Legal Separation in South Dakota: Essential Information and Procedures

What Does Legal Separation Mean in South Dakota?

Legal separation in South Dakota is often misunderstood. It does not simply mean that you are no longer living with your spouse; instead, it is a formal court decree that legally separates a couple. This status provides a framework for many of the same issues as divorce, but legally-separated couples are still married to each other.
Legal separation can be requested by either party, with or without the consent of the other.However, it is relatively uncommon. Although, it can be an excellent option if one spouse wishes to retain certain benefits of marriage, such as tax benefits or health insurance, while living apart from his or her spouse. Legal separation may also provide an alternative for couples who think they may want to get back together in the future .
The process for legal separation is similar to that of a divorce. Either spouse must file a Petition for Legal Separation in Circuit Court, and the couple must divide property and debts just as if they were going through a divorce. Unlike divorce, however, neither spouse will be legally divorced after the separation order is entered. A couple can remain legally separated indefinitely. There is no law that requires a certain period of separation in order to grant a divorce.
In South Dakota, there is a 60-day waiting period from the date that the Petition for Legal Separation was filed to when the hearing can occur. For couples with children, the waiting period is 90 days.

Separation Within the Law in South Dakota

A legal separation process is mostly the same as a divorce process in South Dakota. Per S.D.C.L. 25-4-1, there is no provision in the laws regarding this type of action. The only way for parties in South Dakota to be legally separated is to file for divorce. In essence, a legal separation and a divorce are practically the same but are not considered the same thing in the legal realm.
How to File for Legal Separation in South Dakota As stated above, obtaining a legal separation is a four-step process. A written petition must be filed, serving the document on your spouse, waiting for your spouse to respond and ensuring that a legal separation is amended in the divorce decree if your spouse refuses to negotiate. Simply not signing the decree stating that you are no longer married will not necessarily uphold the separation indefinitely.
The Four-Step Legal Separation Process

• Submit a petition for legal separation. To submit a petition for legal separation, you must file a formal request with the court. This petition will require you to disclose the grounds for your separation. Your spouse may contest your petition once you file it. In South Dakota, you can only submit a petition for legal separation to the circuit courts with the domestic relations divisions.
• Serve your spouse. After submitting your petition for legal separation, your spouse will need to be served with a copy of the petition. Service can be done by certified mail, for example. When someone is served, they receive paperwork with the details of the legal action, such as why the action is being taken, who the action is against, how long the person has to respond and what happens if they do not respond.
• Wait for your spouse to respond. Once you have served your spouse, they have 30 days to respond to the petition. If they were served outside the state of South Dakota, they are given 60 days to respond. The response will indicate whether or not they agree with your petition.
• What if your spouse doesn’t respond? In most cases, couples going through a legal separation will negotiate their arrangement amongst themselves and submit the separation agreement to the court to be approved. This process can take several months, depending on whether there are any issues up for disagreement between the spouses.

Who Can Legally Separate in South Dakota?

To be eligible for legal separation in South Dakota, at least one spouse must have been a resident of the state for at least one year prior to the filing of the complaint. Spouses can file under South Dakota Codified Law Section 25-4-39 as long as this criteria is met. Additionally, it must be shown that you and your spouse have lived apart for the previous 60 days. Simply agreeing to live apart is not enough for legal separation. A formal separation agreement that has been signed by both parties is often advisable, although not required. To be clear about the eligibility criteria: One, you or your spouse must be a resident of South Dakota for one year prior to filing and two, you and your spouse must have lived apart for at least 60 days.
The reasons you seek legal separation are not so much important to the court, but they are important to you if you ever wish to return to the marriage. South Dakota does not require a spouse to have grounds for separation. This means that you no longer need to prove that your spouse is an adulterer, abuser or addict. Because of this, the courts view separation as a no-fault option; in other words, it is not your fault that you and your spouse have chosen to live apart, but living apart is in the best interests of all parties.

Marital Rights During Separation in South Dakota

During a period of separation, both parties have legal rights and responsibilities, as well as the flexibility to avoid the litigation process by entering into an agreement.
A. Child Custody
Under South Dakota law, both parents have temporary equal custody of the minor children until a court order is entered giving either parent sole custody of the minor child or dividing the legal custody of the minor children.
B. Child Support and Medical Insurance
In South Dakota, the parties are required to support their minor children. All children born and living in the State of South Dakota have the right to be supported by their parents until age 18 or until they graduate from high school whichever occurs second.
C. Property Division and Debts
Like child support, spousal support and maintenance of medical insurance for the benefit of the minor children, the economic issue of property division and debt payment are subject to agreement of the parties. If the economic issues cannot be resolved by agreement, the trial court shall divide the marital assets "without regard to marital misconduct."
D. Spousal Support and Maintenance of Medical Insurance
At any time after the commencement of a divorce action, either party may request an order for temporary support. An order for temporary support can be for maintenance and support of the parties or either of them, and for the maintenance of medical insurance coverage for the benefit of the children of the parties and for either party pending the entry of a final order in the cause, pursuant to SDCL 25-4-42.2.
E. Summary
As indicated above, both parties have legal rights and obligations concerning each other and their minor children during the period of separation. Many, if not most, of the issues listed above can be resolved by agreement. The best approach to any situation is making every effort to reach an agreement.

