South Dakota Divorce Law: Grounds for Divorce

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Divorce may be defined as the legal dissolution of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states like South Dakota commonly grant divorces because forcing a couple to stay married when it is against their wishes may go against public policy.

 

"No-fault" and "fault" are the two types of grounds, or justifications, for divorce in the United States. In some states, no-fault is the only acceptable justification for divorce, even if fault grounds exist within the marriage. The other states, including South Dakota, allow the parties to select either a no-fault or a fault divorce.  

 

The United States first adopted the concept of a no-fault divorce in the late 1960's, and nearly all of states currently allow some form of it. A no-fault divorce is one in which the spouse suing for divorce does not have to prove fault, or wrongdoing, on the part of the other spouse in order to obtain the divorce. Some examples of the bases for a no-fault divorce include “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” The no-fault basis of irreconcilable differences is available in South Dakota, and the court decides whether or not substantial reasons exist to support not continuing the marriage.

 

Many states require a "cooling-off" period of separation for a duration of time before no-fault divorce proceedings can begin. During this time, the couple is required to live separately with the intent that the separation will become permanent. The duration of the cooling-off period varies according to state law.  In South Dakota, the waiting period is for 60 days after the service of the summons and complaint for divorce.

 

Some states also allow fault grounds for divorce.  According to SDCL 25-4-2, fault grounds for divorce in South Dakota include adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, and conviction of a felony. Extreme cruelty is described as the infliction of “grievous body injury or grievous mental suffering.” Willful desertion means the voluntary separation of the spouses with the intent to desert. Willful neglect is the failure to provide the common necessities of life. Habitual intemperance describes a spouse who is maintaining a high degree of intoxication, which prevents him or her from properly attending to business activities. Chronic mental illness, including incurable, chronic mania or dementia, which has lasted five years or more, is a discretionary ground for divorce in South Dakota. 

 

There are several “defenses,” or denials, that are sometimes used regarding fault divorces. In South Dakota, these include collusion, connivance, condonation, and lapse of time. Collusion is an agreement between the spouses that one of them will commit an act that constitutes fault. When one spouse gives consent to the commission of an act that will be considered grounds for divorce, this is referred to as connivance. The condonation defense is sometimes used when a party condones certain spousal behavior during the marriage and then attempts to use it as fault grounds for divorce later. Lapse of time is an unreasonable delay between service of the summons and complaint and the commencement of the divorce action.

 

The grounds for divorce vary widely across the United States. The American Bar Association provides a comparison chart for all 50 states at abanet.org. To review the South Dakota divorce statutes, go to SDCL Chapter 25-4.

 

*An example of a South Dakota Divorce Settlement Agreement can be seen on Free Legal Aid.