Got Half? Marital Property

In any action for divorce, it is necessary to make a property settlement. Traditionally, it is believed that the couple will split their assets evenly. But is this always the case?

The law in several states has been trending towards the adoption of a “community property rule.” In 2018, there are nine such states. The reason for the trend is that it is very difficult for courts to decide what is and is not property that should be divid-ed in a divorce. Community property rules attempt to make this process easier by pre-supposing that all assets and debts acquired during the course of the marriage are split 50/50 with exceptions for student loans, personal injury, or misdeeds. However, most states including South Dakota, are “all property” or common law property states.

In South Dakota, the statute controlling the division of property is SDCL §25-4-44, which reads:

When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

This statute is very general in nature and has been defined over time in case law that has changed little since the 1950’s.

If South Dakota were a “community property” state, a judge would be presumed to consider a 50/50 split in property obtained during the course of the marriage. However, South Dakota is an “all property” state that the Court de-scribes as, “[a]ll property is subject to division in divorce action regardless of its origins or title.” Kolbach v. Kolbach, 877 N.W.2d 822, 2016 S.D. 30..

Property in a divorce action is divided into marital and non-marital property. How that property is divided is not always as equal shares to both parties.

The awarding of property or money in a divorce action is not a problem in fractions and should not be treated as such. The problem is what is a fair and just award considering all of the material factors.
Kressly v. Kressly, 87 NW 2d 601 – SD: Supreme Court 1958.

In making an equitable division of property, a trial court is not bound by any mathematical formula but is to make the award on the basis of the material factors in the case, having due regard for equity and the circumstances of the parties.
Fink v. Fink, 296 NW 2d 916.

In making an equitable distribution of property, the Court will consider several factors that have not changed over time.

Under the language of our statute and the caselaw, it is not important whether the court creates “marital” and “nonmarital” estate pots or whether it places all of the property of the parties, whether individually or jointly held, in one pot. What is important is that the court, before it sets aside certain properties as “nonmarital,” consider the seven principal factors we have repeatedly held must be considered in making an equitable property division. Voelker, 520 NW2d at 907. The factors are: (1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income producing ca-pacity of the parties’ assets. Id. at 9078 (citations omitted).
Billion v. Billion, 1996 S.D. 101, ¶ 20, 553 N.W.2d 226, 232.

One factor curiously missing from those cited in Billion is “fault.” In several states a person is barred from alleging fault as a reason for seeking a divorce and determining a settlement of property. South Dakota is not a “no-fault” divorce state and fault is not considered with regard to property settlement, except in certain circumstances. “Except in certain limited circumstances, fault is no longer to be considered in making a division of marital property. SDCL §25-4-45.1. The only time fault is considered is when the actions of one party either inhibit or diminish the value of the property of the other.

Assuming no fault can be assessed, property obtained during the course of marriage may be considered non-marital when,

[o]ne spouse has made no or de minimis contributions to the acquisition or maintenance of an item of property and has no need for support that a court set it aside as non-marital property.
Kolbach v. Kolbach, 877 N.W.2d 822, 2016 S.D. 30.

This means that despite the fact that one spouse has made little or no contribution to the payments on the house or done anything to upkeep the property, a Court may still consider his or her need for support in determining how to split the equity. However, if the spouse did make contributions or increased the value of the property the Court in Halbersma v. Halbersma, 2009 S.D. 98, 775 N.W.2d 210 ruled, “When the value of separately held property increases due to the joint efforts or contributions of the spouses, the circuit court should make an equitable division of that increase in divorce.” Examples of contributions include maintenance, upkeep or even caring for children while the spouse works on the property.

What is clear from case law is that the Court can and will consider all as-sets of parties in making an equitable distribution and that equitable doesn’t always mean equal. When seeking a divorce for a lengthy marriage or one with sizable or complex assets it is always advisable to seek the help of knowledgeable attorney well versed in divorce law.

If you need help navigating the complexities of a divorce call the attorneys at Wilka and Welter for a no cost consultation regarding your situation.

Cut And Paste Reasonable Suspicion

In order to justify stopping and detaining a person, an officer must possess a “reasonable suspicion” based on his training or experience to believe an individual is engaging in criminal activity.  Often called a “Terry stop,” the concept of reasonable suspicion was first made precedent by the United States Supreme Court in Terry v. Ohio.  In Terry, the Court ruled that an officer may stop an individual for a brief amount of time in order to determine whether that person was involved in a punishable crime.  The stop may include a “pat down,” or search for weapons that could place the officer in danger.  The reasonable suspicion standard has also been used to justify detaining persons involved in a traffic stop long enough for a drug dog to be called to do a canine sniff test for illegal drugs.  The reasonable suspicion standard requires “specific and articulable facts” and more than just an “inchoate and unparticularized hunch” of an officer.  Reasonable suspicion looks to the  “totality of circumstances” that a reasonable officer, in his experience and training, would justify detaining an individual.

Recently, in South Dakota and elsewhere, there has been an alarming trend in police reports that has not gone unnoticed by defense attorneys.  Whenever a person is detained for a criminal act, the officers involved will file a police report.  The report is a written statement of what that officer observed from the point of contact through the actual detention.  This report may be accompanied by a video or audio account of the interaction with the officer.  These accounts are made as a safeguard for your liberties and to hold the officer accountable for such, but don’t always tell the whole or correct story.  Part of the report will be the officer’s observations of what he determines to be reasonable suspicion for a detention.  It has been noticed, however, that several reports in South Dakota have contained language of a similar nature regarding reasonable suspicion.  In fact, many accounts are nearly word for word indicating that officers may be “cutting and pasting,” into their reports, wording or language used in other reports.  What is more curious are the observations made that are being used as indications of reasonable suspicion.  In a recent second circuit email circulation, several attorneys have seen reports of “nervousness,” “swearing to god,” or “pulsating carotid arteries” in the police reports.  These types of observations are particularly concerning due to the fact that nervousness typically is associated with any confrontation with authorities.  Also, observations regarding arterial pulsation are suspicious due to the fact that police do not have medical training to make such observations and that those observations are almost never evident in a video and certainly never in audio.  Thus, reasonable suspicion becomes suspect in and of itself.  Add to the mix that the same language appears in multiple reports, and it becomes worrisome that reasonable suspicion is being manufactured by police in order to circumvent the Terry protections against unreasonable searches.

Luckily, the courts have noticed the same trends and have made rulings that force authorities to find more conclusive observations in their quest for reasonable suspicion.  In the 8th Circuit, the Court in U.S. v. Jones, ruled that, “Because the government repeatedly relies on nervousness as a basis for reasonable suspicion, it must be treated with caution.”  And in U.S. v. Beck, the Court stated that, “any suspicion associated with Beck’s nervous demeanor during the traffic stop to be, at best, minimal.”

Despite the best efforts of the courts as watchdogs preventing overreaching by authorities, you need an attorney to review your specific case and make sure that your rights are protected.  You need the experience and expertise of the attorneys at Wilka, Welter and Ash who keep up on current events and know how to fight for you.