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South Dakota Divorce Laws

Chapter 25-4


     25-4-1.   Marriage dissolved only by death or divorce--Status of parties after divorce. Marriage is dissolved only:

             (1)      By the death of one of the parties; or
             (2)      By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. The effect of such judgment is to restore the parties to the state of unmarried persons.

Source: SDC 1939, § 14.0701.

     25-4-2.   Grounds for divorce. Divorces may be granted for any of the following causes:

             (1)      Adultery;
             (2)      Extreme cruelty;
             (3)      Willful desertion;
             (4)      Willful neglect;
             (5)      Habitual intemperance;
             (6)      Conviction of felony;
             (7)      Irreconcilable differences.

Source: SDC 1939, § 14.0703 (1) to (6); SL 1985, ch 207, § 3.

     25-4-3.   Adultery defined. Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married.

     The effective date of this section is July 1, 1984.

Source: SDC 1939, § 14.0704; repealed SL 1976, ch 158, § 22-8; re-enacted SL 1984, ch 12, § 38; SL 1985, ch 15, § 36.

     25-4-4.   Extreme cruelty defined. Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

Source: SDC 1939, § 14.0708.

     25-4-5.   Willful desertion defined--Special conditions applicable. Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.

     The special conditions or circumstances set forth in §§ 25-4-8 to 25-4-14, inclusive, shall also apply in establishing desertion under the provisions of this title.

Source: SDC 1939, § 14.0709.

     25-4-8.   Refusal of intercourse as desertion--Refusal to live together. Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion.

Source: SDC 1939, § 14.0709 (1).

     25-4-9.   Desertion by departure during absence of spouse induced by fraud. When one party is induced by the stratagem or fraud of the other party to leave the family dwelling place or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud and not by the other.

Source: SDC 1939, § 14.0709 (2).

     25-4-10.   Desertion by cruelty or threats causing departure of spouse. Departure or absence of one party from the family dwelling place caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but it is desertion by the other party.

Source: SDC 1939, § 14.0709 (3).

     25-4-11.   Separation by consent not desertion. Separation by consent with or without the understanding that one of the parties will apply for a divorce is not desertion.

Source: SDC 1939, § 14.0709 (4).

     25-4-12.   Intent to desert formed during proper absence. Absence or separation proper in itself becomes a desertion whenever the intent to desert is fixed during such absence or separation.

Source: SDC 1939, § 14.0709 (5).

     25-4-13.   Desertion by refusal of reconciliation after separation. Consent to a separation is a revocable act and if one of the parties afterwards in good faith seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.

Source: SDC 1939, § 14.0709 (6).

     25-4-14.   Offer to return curing desertion--Refusal of offer as desertion. If one party deserts the other and, before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of the refusal.

Source: SDC 1939, § 14.0709 (7).

     25-4-15.   Willful neglect defined. Willful neglect is the neglect of a person to provide the common necessaries of life for his or her spouse, when having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.

Source: SDC 1939, § 14.0710; SL 1984, ch 12, § 45.

     25-4-16.   Habitual intemperance defined. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.

Source: SDC 1939, § 14.0711.

     25-4-17.   Continuous period of desertion, neglect, or intemperance required. Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce.

Source: SDC 1939, § 14.0712.

     25-4-17.1.   Irreconcilable differences defined. Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.

Source: SL 1985, ch 207, § 1.

     25-4-17.2.   Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties. If from the evidence at the hearing, the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation. If it appears that there is a reasonable possibility of reconciliation, the court shall continue the proceeding for a period not to exceed thirty days. During the period of the continuance, the court may enter any order for the support and maintenance of the parties, the custody, support, maintenance, and education of the minor children of the marriage, attorney fees, and for the preservation of the property of the parties. At any time after the termination of the thirty-day period, either party may move for the dissolution of the marriage or a legal separation, and the court may enter its judgment decreeing the dissolution or separation.

     The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties unless one party has not made a general appearance.

Source: SL 1985, ch 207, § 2; SL 1986, ch 213.

     25-4-17.3.   Use of affidavits to establish jurisdiction and grounds for divorce. In any action for divorce or separate maintenance in which the parties have consented to the use of irreconcilable differences, the court may grant the divorce based on the affidavits of the parties establishing the requisite jurisdiction and grounds for the divorce or separate maintenance action without requiring their personal appearance.

