Family Law — The Law Office of George Nelson

Common Questions Regarding Family Law Cases

How can I get a dissolution of marriage (divorce) in South Dakota?

In general both parties need to agree that the marriage is “irretrievably broken”– in other words it cannot be put back together through marriage counseling or any other means. Generally speaking, few people ever contest whether the marriage is irretrievably broken. Also, one party to the marriage must be a South Dakota resident immediately preceding the filing of the petition for divorce. If the divorce is contested, you will have to assert grounds for the divorce (e.g., adultery, extreme cruelty, etc.).

How long does a divorce take in South Dakota and does it matter who files first?

It doesn’t matter who files first. As to how long the case will take, that depends on whether it is contested or uncontested. An uncontested divorce means that both parties agree on absolutely everything such as child support, timesharing with minor children, division of property and debts and alimony, if any. In South Dakota a divorce cannot be finalized unless 60 days have gone by since the service of the summons. If the matter is contested, that is there are one or more issues which the Court has to decide, such as child support or alimony, etc., the case can take about 4-6 months or more to be heard depending upon the need for a child-custody evaluation.

If I am a South Dakota resident but temporarily reside out of state, can I still consider myself a resident for purposes of getting a divorce?
That issue will be up to the Court but if the Judge decides that you are truly a South Dakota resident who is for example working for a corporation outside the state, or visiting elsewhere for a short period, etc., you will probably still be considered a South Dakota resident and can get a divorce. On the other hand if the Court determines that you really have no intention of coming back, or that you realistically are permanently living elsewhere although you may travel back and forth to South Dakota from time to time, you probably will not be considered a South Dakota resident. Also, if you are in the military, the fact that you are stationed outside of South Dakota does not detract from your South Dakota residency.

What if I am not married to the parent of my child?
First, you need to establish paternity through scientific testing which can be ordered by the Court. Then child support and timesharing/visitation issues will be decided pretty much the same as in a South Dakota divorce case.

What is the first step towards getting divorced in South Dakota?
If you meet the residency requirements and your marriage is irretrievably broken, a Petition for Dissolution of Marriage is filed which outlines any claims that you have for things like child support, timesharing with minor children, alimony, division of property and debts, etc. In general, the other party has to be served with the papers by a process server and then the requirements of various court rules and procedures come into effect. Also, where children are involved, South Dakota law now requires that the parties complete a “Children and Divorce” type seminar or class.

What if I do not want a divorce but do want the Court to determine child support and/or alimony?
A Petition can be filed to accomplish this.

Can one lawyer represent both parties and does each party always have to have a lawyer?
One lawyer should not represent both parties. In general it is impossible to represent the interests of two people who may in fact have different goals. Do not rely on your spouse’s attorney to protect your interests as that lawyer is getting paid to be your adversary. On the other hand, if an agreement can be reached, then the spouse who does not have a lawyer can still communicate with the other parties attorney to work out details and hence avoid hiring a lawyer. (as long as they recognize that that attorney is their adversary.)

What is the best route to take?
You will save a lot of time, money and aggravation if you can get an agreement with your spouse on all issues such as child support, timesharing with minor children, division of property and debt and alimony if any. Obviously this is easier said than done but if you can do it, a lawyer can draw up a settlement agreement and the matter will be fairly inexpensive compared to a contested South Dakota divorce. If you cannot agree on one or more issues you will need to go to Court for the Judge to decide these issues. Try and sit down with your spouse and work out details. It may take several meetings to conclude matters. If you have a spouse that thinks they’re going to run the show, remind them that only the Judge runs the show. And without threatening, remind them that this matter can be done the easy way or the hard way.

What if my spouse is violent or harasses me?
In an extreme situation of course the police must be called. Aside from that, in South Dakota there is a procedure for getting a restraining order if your spouse is guilty of certain conduct, without notifying your spouse of your efforts to get one. (consult the clerk of court or a lawyer) If the Court does issue a restraining order on this basis (“ex parte”) there will be a hearing within a number of days after issuance of the restraining order where your spouse can come in to Court and defend themselves. This procedure can be used even before the divorce process begins. Once the divorce process begins, the Court can order your spouse out of the house if things are bad enough (especially where children are involved) as well as order your spouse to stay away from you. These matters have priority in the Court system and do not have to wait until the absolute end of the case.