Pros and Cons of Legal Separation in South Dakota

A legal separation can offer some benefits and drawbacks that you do not encounter with divorce. Understanding these factors can help you determine whether legal separation suits your family needs.
Financial considerations:
-Neither spouse can remarry
-You may file joint taxes or claim tax benefits, such as a dependent exemption
-Generally no support payments to the other spouse for years ongoing
-You may have separate property that used to be marital property, depending on the terms of the separation decree
-You may have no right to alimony, unless agreed to by the parties
-Trial period of living apart to determine if they are ready to live apart, or try for reconciliation, without the expense and stress of a divorce
-Trial period to see whether they are amicable enough to divide property without litigation
Emotional considerations:
-You can try counseling or mediation for a trial period to see if going back together is an option.
-The spouses need not live under the same roof; they may split time in shared family home , or purchase another home
-Both parties can begin healing emotionally while maintaining the marriage license and perhaps re-examining the marriage at a later date
-You may have separate insurance plans that are less expensive than family plans
-The children get rhythm of life as they live with each parent independently and the parents do more of the parenting by being single.
-No stress of divorce paperwork or court dates
-You can return to your former name and try out living single
Legal considerations:
-Fault does not have to be considered; we assume it was broken and you are separating to decide if you want to attempt to fix it.
-Gives the opportunity to discuss the separation and address whether it should be permanent
-No actions of cruelty, cheating or abandonment must be documented to obtain a court decree of separation
-Legal separation is not required before the court will grant a divorce. You can simply file for dissolution of marriage
-A legal separation and a divorce decree are two decrees from the same court, meaning the court may treat them similarly and your rights under one decree may impact the other
-A divorce is subject to a 150-day waiting period, but only a 120-day wait if you have a separation agreement that complies with the South Dakota Codified Laws. If you have no separation agreement, you have to wait 120 days after separation to request support or alimony and 180 days to address distribution of property, assets/debts and custody/visitation of the children. See SDCL § 25-4-41.7

Moving from Legal Separation to Divorce in South Dakota

At any time after the two-year period from the filing of the action for legal separation has passed and the parties are living separately and apart, the court may hear a motion or petition to convert the legal separation into a divorce. The requirements and procedures are the same as in an action for divorce, including the requirements of South Dakota Codified Laws § 25-4-37 (non-residency) and § 25-4-37.1 (service).
The action for conversion is not a separate cause of action. It is entirely dependent on the prior action, and the court’s jurisdiction. The court would normally have no jurisdiction over the parties after the two-year period of limited jurisdiction has passed unless there has been a modification of that jurisdiction by a substantive order of the court.

Seeking Legal Representation for Separation in South Dakota

While separation is not a legally recognized status in South Dakota, it does require you to determine how to divide your income and assets and how to address child custody, support, and visitation. It can also involve tax and insurance issues that can require assistance of experienced, knowledgeable counsel. An attorney familiar with separation or divorce can help you understand the requirements and implications for South Dakota residents and draw up necessary separation agreements to protect your best interests.
Your state bar can be a good resource for finding qualified family law attorneys in South Dakota. Your bar association website will have a list of lawyers in your area. You can also check with the Association of Family and Conciliation Courts (AFCC), which is an interdisciplinary, international, interdisciplinary, non-profit association dedicated to the resolution of family conflict and the well-being of children and families. AFCC has members who are judges, lawyers, mediators, mental health professionals and educators, all dedicated to improving the lives of children and families. The AFCC’s North Central Region includes Minnesota , Nebraska, Iowa, Illinois, North Dakota and South Dakota. While most AFCC members may be located in larger cities, many smaller towns have reputable lawyers with family law experience.
The South Dakota Alliance for Family and Children, Inc. (SAFC, Inc.) is a statewide, interagency effort to promote a broad-based discussion about issues affecting families and children in South Dakota. It was formed in 1986 through the leadership of the Department of Social Services and the Department of Education and Cultural Services. The Alliance focuses on prevention, education and early intervention. The goals of SAFC, Inc. are to practice prevention, education and early intervention by providing information and identifying services to enhance the well-being of families in South Dakota. Its family services include area family services specialists who provide information on budgets and financial management, parenting skills and needs, legal system options, parenting time, custody and support. There is no fee for services. Volunteer and professional organizations can also assist you with information.