Source: SL 1987, ch 187, § 1.

     25-4-17.4.   Validation of divorce granted without personal appearance. Any divorce or separate maintenance which has been granted without the personal appearance of a party is hereby legalized and validated.

Source: SL 1987, ch 187, § 2.

     25-4-18.   Chronic mental illness as discretionary ground. In case of incurable, chronic mania or dementia of either spouse having existed for five years or more, while under confinement by order of a court of record or of the Board of Mental Illness as provided by law, the court may in its discretion grant a divorce.

Source: SDC 1939, § 14.0703 (7).

     25-4-19.   Grounds for denial of divorce. Divorces must be denied upon showing:

             (1)      Connivance;
             (2)      Collusion;
             (3)      Condonation; or
             (4)      Limitation and lapse of time.

Source: SDC 1939, § 14.0713; SL 1973, ch 161.

     25-4-20.   Connivance defined. Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of.

Source: SDC 1939, § 14.0714.

     25-4-21.   Collusion defined. Collusion is an agreement between husband and wife that one of them shall commit or appear to have committed or to be represented in court as having committed acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce.

Source: SDC 1939, § 14.0715.

     25-4-22.   Condonation defined--Required elements. Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.

     The following requirements are necessary to condonation:
             (1)      A knowledge on the part of the condoner of the facts constituting the cause of divorce;
             (2)      Reconciliation and remission of the offense by the injured party;
             (3)      Restoration of the offending party to all marital rights.

Source: SDC 1939, § 14.0716.

     25-4-23.   Condonation not implied by endurance of continuing conduct constituting ground for divorce. Where the cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty from excessive acts of ill-treatment, which may aggregately constitute the offense, cohabitation, or passive endurance, or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. In such cases, condonation can be made only after the cause of divorce has become complete, as to the acts complained of.

Source: SDC 1939, § 14.0716.

     25-4-24.   Fraudulent concealment of ground of divorce avoiding condonation. A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation.

Source: SDC 1939, § 14.0716.

     25-4-25.   Conjugal kindness as condition subsequent to condonation. Condonation implies a condition subsequent that the forgiving party must be treated with conjugal kindness.

Source: SDC 1939, § 14.0716.

     25-4-26.   Revocation of condonation and revival of ground for divorce. Condonation is revoked and the original cause of divorce revived:

             (1)      When the condonee commits acts constituting a like or other cause of divorce; or
             (2)      When the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith or not fulfilled.

Source: SDC 1939, § 14.0717.

     25-4-29.   Lapse of time as ground for denial of divorce--Presumption of acquiescence--Other limitations not applicable. A divorce must be denied when there is an unreasonable lapse of time before the commencement of the action. Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation, notwithstanding the commission of the offense set up as a ground of divorce. The presumption arising from lapse of time may be rebutted by showing reasonable grounds for the delay in commencing the action.

     There are no limitations of time for commencing actions for divorce, except such as contained in this section.

Source: SDC 1939, § 14.0719.

     25-4-30.   Residence requirements for divorce or separate maintenance. The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance.

Source: SDC 1939, § 14.0720; SL 1961, ch 53; SDCL § 25-4-32; SL 1974, ch 174, § 1; SL 2008, ch 121, § 1.

     25-4-30.1.   Venue of action--Change by defendant. An action for divorce or separate maintenance may be commenced in the county of residence of either party, subject to the right of the defendant to have the place of trial changed to the county where the defendant resides.

Source: SDC 1939, § 14.0720; SDCL, § 25-4-30; SL 1974, ch 174, § 2.

     25-4-33.   No presumption as to same domicile of parties--Separate domiciles after separation. In actions for divorce there is no presumption of law that the domicile of either party is the domicile of the other. After separation each party may have a separate domicile, depending for proof upon actual residence, and not upon legal presumption.

Source: SDC 1939, § 14.0721.

