South Dakota Codified Laws Title 25, Chapter 4 - Divorce

South Dakota allows divorce on seven grounds: adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, conviction of a felony, and irreconcilable differences. The no-fault option (irreconcilable differences) is the most commonly used, but South Dakota remains one of the states that still permits fault-based divorce.

Effective: 2024

Irreconcilable differences exist when there are substantial reasons for not continuing the marriage and the marriage should be dissolved. For a no-fault divorce, both spouses must consent to the grounds, or the non-filing spouse must fail to appear in the case. If consent is not given and the respondent appears, the court cannot grant a divorce solely on irreconcilable differences.

Effective: 2024

The filing spouse must be a resident of South Dakota or stationed in the state as a member of the armed services at the time the action is commenced. South Dakota has no minimum duration of residency — a person can move to the state and file for divorce the same day, making it one of the most lenient residency requirements in the nation.

Effective: 2024

The court has discretion to grant a divorce when one spouse suffers from chronic mental illness. This is a separate ground from the seven listed in §25-4-2 and is left to the judge's discretion rather than being an automatic entitlement.

Effective: 2024

A divorce must be filed in the circuit court of the county where either spouse resides. The non-filing spouse has the right to request a change of venue to the county where they live, ensuring neither party is unfairly burdened by geography.

Effective: 2024

When a divorce is granted, the court may make an equitable division of property belonging to either or both spouses, regardless of whose name the title is in. South Dakota is an 'all-property' equitable distribution state — the court can divide all assets owned by either spouse, including property acquired before the marriage, inherited property, and gifts. There is no rigid formula; the court considers factors developed through case law including marriage duration, property value, ages, health, earning capacity, contributions of each party, and income-producing capacity of assets.

Effective: 2024

Generally, fault is not considered when dividing property or awarding custody. However, South Dakota case law allows exceptions — a court may consider fault (such as dissipation of marital assets through gambling, addiction, or reckless spending) when it directly impacts the value of the marital estate available for division.

Effective: 2024

Upon personal service of the divorce summons, an automatic temporary restraining order (ATRO) takes effect binding both parties. The ATRO prohibits transferring, encumbering, or dissipating marital assets, harassing the other spouse, and removing minor children from South Dakota without written consent or court order. The ATRO language must be printed directly on the summons.

Effective: 2024

Either party may file a motion to reopen the divorce case when assets were not included in the original property division. This is the gateway statute for South Dakota's post-decree omitted assets framework (§§25-4-75 through 25-4-83), which provides separate remedies and timelines for inadvertently omitted assets versus intentionally concealed assets.

Effective: 2024

When one spouse deliberately hid or concealed assets during the divorce, stricter remedies are available than for inadvertently omitted assets. The court may impose harsher consequences on the spouse who concealed property, and the filing deadline under §25-4-82 may differ from the deadline for accidental omissions under §25-4-81.

Effective: 2024

In a divorce, the court may award custody based on the best interests of the child with respect to the child's temporal, mental, and moral welfare. If the child is old enough to form an intelligent preference, the court may consider it. Neither parent is given preference over the other. Custody orders may be modified when circumstances change.

Effective: 2024

When joint physical custody is contested, the court must consider specific statutory factors including: whether each parent is a suitable custodian, whether each has appropriate housing, whether the child's emotional needs require active contact with both parents, whether either parent has denied contact without just cause, whether each parent can support the other's relationship with the child, whether there has been parental alienation, whether either parent poses a safety risk, and whether a parent allows a registered sex offender unsupervised access to the child.

Effective: 2024

If a court finds that a parent has a history of domestic abuse or an assault conviction, there is a rebuttable presumption that joint physical custody is not in the child's best interests. The abusive parent bears the burden of overcoming this presumption with clear and convincing evidence.

Effective: 2024

South Dakota law does not presume that joint physical custody is in the best interests of children. While the court must consider joint physical custody if either parent requests it under §25-4A-21, there is no automatic starting point favoring equal time. The court makes its determination based on the individual facts of each case.

Effective: 2024

A parent with custody must provide advance written notice before relocating a child. The non-relocating parent can request a hearing to challenge the move. If the relocation is contested, the court evaluates whether the move serves the child's best interests. Exceptions may apply in cases involving domestic violence or immediate safety concerns.

Effective: 2024

The court shall order mediation in custody and visitation disputes unless exceptions apply. Mediation is not required when there is a history of domestic abuse, when mediation services are unavailable, or when the court determines mediation would be inappropriate. The court allocates mediation costs between the parties.

Effective: 2024

Before awarding custody, the court must consider any history of domestic abuse or assault convictions involving either parent. This factor weighs heavily in the best interest analysis and may prevent the abusive parent from receiving primary custody.

Effective: 2024

When a divorce is granted, the court may order one spouse to pay support (alimony) to the other for life or a shorter period as the court deems just. The court considers the circumstances of the parties and may modify alimony orders over time. South Dakota recognizes three types: general alimony (basic living expenses), rehabilitative alimony (education or job training), and restitutional alimony (reimbursement for contributions to the other spouse's education). There is no statutory formula — the court has broad discretion.