What if I need temporary alimony or child support, or a distribution of assets before the final hearing in my case, but my spouse will not pay?
There is a procedure for going into Court almost immediately after the divorce case is filed to get an order of temporary child support, alimony, or other relief, such as timesharing with minor children until such time as the case can be fully heard. Also, you can apply for a distribution of some of the marital assets while the case is pending, if there are extraordinary circumstances.

What if I cannot afford a lawyer to represent me?
Aside from the possibility of Legal Aid representation if your income is such that you qualify for their help, there may be a chance that the Court will order your spouse to pay your attorneys fees. This can occur if your spouse earns substantially more than you. If this is the case, you should talk to an attorney about getting paid if and when the Court orders your spouse to pay your fees. Be aware however, that if you have money for a lawyer, although your money may be less than your spouse’s, that the attorney is unlikely to agree to this as the court may well not order that you get reimbursed for fees. Also, attorneys like everyone else don’t like to do work unless they get paid quickly. The chance that a lawyer will agree to wait for their money increases if there’s money or assets which they can place a lien on or if your spouse has a longstanding job with a healthy paycheck and you have no money for fees.

Are divorce cases heard by a judge or jury?
A judge.

How do I get child support, alimony or timesharing with minor children modified once it is set?
As to child support one must show a “substantial change in circumstances”. What this often means is that your spouse’s income has increased markedly, or that your income or financial situation has changed substantially.

field with blue sky and green plants. attorney at law

How can mediation help my case?
Many cases are resolved at mediation. It is a lot cheaper to have a mediator involved with a case than to pay lawyers to do the great deal of work necessary to prepare for trial before the Court. Mediators cannot force a settlement on anyone but they can certainly use their skills to show people what would be a reasonable settlement, and further advise them as to what the Court may do if their is a trial. Sometimes it is just good to have a neutral party that both sides will listen to assist with the settlement negotiations. (Ideally, the mediator should be a lawyer well-versed in divorce issues, or at least a South Dakota Supreme Court certified mediator) You often shouldn’t go to mediation though until the discovery process (depositions and the exchange of financial documents) has provided you with a complete picture of your family finances (including your spouse’s) and all aspects of, and the strengths and weaknesses of your case.

Should I represent myself?
Unless you have legal training or the case is extremely simple it is best to have a lawyer advise you. Without legal training it is difficult to know what your rights and responsibilities are. If you do not know what your rights are, you may not ask for them or you may agree to things that you don’t need to agree to. Also, without a complete knowledge of the rules of evidence, you may not be able to get certain testimony or evidence admitted into Court and you may therefore lose on a particular aspect of your case, despite the fact that you were “right”. Judges cannot help people practice law, and cannot relax the rules of evidence in Court just because you are not a lawyer.

Can I use my maiden name after the divorce?
You need to put in the petition for divorce in South Dakota that you wish to be restored to your maiden name. The Court can order that for example, as long as you are not changing your name to avoid creditors.

What if I cannot find my spouse? Can I still get a divorce?
Yes. After you conduct a diligent good faith search which is required by South Dakota law. (There is a standard list of reasonable steps that you need to take to find your spouse such as writing to the Department of Motor Vehicles and talking to family and friends who may know the whereabouts of your spouse. You also have to publish the matter in an appropriate newspaper for the appropriate period of time and then you will be able to get a divorce. However, the Court will not have the ability to order any division of property or alimony for example, until such time as your spouse is found and served with the papers.

What if I am not married to the parent of my child?
First, you need to establish paternity through scientific testing which can be ordered by the Court. Then child support and visitation issues will be decided pretty much the same as in a divorce case.

What if I need temporary alimony or child support before the final hearing in my case, but my spouse will not pay?
There is a procedure for going into Court almost immediately after the case is filed to get an order of temporary child support, alimony, or other relief, such as timesharing with minor children until such time as the case can be fully heard.

How is child support calculated in South Dakota?
There is a formula in the statute which is known as the Child Support Guidelines. Basically the parties’ combined net income is considered along with the number of children. The statute then gives a figure for the total support needed for the children. From this it can be determined how much support a parent will pay. The living expenses of the paying parent are not in general considered except in extreme circumstances.

Can the Courts deviate from the Child Support Guidelines?
In general the Courts have the discretion to deviate upward or downward but there needs to be legally sufficient reasons put forth by the Court..

Do the Child Support Guidelines take into account such things as health insurance and day care needs for the child?
Yes. The statute describes how these items are to be factored into the child support equation.