     25-4-33.1.   Automatic temporary restraining order upon service--Modification or revocation. Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and upon personal service of the summons and complaint on the defendant, a temporary restraining order shall be in effect against both parties until the final decree is entered, the complaint dismissed, or until further order of the court:

             (1)      Restraining both parties from transferring, encumbering, concealing, or in any way dissipating or disposing of any marital assets, without the written consent of the other party or an order of the court, except as may be necessary in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the temporary restraining order is in effect;
             (2)      Restraining both parties from molesting or disturbing the peace of the other party; and
             (3)      Restraining both parties from removing any minor child of the parties from the state without the written consent of the other party or an order of the court.
     The provisions of the temporary restraining order shall be printed upon the summons and shall become an order of the court upon fulfillment of the requirements of service. However, nothing in this paragraph precludes either party from applying to the court for any further relief or for the modification or revocation of any order.

Source: SL 1986, ch 212.

     25-4-34.   Waiting period before trial of divorce and separate maintenance actions--Temporary orders and preliminary proceedings during waiting period--Validity of proceedings commenced before 1964. An action for divorce or separate maintenance shall not be heard, tried, or determined by the court until at least sixty days have elapsed from the completed service of the plaintiff's summons and complaint therein. During said waiting period the court may issue all orders required to effectuate the purposes expressed in §§ 25-4-38 and 25-4-45 or to protect any of the parties to the action during the pendency thereof.

     This section shall not be construed to prohibit the taking of depositions, examination of parties before trial, the granting of orders respecting discovery, or proceedings to perpetuate testimony, prior to the hearing or trial of said action by the court.
     Nothing in this section shall operate to nullify any action or proceeding for divorce commenced prior to July 1, 1964, notwithstanding the fact that the final judgment or decree in such action or proceeding is entered therein after said date.

Source: SL 1959, ch 232, §§ 1 to 3; SDC Supp 1960, § 14.0729; SL 1964, ch 35, §§ 1, 2.

     25-4-34.1.   Validation of prior decrees granted on sixtieth day--Deadline for contesting validity. All divorce decrees granted on the sixtieth day after service of the summons and complaint, on or before December 12, 1979, are hereby legalized, cured, and validated as if they were granted on the sixty-first day following service of the summons and complaint.

     Any person claiming that a divorce is not valid must have commenced action to adjudicate his or her claim on or before July 1, 1981. In case of his or her failure to do so by July 1, 1981, his or her right of action shall have expired and shall be barred.

Source: SL 1980, ch 187.

     25-4-35.   Validity of proceedings on service by publication under prior law. All actions or proceedings had before July 1, 1959, for divorce pursuant to chapter 179 of the Session Laws of 1957, and all actions or proceedings commenced pursuant thereto prior to said date, and completed thereafter by entry of judgment or decree therein, are hereby legalized, cured, and validated, notwithstanding that service of the summons therein was by publication or in any other manner provided by statute.

Source: SL 1959, ch 232, § 4; SDC Supp 1960, § 65.0341.

     25-4-38.   Alimony pending action. While an action for divorce is pending, the court may in its discretion require one spouse to pay as alimony any money necessary to support the other spouse or the children of the parties, or to prosecute or defend the action.

Source: SDC 1939, § 14.0725; SL 1979, ch 165, § 1.

     25-4-39.   Separate maintenance granted on denial of divorce. Though judgment of divorce is denied, the court may in an action for divorce provide for maintenance of a spouse and the children of the parties, or any of them, by the other spouse.

Source: SDC 1939, § 14.0727; SL 1979, ch 165, § 2.

     25-4-40.   Action for separate maintenance without divorce--Alimony and support. An action for separate maintenance may be maintained without request for divorce, upon any grounds which would be grounds for divorce, and in such cases the court shall have power to award temporary alimony, suit money, and permanent support for a spouse and the children of the parties, or any of them, by the other spouse.

Source: SDC 1939, § 14.0727; SL 1979, ch 165, § 3.

     25-4-41.   Allowance for support when divorce granted. Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.

Source: SDC 1939, § 14.0726; SL 1977, ch 203, § 1.

     25-4-42.   Security for payments required of spouse--Receivership--Allowance withheld when recipient's estate sufficient. The court may require a spouse to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. But when a spouse has a separate estate sufficient to give that spouse proper support, the court in its discretion may withhold any allowance to that spouse out of the separate property of the other spouse.

Source: SDC 1939, § 14.0728; SL 1979, ch 165, § 4.

