South Dakota Divorce: Grounds and Process

South Dakota offers both no-fault and fault-based grounds for divorce. The no-fault ground—irreconcilable differences—allows a spouse to end the marriage without proving misconduct. South Dakota also recognizes several fault grounds, including adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, and conviction of a felony. The state does not require a mandatory separation period, but a 60-day waiting period may apply in certain cases.

This article covers each ground for divorce, residency requirements, filing fees, property division, and the step-by-step divorce process in South Dakota.

For a general overview of divorce nationwide, see our complete guide to divorce.

No-Fault Ground: Irreconcilable Differences

South Dakota’s no-fault ground for divorce is irreconcilable differences (SDCL 25-4-17.1). This means the marriage has broken down to the point that the differences between the spouses cannot be resolved and there is no reasonable prospect of reconciliation.

To file on this ground:

• Either spouse may file. There is no requirement that both spouses agree the marriage is irretrievably broken.
• The filing spouse does not need to prove any specific act of misconduct.
• The court will grant the divorce if it determines that irreconcilable differences exist and the marriage cannot be preserved.

The no-fault ground is the most commonly used basis for divorce in South Dakota because it is straightforward, avoids the burden of proving fault, and generally results in a less contentious process.

Fault-Based Grounds

South Dakota recognizes several fault-based grounds under SDCL 25-4-2. Filing on a fault ground requires the petitioner to prove the alleged misconduct by a preponderance of the evidence.

Adultery (SDCL 25-4-2(1))

Adultery—voluntary sexual intercourse with a person other than one’s spouse—is a ground for divorce. The filing spouse must present evidence establishing the adultery. Circumstantial evidence, including evidence of opportunity and inclination, is typically sufficient. Direct proof is not required.

Extreme Cruelty (SDCL 25-4-2(2))

Extreme cruelty includes physical violence, threats of violence, and conduct that causes serious emotional suffering or renders continued cohabitation unsafe or intolerable. The cruelty must be more than ordinary marital disagreements or occasional harsh words. Courts look for a pattern of conduct or particularly severe individual acts.

Evidence may include medical records, police reports, protective order records, photographs, witness testimony, and threatening communications.

Willful Desertion (SDCL 25-4-2(3))

Willful desertion occurs when one spouse voluntarily abandons the other without justification and without consent. The desertion must be intentional and reflect a permanent departure from the marriage. If the departing spouse left due to the other spouse’s abusive or intolerable behavior, the departure may be considered justified and not constitute desertion.

Willful Neglect (SDCL 25-4-2(4))

Willful neglect involves a spouse’s intentional failure to provide the necessities of life—such as food, shelter, clothing, or medical care—when the spouse has the ability to do so. This ground is most relevant when one spouse has the financial means to support the family but deliberately withholds support.

Habitual Intemperance (SDCL 25-4-2(5))

Habitual intemperance refers to a persistent, excessive pattern of alcohol or drug use. The substance use must be habitual—meaning recurring and entrenched—not merely occasional. Evidence may include arrest records, treatment histories, testimony from family members, and documentation of the impact on the marriage and family.

Conviction of a Felony (SDCL 25-4-2(6))

If a spouse has been convicted of a felony after the marriage, this constitutes a ground for divorce. The conviction must have occurred during the marriage, and the spouse must have been found guilty by a court or entered a guilty plea.

Residency Requirements

South Dakota’s residency requirement for divorce is straightforward. Under SDCL 25-4-30, the filing spouse must be a resident of South Dakota at the time of filing the divorce action. There is no minimum duration of residency specified in the statute—the petitioner must simply be a bona fide resident of the state when the complaint is filed.

Bona fide residency means more than a temporary presence. The filing spouse must demonstrate that South Dakota is their actual home—the place where they live and intend to remain. The divorce action should be filed in the circuit court of the county where either spouse resides.

Filing Fees and Costs

The filing fee for a divorce in South Dakota is approximately $95, making it one of the more affordable states in terms of initial court costs. The exact amount may vary slightly by county.

Additional costs may include service of process fees, attorney fees, mediation fees, and appraisal or valuation fees for complex assets. An uncontested divorce—where both parties agree on all issues—is significantly less expensive than a contested proceeding. For more on costs, see our guide on how much divorce costs.

The 60-Day Waiting Period

South Dakota does not impose a mandatory separation period before filing. However, under SDCL 25-4-17.2, when a divorce is filed on the no-fault ground of irreconcilable differences and the respondent does not agree, the court may impose a 60-day waiting period before granting the divorce. During this period, the court may require the parties to attempt counseling or reconciliation.

The 60-day period runs from the date the court orders it, not from the date of filing. If both spouses agree to the divorce, the waiting period is generally not imposed. The waiting period is discretionary, and if fault grounds are alleged and proven, it does not apply.