What if my spouse does not report all of his income or is not earning as much as he/she could with regard to calculating child support and alimony?
Courts can “impute” income to a spouse. What that means is that if it is shown that they are capable of making more than they earn, the Court will calculate the child support or alimony as if they made the higher amount. Also, if the spouse is making money under the table or otherwise not reporting all income, it will be your burden to show that this is occurring. (so that they will have to pay the proper amount of child support or alimony.)

What if my spouse will not let me see my children?
You can go to Court immediately to get the Judge to order visitation. A party can of course be held in contempt of Court for failure to honor a Court’s visitation order. And if one does not honor visitation orders, that can be considered when the Court determines the parties timesharing rights regarding children.

Aside from timesharing, do I have a right to be involved in decisions concerning my children?
Yes, South Dakota law provides for “shared parental responsibility” where both parties have a say with regard to important child related issues such as health, education, religion, etc.

Can the Court order supervised visitation if a parent is a danger to the child?
Yes, but it is your burden to show that there is an actual danger to the child and not that you just happen to dislike the other parent. Also, Courts in general are not going to find that the child is in danger just because your spouse is bringing your child into the presence of their new romantic interest.

What if my spouse is not paying child support, can I deprive them of visitation?
In general the answer to this is no.

What if my spouse will not pay support as ordered?
The Court can order the support to be taken directly out of the person’s paycheck and of course people can be held in contempt for failure to pay court ordered support. As well, a driver’s license or other licenses can be suspended for failure to pay child support. Lastly, if a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program.

What if I haven’t attempted to collect child support in years.
In general there is no statute of limitations on child support collection. But there is a concept known as “laches” that may preclude collection in cases where there’s an extreme delay in efforts to collect and the other party is prejudiced by the delay.

How old does the child have to be before they can decide who they want to live with?
Children do not have the right to decide at any age. But a Court may well consider the wishes of a mature 12 year old, but not the wishes of an immature 15 year old. The Court is concerned with what is in the best interest of the child and not simply what the child wants. Sometimes however Courts feel, especially with much older children, that there is little that they can do to force them to live with someone.

Do I have to go to Court to terminate child support at either 18 or 19?
Yes, under certain circumstances.

What if the children born during the marriage are not the children of both parties?
Children born during the parties’ marriage are presumed to be the children of the parties unless that presumption is rebutted by proof that someone else is the parent. That proof can be in the form of a blood test/dna result or other testimony or proof, but in general scientific testing is the best evidence.
If it can be agreed by the husband and wife (or if it can be proven for example by the husband) that the Husband is not the biological father of a child born during the marriage, then there needs to be an action for termination of parental rights. A termination means that the Husband will not be the legal father of the child and he will have no rights or responsibilities regarding the child. (such as timesharing rights or child support responsibilities.) Note that it would be extremely difficult to come back after the divorce and allege that a child was not the child of the parties.

How is property divided in South Dakota?
As a general rule, property acquired during the course of the marriage is equitably divided regardless of who is to blame for the marriage dissolving.

How is responsibility for marital bills and debts decided?
The Court is usually required to order each party to pay an equal portion of the debts. The Court can order an unequal disribution of debt, but disparity in income alone is not grounds for an unequal distribution. If one party ran up some totally unnecessary bills, then they may be responsible for more than they otherwise would. But usually the Court will not sit there and determine who spent more money during the marriage. Be aware however that the credit card companies or other creditors can still come after you for your share of any debt that you are legally responsible for, despite the fact that the divorce judge ordered that your spouse should pay the particular bill.

If I move out of my home, and my spouse has the exclusive use of it, have I abandoned any rights and do I have to help with any of the mortgage?
You will not be abandoning any rights to the property by leaving. As to whether you will have to help with the mortgage or other home related expenses, you may be responsible for alimony or child support which practically speaking will be used for the mortgage. But aside from alimony and child support, you do have an obligation as a co-owner to contribute towards the expenses of this joint marital asset.

What happens if I own some property such as a house before the marriage and then put the property into joint names during the marriage?
In the case of a house, it is presumed that you intended to make a gift to your spouse and it will therefore be joint property to be divided upon divorce. You can try to rebut this presumption with proof that you put it into joint names for some other reason besides a gift. As far as money, if you take some that you had before the marriage and put it into a joint account, in general the Court is going to find that it is marital property subject to division between the parties upon divorce.