     25-4-43.   Support payments through clerk of courts--Payment to social services when assignment made to state--Back support--Accounting. When a divorce is granted or a decree for separate maintenance entered or thereafter, and when the court has provided for the maintenance of the children of the marriage, all payments so required by the order of the court may by order of the court be paid to the clerk of courts in the amount and at the time specified in said order, and the clerk shall forthwith disburse the money so received to the party entitled thereto. Upon receipt of written notice of assignment of support obligations to the State of South Dakota the clerk of courts shall pay the support to the Department of Social Services rather than to a family as long as such assignment remains in existence. When the department has no authorization to receive the current support, the department shall notify the clerk to stop sending current support payments to the state. However, back support due and owing prior to termination of public assistance shall be paid to the state. Thereupon adequate accounting records showing receipts and disbursements shall be maintained by the clerk of courts, and the clerk of courts shall maintain a fact sheet in the original case file showing chronologically the date of receipts, dates of disbursements, and names of recipients.

Source: SDC 1939, § 14.0726 as added by SL 1963, ch 64; SL 1977, ch 204.

     25-4-44.   Division of property between parties. 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.

Source: SDC 1939, § 14.0726; SL 1988, ch 203.

     25-4-45.   Child custody provisions--Modification--Preference of child. In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.

Source: SDC 1939, § 14.0724; SL 1994, ch 192.

     25-4-45.1.   Fault not considered in awarding property or child custody--Exceptions. Fault shall not be taken into account with regard to the awarding of property or the awarding of child custody, except as it may be relevant to the acquisition of property during the marriage or to the fitness of either parent in awarding the custody of children.

Source: SL 1976, ch 165.

     25-4-45.2.   Intervention by attorney general or state's attorney when support assigned to state. In all cases where child support has been assigned to the state, the attorney general or the state's attorney shall have the right to intervene pursuant to § 15-6-24(a) in ongoing divorce actions to obtain child support, or to petition the court to modify existing court orders for child support.

Source: SDCL, § 25-4-45 as added by SL 1977, ch 203, § 2.

     25-4-45.3.   Adoption of fee schedule for home studies or investigations ordered by court in custody proceedings. The secretary of social services may, pursuant to chapter 1-26, adopt a schedule of fees for home studies or investigations ordered by the court in custody proceedings. The fees may not exceed actual costs and shall be based on the ability of the parties involved to pay for the home studies or investigations. The fees so adopted shall apply only to custody issues relating to or resulting from divorce or separate maintenance proceedings and shall not impose any fee or charges against the Unified Judicial System.

Source: SL 1987, ch 188.

     25-4-45.4.   Counsel appointed for child in certain divorce or custody proceedings--Duty of counsel--Assistance--Costs. Notwithstanding the provisions of § 26-7A-31, if the court determines mediation as provided in § 25-4-56 is not feasible the court may appoint counsel for any child involved in any divorce or custody proceeding, in which the child is alleged to be neglected or abused, or if a parent, guardian, or custodian request counsel be appointed in such proceeding and if the court determines that it is in the best interest of the child to have counsel appointed for the child. The counsel shall be charged with representation of the child's best interests and may not be counsel for any other party involved. The court may designate other persons who may or may not be attorneys to assist in the performance of the counsel's duties. The court shall allocate the cost of the appointed counsel between the parents, guardian, or custodian of the child.

Source: SL 1990, ch 199; SDCL, § 26-10-17.1.

     25-4-45.5.   Consideration of domestic abuse and assault conviction in custody award. In awarding custody involving a minor, the court shall consider:

             (1)      A conviction of domestic abuse as defined in subdivision 25-10-1(1); or
             (2)      A conviction of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or
             (3)      A history of domestic abuse.
The conviction or history of domestic abuse creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interest of the minor. A history of domestic abuse may only be proven by greater convincing force of the evidence.

Source: SL 1997, ch 156, § 1; SL 2008, ch 122, § 1.

     25-4-45.7.   Protective orders and arrest reports considered in determining existence of history of domestic abuse. For purposes of this chapter, in determining whether a history of domestic abuse exists, the court's consideration may include the issuance of a protection order against a parent or any arrest report of a parent following the response of law enforcement to a report of domestic abuse as defined in subdivision 25-10-1(1).

Source: SL 2008, ch 122, § 2.

