South Dakota

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Luck of the Draw score: 80 out of 100

South Dakota lets the judge divide all property of either spouse, including inherited property, and set alimony amount and length without a formula. Fault is barred from the property split but may be weighed for alimony, and a party may remove the assigned judge once by affidavit without giving reasons. On the book’s scale, 0 is a contract you can read and 100 is one that mostly says “ask the judge.” South Dakota ranks 30 of 51, counting from the state that leaves the least to the judge. How the index works, and every state’s score.

Part	Score	The rule, and where it comes from
Property	20 / 20	The court may make an equitable division of all property belonging to either or both spouses regardless of title, and inherited or gifted property is not automatically excluded. SDCL 25-4-44; Novak v. Novak, 2006 SD 101
Alimony	20 / 20	The court may order a suitable allowance for support for life or a shorter period as it deems just, guided by case-law factors, with no formula or cap. SDCL 25-4-41; Schabauer v. Schabauer, 2003 SD 77
Fault	10 / 20	Fault may not be considered in dividing property except as it relates to how property was acquired, but relative fault in the divorce is a recognized alimony factor. SDCL 25-4-45.1; Schabauer v. Schabauer, 2003 SD 77
Lawyers’ fees	20 / 20	The court has discretion to award attorney fees in divorce cases. SDCL 15-17-38
Second opinion	10 / 20	In any pending action a party may once file an affidavit for change of judge stating in good faith a belief that a fair trial cannot be had, without stating reasons, and the named judge must then step aside unless the presiding judge orders otherwise. SDCL 15-12-21, 15-12-21.1, 15-12-22, 15-12-25, 15-12-26, 15-12-32

Getting in

No waiting period. Both applicants sign in person before a county register of deeds and show identification and proof of age. The statute sets no waiting period. The license is void unless the marriage is solemnized within 90 days. The fee is $40, and a power of attorney cannot be used to obtain the license.
SDCL §§ 25-1-10, 25-1-10.1, 25-1-24

Who can marry you. A Supreme Court justice, circuit judge, magistrate, mayor, or anyone authorized by a church may officiate. Members of a sect whose creed dispenses with an officiant may marry themselves and report it to the register of deeds within 30 days. The officiant must identify two witnesses. The statute does not address online ordination.
SDCL §§ 25-1-30, 25-1-32, 25-1-36

Common-law marriage: Closed to new couples. South Dakota requires a license and solemnization. Consent and consummation before July 1, 1959 still make a valid marriage; later ones do not. A marriage contracted outside the state and valid where made is valid in South Dakota.
SDCL §§ 25-1-1, 25-1-29, 25-1-38

Chapter 5 of the book covers getting in, and whether you are in at all.

The property system

South Dakota is one of forty-one equitable distribution jurisdictions. Equitable distribution. Each of you owns what’s in your own name during the marriage. At a divorce a judge divides the marital property as the judge finds equitable, which is not a promise of half. Chapter 11 of the book covers what that means, and Chapter 22 covers what happens to it when you move.

What counts as marital. South Dakota is an all-property state: a judge may divide everything either spouse owns, whatever its title or origin. A judge sets an item aside as non-marital only when the other spouse contributed little or nothing to it and has no need for support. The general valuation date is the day the divorce is granted.
SDCL § 25-4-44; Halbersma v. Halbersma, 2009 SD 98, 775 N.W.2d 210; Novak v. Novak, 2006 SD 34, 713 N.W.2d 551; Geraets v. Geraets, 1996 SD 119, 554 N.W.2d 198

An inheritance that touches a joint account

A judge can reach it either way. A judge can divide inherited property in any event; it is not automatically excluded. The judge looks at its origin and treatment and at each spouse’s contributions. In a 2024 case, the state Supreme Court upheld treating premarital home-sale proceeds as shared after they were commingled in a joint account used for marital expenses.
Halbersma v. Halbersma, 2009 SD 98, 775 N.W.2d 210; Novak v. Novak, 2006 SD 34, 713 N.W.2d 551; Goeden v. Goeden, 2024 S.D. 51

Chapter 12 explains how mine becomes ours.

