South Dakota recognizes both fault and no-fault grounds for divorce. No-fault divorces are based on irreconcilable differences, meaning the marriage is broken and cannot be repaired. Fault-based grounds include adultery, extreme cruelty, abandonment for one year, habitual intemperance, conviction of a felony, and willful neglect of duties. South Dakota Codified Laws § 25-4-2 governs the grounds for divorce.
The filing spouse must petition the circuit court in the county where either spouse resides. Filing requires completion of the Petition for Divorce form, which must include information about marital property, debts, children, and custody arrangements if applicable. The petition must be served on the other spouse according to South Dakota rules of civil procedure, which typically requires service by a sheriff or authorized process server.
South Dakota has unique residency requirements. You must be a resident of South Dakota when filing, but there is no minimum length-of-residency requirement before filing. Once you file, you must remain a resident of the state until the divorce is final. If the respondent is not a resident, the court must still have personal jurisdiction over them, which may be established through long-arm jurisdiction if they have sufficient contacts with the state.
South Dakota follows the equitable distribution model for dividing marital property. This means that marital assets and debts are divided fairly but not necessarily equally. The court considers numerous factors when determining a fair division, including the length of the marriage, the age and health of both spouses, the contribution of each spouse to the acquisition of marital property, the earning capacity of each spouse, and the future financial security needs of each party.
Property acquired during the marriage is generally considered marital property subject to division, while property owned before the marriage or acquired through inheritance or gift is typically considered separate property and remains with the original owner. However, separate property may be considered when determining a fair overall division of all assets and debts.
Courts examine factors such as whether a spouse sacrificed career advancement to support family, the conduct of the parties during the marriage (in limited circumstances), and the economic circumstances of each party after the divorce. The goal is to achieve a result that is just and equitable given all the circumstances of the particular case.
South Dakota uses the "best interests of the child" standard to determine custody arrangements. This comprehensive standard requires courts to consider the physical, mental, and emotional health and needs of the child; the love, affection, and other emotional ties existing between the child and each parent; the capacity and disposition of each parent to care for the child; and the child's adjustment to the home, school, and community.
Custody may be awarded as sole custody to one parent or joint custody to both parents. Joint legal custody means both parents share decision-making authority over education, health care, and other important matters. Joint physical custody means the child spends significant time with both parents. South Dakota law presumes joint custody is in the child's best interest unless evidence shows otherwise.
When sole custody is awarded, the non-custodial parent typically receives parenting time with the child. The court establishes a schedule that provides the child with regular contact with both parents while maintaining stability. Considerations include the geographical location of each parent, the work schedules of both parents, and the child's existing relationships and activities.
The mandatory 60-day waiting period is the minimum timeline, but most divorces take 3 to 6 months depending on complexity and whether both parties agree on all issues. Contested divorces may take much longer if court proceedings and trials are necessary.
No. The 60-day waiting period mandated by SDCL § 25-4-34 cannot be waived under any circumstances, even if both spouses consent and the divorce is completely uncontested.
You are not required to hire an attorney, but divorce law is complex and representation can help protect your rights, especially regarding property division and custody matters. Self-help resources are available through the South Dakota State Bar and local legal aid organizations.
South Dakota uses an income shares model that considers the gross income of both parents, the percentage of time each parent has custody of the child, childcare costs, health insurance costs, and other relevant factors. The court applies the statutory guidelines unless there are circumstances justifying deviation from the standard amount.