South Dakota Divorce Laws

When filing for divorce in South Dakota, you need to first look at the state’s divorce laws. Having a basic understanding of these before you file will help you sail through the process with fewer problems.

Who Can File for Divorce and On What Grounds?

In order to file for divorce in South Dakota, you must first meet the state’s residency requirements. The residency requirement is quite generous, stating only that the plaintiff must be a resident of the state at the time of filing.

In South Dakota, couples can file for divorce on a no-fault basis, claiming irreconcilable differences as the primary reason for filing. Those who wish to file a fault divorce can do so on one of the following grounds:

  • Adultery
  • Extreme cruelty (defined as grievous bodily injury or mental suffering imposed on one party by the other)
  • Willful desertion (defined as a voluntary separation of one party from the other with the intent to desert)
  • Willful neglect
  • Habitual intemperance
  • Conviction of a felony

Members of the military who are stationed in South Dakota can also file in the state, provided their military presence or residency is maintained in the state until the divorce degree is entered. However, meeting the state’s residency requirement is not the only factor affecting military members divorcing in South Dakota. They also must follow all aspects of military family law, and thus, may benefit from the help of a qualified attorney who understands the basics of this law.

Division of Property

South Dakota follows the equitable distribution model for distributing marital property. This divides all property based on what is fair, not necessarily equal. When determining how the property will be divided, the courts will not consider fault, except if it directly applies to the acquisition of the property. Factors that can be considered include:

  • Each spouse’s contribution to the acquisition of the property
  • Value of the spouses’ separate property
  • Length of the marriage
  • Age and health condition of each party
  • Current and future earning capacities
  • Value of the property being divided, including any income potential it has

Child Custody

Child custody is always a tricky situation, because of the emotional trauma it can cause for the children. To help ease this, the courts will always strive to make custody arrangements based on what is in the child’s best interests. This could be either sole or joint custody, as determined by the courts. Gender will not be a determining factor. Instead, the courts will look at the following:

  • Marital misconduct, if it affects the child’s well being
  • The child’s wishes, if he or she is old enough and mature enough to state these wishes
  • Expressed desires of the parents


Some cases may include the requirement for one spouse to pay support to the other. While this is not always the case, when determining whether or not support is warranted, the courts will look at the following factors:

  • Length of the marriage
  • Financial repercussions for each party
  • Financial resources of each party
  • Age of the spouses
  • Health conditions
  • Marital fault that led to divorce

In divorces for couples who have children, the Income Shares Model is used to determine any support amount. This divides the support amount proportionate to the parents’ individual incomes. Sometimes, a child’s needs will not be met through this support amount. If this happens, the parents’ assets may be considered, and their borrowing capacity will also be considered financial ability. Childcare expenses may be charged to the non-custodial parent based on the needs as the court views them.