Grounds for Divorce in South Dakota

Learn more about no-fault and fault divorce in South Dakota.

By , Attorney

Grounds for Divorce

Each state has an individual process for divorce, but in every jurisdiction, divorcing couples must identify a legal ground before a judge can rightfully terminate the marriage. When you begin preparing your application for divorce, you will need to list the specific reason (or reasons) for your request.

Some states continue to allow parties to pursue a fault divorce, which is where you claim that your spouse's unacceptable behavior during the marriage caused your relationship to fail. Although the acceptable fault grounds vary from state to state, the most common include abuse, desertion, addiction, and adultery.

All states give couples the option to request some form of no-fault divorce, which courts usually base on incompatibility (or irreconcilable differences), which means that you and your spouse have attempted to work through your issues, but no amount of therapy, time, or intervention will help you reach reconciliation. The most attractive feature of no-fault divorce is that the court doesn't need to know the intimate details of your marriage, and as a result, neither spouse needs to point fingers or place blame for the breakup. Many states also allow couples to divorce based on a separation of a certain period of time.

No-Fault Divorce Is Available in South Dakota

We've all seen the courtroom drama where couples are screaming at each other across a conference room table or the episodes of TMZ that share intimate details of the hot celebrity divorce of the week. Fortunately, most divorce cases in real life settle long before getting to the point of becoming prime time television worthy.

For couples who prefer to leave the drama to the actors, South Dakota offers the option of filing for no-fault divorce. Spouses must allege irreconcilable differences as the reason for divorce, meaning the problems in the marriage are so substantial that it's not practical to continue living together as a married couple. The judge will grant your request for a divorce if you testify or make a statement that your marriage is beyond repair.

If your spouse denies that your relationship is over, the court can delay your divorce for up to 30 days. During this period, the court encourages couples to work things out, but the waiting period doesn't require either spouse to change their opinion of the status of the marriage. If you don't reconcile after the 30 days, the court will grant your request for a divorce. This type of delay is rare, but because the court favors marriage over divorce, if the judge sees a hint of possibility for saving the relationship, a delay may be granted.

Fault Divorce Is Available, But More Problematic

In most cases, no-fault divorce is the right path for the divorcing couple. However, if you can't prove that you and your spouse have suffered irreconcilable differences, or if you would like the court to grant your divorce based on your partner's marital misconduct, you can request a fault-based divorce.

Like no-fault divorce, you must tell the court your reasons for pursuing a fault divorce. The accepted fault grounds in South Dakota include:

  • adultery committed by either party during the marriage
  • extreme cruelty
  • willful desertion
  • habitual intemperance
  • willful neglect, or
  • conviction of a felony.

In contrast with no-fault divorce, which only requires one spouse to make a statement about the state of the relationship, if you request a fault divorce, you will need to meet the requirements of the legal ground, and prove that your spouse committed the behavior you are alleging.

For example, if you file for divorce based on your spouse's willful desertion of the marriage, you will need to demonstrate the following:

  • the offending spouse left the marriage voluntarily with the intent to desert, and
  • the deserting spouse has been away for a minimum of one year.

It's important to understand that if your spouse left home for a period but returned before the one-year statutory period expires and asked for forgiveness, you can't file for divorce using desertion as your reason. In fact, if you don't accept the apology, the court will consider you as the deserting spouse from the time your spouse returns.

A fault divorce is complicated and can lead to higher legal fees, messier emotions, and a long legal process. If you are preparing to travel the road to divorce, it's always advisable to consider no-fault first.

Can the Court Deny My Divorce?

Yes, the court can deny your divorce, but only in limited circumstances. Just as couples have the right to marry freely and without court intervention, parties also have the right to divorce, which is the reason all states offer some form of a no-fault divorce process. That said, the divorce process is a legal one with many requirements, and if you don't meet the standards, the judge can't approve your request.

In South Dakota, the court can deny your application for divorce if a judge finds any of the following conditions apply to your case:

Connivance

Connivance is the legal term for corrupt consent, meaning you tell the court that your spouse committed misconduct, like adultery, but in reality, you convinced the spouse to participate in the prohibited act. For example, if you encouraged your spouse to have an affair, you can't ask the court to grant you a fault divorce based on that act.

Collusion

Collusion is an agreement between the spouses that one of them will commit (or say they committed) an act that would qualify the couple for a fault divorce. For instance, if one spouse desires to pursue a fault divorce based on extreme cruelty, a court would deny the request if it finds that both spouses agreed to invent the abuse for the divorce.

Condonation

Condonation is a fancy way of saying forgiveness. If you find out about your spouse's bad behavior, but forgive them and continue living together as a married couple, you can't request a divorce based on that misconduct.

Failure to meet residency requirements

Like most states, South Dakota has a residency requirement that you must meet before you can file for divorce. Couples must be a resident at the time they submit the divorce application and must remain living in the state until the court finalizes the divorce. Additionally, there is a mandatory 60-day waiting period before the court can take any action on the case, which means it will be at least two months before you will be divorced.

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