-45.1 (2021).)

South Dakota law requires judges to evaluate each parent's income for child support. South Dakota judges do not consider marital misconduct when creating a child support award. Instead, the court (after both parents provide the court with documentation of monthly income) will use the support obligation schedule to determine how much the non-custodial parent will pay in support. (S.D. Codified Laws § 25-7-6.2 (2021).)