In South Dakota, a court will divide marital property during a divorce based on a system called equitable distribution. This means that the property will be split between spouses in a way that is equitable based on the whole picture of how they lived during marriage and what their individual needs will be after divorce. An equitable division does not have to be equal, and many couples agree between themselves on what is a fair division. If they can't reach an agreement or can agree about most but not all of their property, then the court will decide for them.
When a couple divorces in South Dakota, everything they own is characterized as either marital or separate property. Marital property is property that belongs to the marriage. Generally, this type of property is acquired or earned during the marriage. Property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, may also be considered marital property.
Separate property is property that belonged only to one spouse before marriage. It could also include some property given only to one spouse during the marriage, like a gift of a rare coin collection from the husband's grandfather to the husband alone or an inheritance upon the death of the wife's aunt to the wife alone.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, benefits, and even debts. After the court characterizes any disputed item of property as marital or separate, it must evaluate the property's value, usually using information provided by the spouses. In South Dakota, it does not matter whether title to property is in the husband's name, the wife's name, or both. Regardless of title, the court can split the property or even give it to the other spouse if that's the most equitable thing to do.
Once all of the property is valued, the court applies a set of factors to divide it fairly. These factors include each spouse's contribution to the acquisition of marital property. Contributions can be non-monetary – such as homemaking, child-rearing, and other unpaid work – as well as monetary. The court also looks at the length of the marriage, the spouses' respective ages and health conditions, and their current and future earning capacity. Additional factors include the value of each spouse's separate property, the value of the property being distributed, and the income potential of that property.
Fault in causing the marriage to fail – such as adultery, extreme cruelty, or conviction of a felony, to name a few – is not a factor of the division unless this bad behavior had something to do with how property was acquired during the marriage. It is not particularly easy to prove a relevant connection between fault and the acquisition of property, however. For example, a wife claimed that she should have received a greater share of her husband's ranch because he prevented her from contributing as much as she intended to the value of the property. She claimed he had hit her with a bottle, which sent her to the hospital and served as a reason to divorce him. The court did not award a wife a greater interest in her husband's ranch even though her means to increase the value of this property had been cut short.
Spousal support is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the one they had during marriage. In South Dakota, the court will evaluate one or both spouses' need for support after the property division. It decides on the amount and duration of support based on many of the same factors above, but it also takes fault into consideration. Ultimately, any order for spousal support must be just and mindful of each spouse's circumstances and ability to pay.
Read our article on Alimony in South Dakota for more information.
Sources: You can read about division of property and spousal support in the South Dakota Codified Laws, Section 25-4-44 and Section 25-4-41, respectively. The factors for division are no longer part of the statute. You can find them in the case Guindon v. Guindon, 256 NW 2d 894 (S.D. S.Ct. 1977), but you may need to do additional research if the case law changes. The case discussing fault in division of property is Fink v. Fink, 296 NW 2d 916 (S.D. S.Ct. 1980).