The law relating to divorce in the State of South Dakota is governed by Title 25 of South Dakota Statute.
The spouse filing for divorce must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of the filing and must remain a resident until the divorce is final. There is no durational residency requirement. The divorce may be filed for in the county where either spouse resides, but the defendant has the right to have it transferred to his or her county of residence if desired. In addition, there is a 60-day waiting period after filing before a hearing will be held or the divorce will be granted.
GROUNDS FOR DIVORCE
No-Fault: Irreconcilable differences which have caused the irretrievable breakdown of the marriage.
The grounds for legal separation (separate maintenance) in South Dakota are:
The spouse filing for legal separation must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of the filing and must remain a resident until the legal separation is final.
If both spouses consent to the use of "irreconcilable differences" as the grounds for divorce, the court may grant the divorce based entirely on affidavits of the spouses which establish the required residency and grounds for the divorce. In such cases, a personal appearance in court by either of the spouses will not generally be required.
MEDIATION OR COUNSELING REQUIREMENTS
If the court determines that there is a reasonable possibility for reconciliation between the spouses, the divorce proceedings can be delayed for up to 30 days while the spouses seek counseling. [South Dakota Codified Laws; Title 25, Chapters 25-4-17.2].
South Dakota is an "equitable distribution" state. All of the spouse's property is equitably divided by the court. Marital fault is not to be considered unless it is relevant to the acquisition of property during the marriage. The only factor specified in the statute is a consideration of the circumstances of the spouses. South Dakota courts have interpreted this to include the following factors for consideration:
ALIMONY & SPOUSAL SUPPORT
Either spouse may be awarded maintenance for life or a shorter period. The only factor specified in the statute is a consideration of the circumstances of the spouses. South Dakota courts have interpreted this to include the following factors for consideration:
Sole or joint child custody is to be awarded based on the discretion of the court and the best interests of the child. Fault is not to be considered unless it is relevant to the fitness of a parent to have custody. Neither parent is considered the preferred parent based on the parent's sex. The preference of the child may be considered. In joint custody decisions, the court may consider the expressed desires of the parents and the best interests of the child. No other specific factors are specified.
Either or both parents may be ordered to provide child support. There is an official child support obligation schedule set forth in the statute. Deviation from the official schedule may be based on a consideration of the following factors:
The agreement must be in writing and signed by both parties and is enforceable without consideration. The agreement will not be enforced if it is proven that