Frequently Asked Questions
Do I need legal grounds for a dissolution of marriage? Maybe. In South Dakota, there are several fault grounds for divorce, namely, Adultery, Extreme Cruelty, Willful Desertion, Willful Neglect, Habitual Intemperance, and Conviction of Felony. There is an additional “no-fault” ground of Irreconcilable Differences; however, both parties must agree to “Irreconcilable Differences” for that ground to be accepted by the Circuit Court Judge.
Is there a residency requirement to file a Complaint for Dissolution of Marriage? Yes. The Plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of the state of South Dakota. There is, however, no time restriction on said residency.
Is there a waiting period to get a divorce in South Dakota? Yes, SDCL Section 25-4-34 provides that, “[a]n action for divorce or separate maintenance shall not be heard, tried, or determined by the court until at least sixty days have elapsed from the completed service of the plaintiff’s summons and complaint therein.”
Do South Dakota courts award alimony or spousal support? It depends on the circumstances of the case. South Dakota courts can award spousal support to be paid while the action is pending and afterwards. The court looks at the circumstances of the parties in determining if spousal support should be ordered and, if so, what amount.
What are the South Dakota Parenting Time Guidelines? Pursuant to SDCL Section 25-4A-10, the South Dakota Supreme Court set forth a series of rules establishing standard guidelines to be used statewide for minimum noncustodial parenting time in divorce and custody actions. These guidelines provide a framework for parenting time for the noncustodial parent including frequency and duration of parenting time based upon the age of the child or children.
Does South Dakota recognize a common law marriage? In general, South Dakota law does not recognize common law marriage. However, it will recognize the validity of a common law marriage which is valid under the laws of the jurisdiction in which it was entered. See SDCL Section 25-1-38.
What factors do South Dakota courts consider in awarding custody? In Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (SD 1999), the South Dakota Supreme Court set forth the following factors for consideration in determining the best interest of a child:
- Fitness – The court will determine which parent is better equipped to provide for the temporal, mental and moral welfare of the child. Relevant considerations include: each parent’s capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.
- Stability – Relevant considerations related to which parent can provide a consistent and stable home environment include: the relationship and interaction of the child with the parents, step-parents, siblings and extended families; the child’s adjustment to home, school and community; the parent with whom the child has formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment; continuity, because when a child has been in one custodial setting for a long time pursuant to court order or by agreement, the court is reluctant to make a change if only a theoretical or slight advantage for the child might be gained.
- Primary Care Taker – The court will determine which parent is more committed and involved in parenting the child.
The primary caretaker can be identified by determining which parent invested predominant time, care and consistency in raising the child. It is evidenced in such matters as spending time with the child, preparing meals, playing, attending to medical care, choosing clothing, involvement in school, attending the child’s extracurricular activities, reading to the child, preparing birthday parties, knowing the pediatrician, consistent disciplining, arranging transportation, and providing appropriate clothing, foods, and toys.
- Child’s Preference – If the child is of a sufficient age to form an intelligent preference, the court may take the child’s wishes into consideration.
- Harmful Parental Misconduct –When parental misconduct has a demonstrable effect on the child, the fitness of the culpable parent is considered by the court.
- Separating Siblings – Siblings and half siblings should not be separated absent compelling circumstances.
Resources:
South Dakota Child Support Calculator
South Dakota Parenting Guidelines
