Filing for Divorce in South Dakota

• Adultery, which the state defines as voluntary sex between a married person and a member of the opposite sex to whom he or she is not married.
• Extreme cruelty, which might be mental suffering or physical injury.
• Willful desertion, which can be mean several things: refusing to have sex with your spouse when health is not an issue; refusing to live with your spouse; persuading your spouse to leave home and, while he or she is gone, moving out; or refusing to reconcile after separation. Your spouse must have been gone for at least a year to file based on willful desertion.
• Willful neglect, when your spouse refuses to contribute toward the basic necessities. The situation must have continued for at least a year to file based on willful neglect.
• Habitual intemperance, meaning your spouse drinks enough to be unable to function. The situation must have continued for at least a year to file based on habitual intemperance.
• Conviction of a felony.
• Irreconcilable differences, which means the court finds clear reasons to end your marriage.  
• Chronic mental illness also may be a ground for divorce. If your spouse suffers from incurable, chronic mania or dementia and has been in a mental institution for five years or more, the court may grant a divorce.  

The court will deny your divorce if it finds any hint of: 

• Connivance, which means you allowed your spouse to commit one of the acts above so that you could get a divorce.
• Collusion, meaning you and your spouse agreed to commit or make it appear that you committed one of the acts above to get a divorce.
• Condonation, which means you knew that your spouse committed one of the acts above; you forgave him or her; and you resumed your marital relationship.
• Lapse of time, meaning there was such a delay between the action and your filing that it implies connivance, collusion or condonation.  

4. How does South Dakota determine the division of property?    
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. The court will divide your property in whatever way seems equitable, or fair, regardless of to whom the property belongs or whose name is on the title. It will weigh you and your spouse’s circumstances, but it will not consider who is at fault in your divorce unless that’s relevant to how your property was acquired during your marriage.  

5. Does South Dakota require mediation before a divorce is granted?  
Mediation is not always a requirement, though the court may order it in your case if you and your spouse disagree over child custody or visitation (unless one of you has been convicted of or has a history of domestic abuse or assault).