Equitable Distribution of Property

South Dakota is an equitable distribution state. Under SDCL 25-4-44, the court divides marital property in a manner it considers fair and equitable, which does not necessarily mean equal.

South Dakota courts consider factors including the duration of the marriage, the value of all property, each spouse’s age, health, and earning capacity, contributions to the marriage (both financial and non-financial), each spouse’s separate property, marital fault, tax consequences, and any other relevant factors affecting fairness.

Important note: South Dakota is one of a few states where courts have the authority to divide all property owned by either spouse, regardless of when or how it was acquired. This means that property owned before the marriage, inheritances, and gifts may be subject to division. Courts generally give more weight to protecting separate property in shorter marriages, but in long marriages, all property may be on the table.

Alimony in South Dakota

South Dakota courts may award alimony (also called spousal support) under SDCL 25-4-41. Alimony is not automatic and is awarded based on the circumstances of each case.

Factors the court considers include the duration of the marriage, each spouse’s earning capacity and education, the standard of living during the marriage, age and health of each spouse, financial resources, and marital fault. Alimony may be awarded as permanent support, temporary support (during the divorce process), or rehabilitative support (to allow a spouse to obtain education or training needed to become self-sufficient).

The Divorce Process Step by Step

1. Confirm residency. Verify that you are a bona fide resident of South Dakota at the time of filing.
2. File a Complaint for Divorce. Submit the complaint to the circuit court in the county where you or your spouse resides. Pay the filing fee (approximately $95).
3. Serve the other spouse. The respondent must be formally served with the complaint and summons. Service may be completed by a sheriff, process server, or by certified mail in some circumstances.
4. Respondent files an Answer. The respondent has 30 days to file an Answer and, if desired, a Counterclaim.
5. Possible 60-day waiting period. If the divorce is filed on no-fault grounds and the respondent contests it, the court may impose a 60-day waiting period.
6. Discovery. Both parties exchange financial information, including income, assets, and debts. This phase may involve interrogatories, requests for production of documents, and depositions.
7. Negotiation and settlement. The parties attempt to negotiate an agreement on property division, alimony, custody, and support. Many cases are resolved through negotiation or mediation without going to trial.
8. Trial. If the parties cannot agree, the case proceeds to trial before a circuit court judge. Both sides present evidence and testimony, and the judge issues a ruling.
9. Final Decree of Divorce. The judge signs the final decree, which dissolves the marriage and addresses all contested issues.

For more on the difference between contested and uncontested divorce, see our article on contested vs. uncontested divorce.

What to Do Next

If you are considering divorce in South Dakota, take these steps:

1. Gather financial records. Collect tax returns, pay stubs, bank and investment account statements, retirement account statements, real estate records, and records of all debts. Full financial disclosure is essential.
2. Inventory your assets. Create a comprehensive list of all property owned by either spouse, including when and how each asset was acquired. In South Dakota, all property may be subject to division.
3. Evaluate your grounds. Consider whether to file on no-fault or fault-based grounds. No-fault is simpler, but fault may be relevant to alimony and, in limited cases, property division.
4. Understand the 60-day waiting period. If your spouse is likely to contest the divorce, prepare for the possibility that the court will impose a 60-day waiting period.
5. Consult with a South Dakota family law attorney. An experienced attorney can help you navigate the filing process, protect your property interests, and develop a strategy for your case.

Schedule a free consultation to discuss your South Dakota divorce with an experienced family law attorney.

Frequently Asked Questions

Do I need to be a resident of South Dakota to file for divorce?

Yes. You must be a bona fide resident of South Dakota at the time you file the complaint. However, South Dakota does not require a minimum number of months or years of residency before filing—you must simply be a genuine resident when the action is commenced.

What is the fastest way to get a divorce in South Dakota?

The fastest path is an uncontested divorce filed on no-fault grounds where both spouses agree on all issues, including property division, custody, and support. Without contested issues or a 60-day waiting period, the process can be completed relatively quickly—often within a few months.

Can the court divide property I owned before the marriage?

Yes. South Dakota is one of the few states where courts have the authority to divide all property owned by either spouse, regardless of when it was acquired. However, courts generally give weight to how and when the property was obtained, particularly in shorter marriages.

Does fault affect the outcome of a South Dakota divorce?

Fault can influence alimony awards and, in some cases, property division. A spouse who committed adultery or extreme cruelty may receive less favorable treatment from the court. However, most South Dakota divorces are filed on the no-fault ground, and fault is not always a significant factor in the outcome.

How long does a South Dakota divorce take?

An uncontested divorce may be finalized within two to three months. A contested divorce—particularly one involving disputes over property, custody, or alimony—can take six months to a year or longer. If the court imposes the 60-day waiting period, that adds to the timeline.