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- What are the residency requirements to file for divorce in South Dakota?
- What are the grounds for divorce in South Dakota?
- What else do I need to know about getting a divorce based on irreconcilable differences?
- Can I get alimony/maintenance?
- What are the basic steps for filing for divorce?
- Where can I find additional information about divorce?
What are the residency requirements to file for divorce in South Dakota?
To get a divorce in South Dakota, you must be a resident of South Dakota or a member of the military stationed in South Dakota at the time you file. You do not have to be living in South Dakota during the divorce proceedings to be granted a divorce.1
1 SDCL § 25-4-30
What are the grounds for divorce in South Dakota?
Grounds are legally acceptable reasons for divorce. You can get a divorce in South Dakota without claiming that your spouse is at fault (a “no-fault” divorce). The judge can grant you a no-fault divorce if the judge finds that there are irreconcilable differences between you and your spouse. Irreconcilable differences exist when there are substantial reasons for the marriage to end.1
The judge can also grant you a divorce in South Dakota if you claim that your spouse was responsible (at fault) for the divorce for any of the following reasons:
- Adultery - your spouse has sexual intercourse with someone else of the opposite sex after you’re married;2
- Extreme cruelty - your spouse causes you serious physical injury or causes you serious mental suffering;3
- Willful desertion – your spouse leaves you with the intent to leave the marriage. It is not “willful desertion” if you and your spouse separate with the knowledge that one of you is planning to file for divorce. “Willful desertion” can also mean:
- your spouse regularly refuses to have sexual intercourse when there is no physical or mental reason for her/him to do so;
- your spouse tricks you into leaving your home, and then abandons the marriage;
- your spouse is cruel or threatens bodily harm to you, and you are forced to flee the marriage to avoid reasonably expected danger;
- your spouse leaves temporarily, and then decides to leave permanently while s/he is gone; or
- your spouse refuses a good faith effort by you to get back together (reconcile) and fix the marriage;4
- Willful neglect – your spouse refuses to provide for your common needs, even though s/he can afford to do so, or because of laziness (idleness), extravagant habits (profligacy), or wastefulness (dissipation); 5
- Habitual intemperance – your spouse is under the influence of alcohol so often that s/he can’t manage normal activities, or so often that it causes you intense emotional distress;6 or
- Conviction of felony – your spouse is convicted of a felony during your marriage.7
1 SDCL § 25-4-17.1
2 SDCL § 25-4-3
3 SDCL § 25-4-4
4 SDCL §§ 25-4-5; 25-4-8 through 25-4-13
5 SDCL § 25-4-15
6 SDCL § 25-4-16; Connelly v. Connelly, 362 N.W.2d 91 (1985)
7 SDCL § 25-4-2
What else do I need to know about getting a divorce based on irreconcilable differences?
In addition to the fault-based grounds explained in What are the grounds for divorce in South Dakota?, the judge may grant you a divorce based on “irreconcilable differences.” To get a divorce because of irreconcilable differences, one of the following must be true:
- you and your spouse must both agree (consent) to a divorce on the grounds of irreconcilable differences; or
- the spouse who was served with the divorce petition does not appear in the divorce case (does not make a “general appearance”).1
Note: If it appears to the judge that there is a reasonable possibility of you and your spouse being able to save your marriage (reconciliation), the judge will continue the case for up to thirty days. During this time, the judge can enter a temporary order dealing with any of the following issues:
- support (also called maintenance or alimony);
- custody;
- child support;
- attorney fees; and
- an order related to joint property.1
At any time after this thirty-day period ends, either spouse can file a motion in court for divorce (dissolution) or legal separation and the judge can grant it.1
1 SDCL § 25-4-17.2
Can I get alimony/maintenance?
Alimony, also called maintenance or support in South Dakota, is financial support paid by, or to, your spouse. A judge may grant alimony1 after considering your and your spouse’s:
- marriage length;
- potential ability to earn an income;
- financial conditions after property is awarded in the divorce case;
- ages, health, and physical condition;
- social standing; and
- responsibility, if any, in causing the marriage to end.2
1 SDCL § 25-4-41
2 Vandyke v. Choi, 888 N.W.2d 557, 2016 S.D. 91
What are the basic steps for filing for divorce?
While divorce laws vary by state, here are the basic steps:
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First, you must meet the residency requirements of the state in which you wish to file.
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Second, you must have “grounds” (a legally acceptable reason) to end your marriage.
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Third, you must file divorce papers and have copies sent to your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)
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Fourth, if your spouse disagrees with anything in the divorce papers, he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does not disagree with anything, he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.
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Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.
You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?
Where can I find additional information about divorce?
We hope the following links to outside sources may provide helpful information.
The South Dakota Unified Judicial System provides court forms for individuals who wish to get a divorce by filing on their own.
WomensLaw.org is unrelated to the above organization and cannot vouch for the accuracy of their site. We provide these links for your information only.
You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.