If my spouse gets to keep the marital home for whatever reason, can I still be held responsible for the mortgage?
Yes, if you were originally on the mortgage, in general your deeding the property to your spouse does not relieve you of the responsibility for the mortgage. Therefore, if your spouse fails to pay the mortgage the bank can come after you. You may want to talk to the bank about being removed from the mortgage but in general banks do not do this. Unfortunately this may mean that you will have a very hard time getting another mortgage if you want to but another home. The alternative is to ask the Court to order your spouse to refinance the property, but this may not be financially feasible.

Are pension or retirement program assets divided the same as other property?
Yes, in general pension rights (whether vested or unvested) and other retirement assets are divided on a 50/50 basis, although it can be a complicated process to divide them without incurring any liabilities for early withdrawal of the funds. And don’t forget that $10,000 in a bank account is not the same as $10,000 in a pension or 401k type program. If you try and take money out of the latter, you may well incur penalties for early withdrawal and have to pay income tax on the money you take out.

What assets are subject to the 50/50 split?
Property acquired during the course of the marriage by one or both parties is basically subject to a 50/50 split unless there are extraordinary circumstances which require different percentages. There is usually going to be a 50/50 split even though for example one spouse worked ten hours a week while the other spouse worked forty. The acquired property will still be considered a marital asset. In general the Court is not going to start looking into how hard each party worked during the marriage to contribute, although in extreme cases the Court can consider the level of contribution.

Are gifts from one spouse to the other during the course of the marriage subject in general to a 50/50 split?
Yes.

What if I had property before the marriage or attained property during the marriage through inheritance or gift from a third party, and the property grows in value during the marriage?
This can get rather complicated, but the easiest and most historically accurate answer is that if the property grows in value because of natural market forces or inflation, then no portion of the increased value will go to the other spouse. On the other hand, if for example the property involves a business, and the value of the business increases during the marriage because of the efforts of one or both parties, (or because of the contribution of marital assets) then that increased value may well be divided 50/50. The same example can be given for stocks or other assets. Although the stock or other asset may be the separate property of one spouse because it was attained prior to the marriage, or during the marriage through inheritance for example, if it can be shown that the efforts of either or both parties during the marriage led to an increase in value of the asset, then that increase in value may be divided 50/50. Note however that the South Dakota Supreme Court has ruled that the passive appreciation of a marital home during the marriage is a marital asset subject to division between the parties if the home was owned by one spouse before the marriage but the other spouse contributed to the property during the marriage. Thus an argument can be made that the passive appreciation occurring during the marriage of any asset owned by one party before the marriage might be subject to a division between the parties.

What if my spouse is hiding or wasting assets or I don’t know what assets there are?
You may be able to get an injunction stopping your spouse from touching assets and records can be subpoenaed to uncover what assets there are. Also, if you can show that your spouse wasted marital assets, you may be entitled to a credit for your portion of what was wasted when the marital assets are divided at the end of the case. Each party needs to fill out and sign a sworn financial affidavit.(except in simplified dissolutions) If your spouse does not lie about the assets, you will get a complete picture of finances through this and other means.

How is alimony calculated?
Alimony is awarded when there is a need by one party for financial assistance and financial ability on the part of the other party to assist. In general, the longer the term of the marriage and the bigger the difference in earning capabilities of the parties, the more chance for an award of permanent alimony. Permanent alimony is for long-duration marriages if the statutory criteria are met, or for moderate duration marriages if appropriate based on clear and convincing evidence after consideration of statutory factors, It is also for short duration marriage upon written findings of exceptional circumstances. In the award of permanent alimony the court must make findings that no other form of alimony is fair and reasonable.
Also, as a general proposition, the longer the term of the marriage, the more successfully a party can argue that they are entitled to maintain the lifestyle that they are accustomed to and that they therefore need alimony. (However, an award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are exceptional circumstances.) If it can be shown that the party asking for alimony is capable of making more money then they are earning however, that will be considered in determining the amount of alimony if any.

How do I get child support, alimony, or timesharing with minor children modified once it is set?
As to child support one must show a “substantial change in circumstances”. What this often means is that your spouse’s income has increased markedly, or that your income or financial situation has changed substantially.

What if my spouse is committing adultery?
In general, the relevance of adultery is where you can show that they have spent marital funds (which you in general are entitled to half of) on the third party.

DISCLAIMER: The answers provided on this website are not substitutes for the advice of an attorney. No person should ever apply or interpret any law without seeking the help of an attorney. The attorney needs to know the facts of your situation and be aware of any changes in the law before forming and giving an opinion on it. You should not read the responses herein to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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