Adultery in South Dakota: Does Cheating Affect Alimony?

Learn whether an extramarital affair can impact spousal support in South Dakota.

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 different from other causes for divorce, with the infidelity changing spouse’s rights to alimony and property division. This article explains how adultery affects each spouse’s legal rights in a South Dakota divorce. If you have additional questions about adultery and your legal rights in a South Dakota divorce, contact a local family law attorney.

What Role Does Adultery Play in a South Dakota Divorce?

A South Dakota court deciding alimony takes into account each spouse’s fault in the marriage ending, including whether one spouse’s infidelity led to the divorce. A spouse’s infidelity can be a reason to deny that spouse alimony. Adultery does not affect property division directly, but a fair alimony award takes into account the property each spouse receives in the divorce. If your spouse has had an affair, you will need to provide evidence to the court of the affair if you want the court to consider it during the divorce. It is a good idea to consult a family law attorney to help you prove the affair.

Overview of Alimony in South Dakota

Although most marriages today have two spouses earning income, one spouse is more responsible for earning income in many marriages. In most marriages with children, one spouse is more responsible for taking care of the household and child-rearing, while the other spouse is more responsible for supporting the family financially. When one spouse is financially dependent on the other at the time of a divorce, courts often award the supported spouse payments to help cover expenses, called alimony.

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

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

Alimony in South Dakota can be permanent, lasting until one spouse dies or the supported spouse gets remarried. South Dakota alimony may also be temporary, lasting for a specific number of months or years. A court can modify the alimony award if the spouse’s financial circumstances change while alimony is still being paid.

Alimony can include money to pay a spouse’s expenses during the divorce itself, as well as money to hire a divorce attorney. Read Understanding and Calculating Alimony in South Dakota for more details on alimony in this state.

How Does Adultery Impact Alimony in South Dakota?

Adultery in South Dakota is defined as voluntary sexual intercourse between a married person and someone of the opposite sex who is not his or her spouse. An affair will not necessarily prevent a spouse from receiving alimony, but the more the affair was a reason for the divorce, the more that affair will be taken into account by the court. An affair that happened early in the marriage that was either forgiven or condoned is unlikely to affect a spouse’s right to alimony.

South Dakota law considers adultery along with the other factors, like a dependent spouse’s need for income and the supporting spouse’s ability to make payments. Courts consider other faults leading to the divorce by each spouse when determining alimony. An affair may lower a spouse’s alimony award or prevent the alimony award altogether.

If your spouse has committed adultery, you should gather any evidence of the affair for presentation to the court. You don’t have to prove the sexual intercourse directly, but you will need evidence such as hotel receipts, credit card statements, phone records, and anything else showing that your spouse was with another person and they had a romantic relationship.

What Else Does Adultery Impact?

Adultery won’t directly affect the division of property during a divorce. If a spouse spent a significant amount of the couple’s money on an affair, however, 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.

South Dakota law also doesn’t consider adultery directly when deciding child custody or visitation. The only exception is when the unfaithful spouse’s affair shows an inability to act in the children’s best interests. For example, if a spouse shirked child-rearing duties while having the affair, the court can consider that along with other evidence of each spouse’s ability to take care of the children.

Resources

If you have additional questions about how adultery affects your rights during a divorce in South Dakota, you should speak with an experienced family law attorney in your area.

To read the full text of the law on alimony in South Dakota, see the South Dakota Codified Laws § 25-4-41.

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