Should you find yourself in a marriage that is unlivable and you need to divorce, there are several factors that you should consider prior to filing. Divorce law is different in each state. In South Dakota, there exist specific statutes or laws that govern how divorce is handled. This blog series is a list of all of the factors that one must consider. The second is:
Division of Property and Spousal Support
Division of Property
An emerging trend in state law is “community property.” You may have heard this term in the news. Community property states have laws that presume any marital property, or property acquired during the course of the marriage is split 50/50. Community property states are also often “no fault” states (see previous web log on Fault vs. No Fault). These laws are enacted to ease the burden on courts in determining who gets what property and why.
South Dakota is not a community property state; it is an “all property” state. The South Dakota Codified Law simply grants the courts the power to make an “equitable or fair division of property considering the circumstances of the parties, regardless of title.” Because this law is so vague and general, the courts have had to define it through numerous decisions starting as far back as 1939, when the law was originally enacted. In fact, the term “all property state” was used most recently in cases decided by the Supreme Court in 2015 and 2016 and is defined similarly to the statutory language.
All property in a divorce is divided into two categories, marital and non-marital property. Marital property is typically defined as all property obtained during the course of a marriage. This typically means any increase in value to co-owned real estate, businesses, salaries from employment, retirement plans, etc. Oddly enough, it also indirectly means children! Non-marital property is typically defined as any property brought into the marriage or earned outside the marriage. For instance, any retirement earned prior to marriage, savings, homes, businesses, gifts and/or inheritances (although, in some cases, both gifts and inheritances received during marriage have been considered marital property based on circumstances).
Before a court will set aside property as non-marital it considers seven distinct factors: the duration of the marriage, the value of the property owned, the ages of the parties, the health of the parties, the competency of the parties to earn a living, the contribution of each party to the accumulation of the property and the income producing capacity of the parties’ assets. Quite obviously, this varies greatly from the idea of a 50/50 split. The court uses these factors to ensure a fair or “equitable” settlement.
Spousal Support (Alimony)
Spousal support, or alimony, is provided in cases where the equitable division of property is not enough to place one of the parties in a fair position for a period post-divorce. For instance, if one spouse works and the other stays at home to raise the children, simply dividing property will not be enough to ensure the homemaker’s continued income once the earning spouse has departed. Spousal support is often paid monthly for a period of time, years or even a lifetime depending on certain factors or qualifications, such as the supported spouse obtaining employment or remarrying. In South Dakota, the law states that: “The amount and length of alimony payments is therefore left to the discretion of the trial court.” With that general law, the courts have decided spousal support using similar factors as those for division of property including: the length of the marriage, the respective earning capacity of the parties, the respective financial condition after the property division, the respective age, health and physical condition, station in life or social standing of the parties and the relative fault of the parties in the termination of marriage. Yes, fault is considered in determining support, which is in contrast to determining division of property (unless the fault is the reason for the reduction in value of a piece of property).
The court, absent an agreement of the parties, must make all of the determinations regarding property and support. All of this takes time. For reasons such as this, and to provide a “cooling off” period, no divorce in South Dakota may be finalized in less than sixty days.
The statutory law regarding property division and support is very general; however, the case law is more specific and can be difficult to navigate. If you are considering a divorce and have questions regarding your property or support needs, call the lawyers of Wilka and Welter, LLP for a free consultation regarding your specific case.
If you have children, divorce becomes even more impactful. Be sure to check out “What You Need to Know About South Dakota Child Custody Law in a previous web log entry on this site.