Your spouse’s medical bills (Article 5)

Both of you can be liable from the first dollar. Husband and wife are jointly and severally liable for the necessaries of life purchased by either for the family while they live together, and the Supreme Court held that necessaries include medical care.
SDCL 25-2-11; Accounts Management, Inc. v. Litchfield, 1998 SD 24, 576 N.W.2d 233

Chapter 8 of the book explains the three ways states handle this.

If one of you dies (Article 9)

The surviving spouse may elect a percentage of the augmented estate (net probate estate, non-probate transfers to others and to the spouse, and the survivor’s own property) that rises with the length of the marriage, from 3 percent after one year to 50 percent after 15 years, with a $50,000 supplemental amount.
SDCL 29A-2-202, 29A-2-203

Chapter 9 covers what a will can and can’t take away from a spouse.

Prenups and postnups (Article 12)

One look, under UPAA (1983), SDCL 25-2-16 to 25-2-25. A premarital agreement is unenforceable only if the challenger proves it was not signed voluntarily, or that it was unconscionable when signed and the challenger received no fair and reasonable disclosure, did not waive disclosure in writing, and had no adequate knowledge of the other’s finances; unconscionability is decided by the court. Spouses may contract with each other about property but cannot otherwise alter their legal relations by contract, except by written separation and support agreements.
SDCL 25-2-21; SDCL 25-2-13; SDCL 25-2-10

What an agreement needs. A premarital agreement must be in writing and signed by both parties and needs no consideration; the Act has no notarization, witness, waiting-period or independent-counsel requirement. South Dakota’s version leaves out the uniform act’s express permission to modify or eliminate spousal support and its public-assistance override. An amendment or revocation after marriage must be a signed writing.
SDCL 25-2-17, 25-2-18, 25-2-20, 25-2-21

Chapter 29 explains one look and two, and what makes agreements stick.

Children (Article 8)

Child support: income shares. The schedule combines both parents’ net incomes and splits the obligation in proportion, the income shares method. Support runs to 18, or to 19 for a full-time secondary school student. A court may not impose support past 19 where the parties have not agreed, so college support depends on agreement.
SDCL §§ 25-5-18.1, 25-7-6.2; Birchfield v. Birchfield, 417 N.W.2d 891 (S.D. 1988)

Moving away with a child. Unless an order already governs relocation, a parent changing their principal residence must send written notice at least 45 days ahead by certified mail or admission of service. The other parent has 30 days to request a hearing or is presumed to consent. The judge applies best-interest factors. Moves closer to the other parent or within the school district are exempt.
SDCL §§ 25-4A-17, 25-4A-18, 25-4A-19

Chapter 17 covers the children.

Getting out (Article 2)

How long you must live here before filing: no minimum. The person filing must be a South Dakota resident, or stationed there in the armed services, when the action starts. The statute sets no minimum period of residence and does not distinguish where the couple married or where the grounds arose. The filer need not stay a resident until the decree.
SDCL §§ 25-4-30, 25-4-30.1

One spouse alone has to prove fault, or the other has to agree. A court cannot hear a divorce until 60 days after the complaint is served. A divorce for irreconcilable differences needs both spouses’ consent, unless the other spouse never makes a general appearance. A spouse facing an objection must prove fault. Desertion, neglect and intemperance must last a year; adultery and extreme cruelty have no such period.
SDCL §§ 25-4-2, 25-4-17, 25-4-17.2, 25-4-34

For a spouse who moves here alone, on a fault ground that can be proved at once, the legal minimum is about 60 days from arrival to a final decree (no residence period + 60-day wait from service, on a fault ground such as extreme cruelty or adultery). Without proof of fault or the other spouse’s agreement, a spouse can’t get a divorce here. Courts often take longer than the minimum.

Chapter 22 covers what changes when you move.

Each entry on this page comes from the statute, rule or case it cites, read in September or November 2026, except where the entry says it has not been checked. A rule can change after that, and a rule on paper can play out differently in a particular courthouse. No lawyer reviews these pages.

If you practice family law in South Dakota and would like to correct or contribute to this page, write to me.

Meanwhile

• The default contract, with the options states choose among. Read it with a South Dakota lawyer, or paste it into a chatbot along with “I live in South Dakota” and treat what comes back as a list of questions, not answers.
• Three contracts you could sign instead.
• A worksheet for reading it together, and every state’s Luck of the Draw score.
• Corrections, including changes in the law since the book went to press.
• About the book.