Effective: 2024

The court may award temporary alimony to a spouse during the divorce proceedings. This ensures the lower-earning spouse can meet basic needs while the case is pending, covering essentials like housing, food, and legal costs until the final divorce decree addresses permanent support.

Effective: 2024

Both parents have an obligation to support their children financially. An absent parent is liable for child support regardless of marital status. The duty continues until the child turns 18, or 19 if the child is still a full-time high school student. South Dakota also imposes a duty on stepparents to support their stepchildren under §25-7-8.

Effective: 2024

South Dakota uses an income shares model for child support. Both parents' monthly net incomes are combined to determine a baseline obligation from the schedule, which covers combined net income up to $30,000/month. The obligation is then divided proportionally between parents based on their respective incomes. The schedule includes a self-support reserve of $871/month for the obligated parent with limited ability to pay.

Effective: 2024

The court may deviate from the standard child support schedule based on specific factors including: the financial condition of either parent, a child's special needs, the standard of living the child would have enjoyed had the family remained intact, new spouse income (only if guideline amount causes financial hardship), and support obligations for children from other relationships.

Effective: 2024

Child support orders entered before July 1, 2022 may be modified without showing a change in circumstances. Orders entered after that date can only be modified if the order is at least 3 years old, or if a substantial change in circumstances has occurred. Either parent or a legal representative may petition to modify, and a $50 filing fee applies.

Effective: 2024

When a child spends at least 180 nights per year in each parent's home (shared physical custody), a separate shared parenting worksheet applies. Each parent's obligation is calculated and cross-credited, typically resulting in the higher-earning parent paying the difference between the two amounts rather than the full guideline obligation.

Effective: 2024

South Dakota imposes a mandatory 60-day waiting period from the date the summons and complaint are served on the respondent before any hearing, trial, or final judgment can occur. This waiting period applies to all divorce types — contested, uncontested, and default — and cannot be waived or shortened under any circumstances. Temporary orders and preliminary proceedings may occur during the waiting period.

Effective: 2024

When a petition for divorce is filed based on irreconcilable differences, the court may grant a legal separation instead of a divorce if it determines there is a reasonable possibility of reconciliation. The court can continue the action and enter temporary orders regarding support, custody, and property during the continuance period.

Effective: 2024

In uncontested cases, the court may accept sworn affidavits to establish jurisdiction and grounds for divorce rather than requiring in-person testimony. This allows certain simple divorces to be finalized without a full trial or court appearance, streamlining the process for couples who agree on all terms.

Effective: 2024

A spouse may seek separate maintenance (legal separation) without obtaining a divorce. The court can award alimony and support in a separate maintenance action, allowing spouses to live apart and resolve financial issues while remaining legally married — which some choose for religious, insurance, or personal reasons.

Effective: 2024

The filing party in any divorce or custody action involving minor children must file and serve the South Dakota Parenting Guidelines along with the summons. If neither party objects, these guidelines become the court-ordered parenting time plan. If a parent disagrees, they may file a written objection for a hearing where the judge will determine the schedule.

Effective: 2024

All court orders regarding alimony, support, property division, and custody are subject to review on appeal. This provides an important safeguard — either party can appeal to the South Dakota Supreme Court if they believe the trial court abused its discretion in these matters.

Effective: 2024

Any family or household member (spouses, former spouses, persons who share a child, or current/former cohabitants) who has been physically abused or threatened with physical abuse may petition for a domestic violence protection order. The petition can be filed without an attorney. If immediate danger is alleged, the court may grant an emergency ex parte temporary order under §25-10-6 without notice to the abuser.

Effective: 2024

Upon finding domestic abuse, the court may order the abuser to vacate the shared home, stay away from the victim's home, school, and workplace, cease all harassment and threats, and surrender firearms. The court may also address temporary custody and support. Protection orders have specific time limitations but may be extended.

Effective: 2024

Under South Dakota's Uniform Premarital Agreement Act (§§25-2-16 to 25-2-25), prenuptial agreements must be in writing, signed by both parties, and entered into voluntarily. A prenup can address property rights and division but cannot waive the right to alimony — South Dakota courts have consistently held that spousal support provisions in prenuptial agreements are unenforceable as against public policy (Sanford v. Sanford, 2005).

Effective: 2024

A spouse may have their former or maiden name restored as part of the divorce decree. The request is included in the divorce petition and final judgment. If not requested during the divorce, a separate name change petition under SDCL Chapter 21-37 is required, which has a six-month residency requirement.

Effective: 2024

South Dakota allows grandparents to petition the circuit court for visitation rights with their grandchildren. The court may grant visitation if it is in the child's best interests, taking into account the existing relationship between grandparent and child. Grandparent visitation rights are enforceable through contempt proceedings.

Effective: 2024

The court may require parents to attend an approved parenting education course in custody and visitation cases. These courses typically cover the impact of divorce on children, effective co-parenting communication, and strategies for minimizing conflict. Completion may be required before the court finalizes custody arrangements.

Effective: 2024