     25-4-46.   Alimony, support, property, and child custody provisions subject to review on appeal. The disposition of the homestead by the court, and all orders and decrees touching the alimony and maintenance of a spouse, and for the custody, education, and support of the children as above provided are subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.

Source: SDC 1939, § 14.0728; SL 1979, ch 165, § 5.

     25-4-47.   Restoration of former name to wife--Validation of prior decrees. Whenever a decree of divorce is granted, the trial court may, in its discretion or upon the application of either party by the terms of the decree, restore to the woman her maiden name or the name she legally bore prior to her marriage to the husband in the divorce suit. All decrees of divorce previously entered restoring to the divorced woman her former name under this section are declared legal and valid and effective from their date of entry.

Source: SDC 1939, § 14.0702; SL 1983, ch 205.

     25-4-48.   Legitimacy of children after divorce for adultery of wife. When a divorce is granted for the adultery of the wife, the legitimacy of children begotten of her before the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the court upon the evidence in the case. In every such case all children begotten before the commencement of the action are to be presumed legitimate until the contrary is shown.

Source: SDC 1939, § 14.0706.

     25-4-49.   Legitimacy of children after divorce for adultery of husband. When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage, begotten of the wife before the commencement of the action, is not affected.

Source: SDC 1939, § 14.0705.

     25-4-51.   Report of divorces to department of health. The clerk of court in every county shall report information of each dissolution of marriage or divorce filed in the office of the clerk of court, on forms prescribed and furnished by the Department of Health and approved by the state court administrator of the Unified Judicial System. The forms shall be mailed or delivered to the South Dakota Department of Health within forty days after the entry of the final order or decree of the circuit court.

Source: SL 1978, ch 188.

     25-4-52.   Visitation rights for grandparents--Enforcement by circuit court. The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:

             (1)      If the visitation will not significantly interfere with the parent- child relationship; or
             (2)      If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.
     The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to this section.
     As used in this section, the term grandparents includes great-grandparents.

Source: SL 1982, ch 191, § 1; SL 2001, ch 130, § 1; SL 2003, ch 144, § 1; SL 2004, ch 172, § 1.

     25-4-54.   Visitation rights of grandparents--Child placed for adoption. The provisions of §§ 25-4-52 to 25-4-54, inclusive, do not apply if the child has been placed for adoption with a person other than the child's stepparent or grandparent. Any grandparent visitation rights granted pursuant to §§ 25-4-52 to 25-4-54, inclusive, prior to placement for adoption of the child with persons other than the child's stepparent or grandparent shall terminate upon the placement of the child for adoption.

Source: SL 1982, ch 191, § 3.

     25-4-55.   Exclusion of child from custody proceedings. In proceedings under this chapter involving contested custody of a child, upon request of counsel for either party, the court may, for good cause and at its discretion, exclude the child from the proceedings.

Source: SL 1983, ch 203.

     25-4-56.   Custody and visitation disputes--Mediation order--Exceptions--Investigation--Allocation of costs. In any custody or visitation dispute between parents, the court shall order mediation to assist the parties in formulating or modifying a plan, or in implementing a plan, for custody or visitation and shall allocate the cost of the mediation between the parties. However, mediation shall not be ordered if:

             (1)      One of the parents has been convicted of domestic abuse as defined in subdivision 25-10-1(1); or
             (2)      One of the parents has been convicted of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or
             (3)      One of the parents has a history of domestic abuse; or
             (4)      Mediation is not readily available or the court determines that mediation is not appropriate based on the facts and circumstances of the case.
The court may also direct that an investigation be conducted to assist the court in making a custody or visitation determination and shall allocate the costs of such investigation between the parties. A history of domestic abuse may only be proven by greater convincing force of the evidence.

Source: SL 1989, ch 218; SDCL Supp, § 26-5A-31; SL 1994, ch 193; SL 2008, ch 123, § 1.

     25-4-58.   Adoption of court rules establishing minimum qualifications of mediator. The Supreme Court shall adopt rules establishing the minimum qualifications of a mediator. To be included on a list of qualified mediators approved by the court, a person must possess the minimum qualifications.

Source: SL 1996, ch 163, § 2.

     25-4-58.1.   Minimum Qualifications for Family Court Mediators. To be eligible as a court appointed mediator under § 25-4-56, a mediator must have the following minimum qualifications:

             (1)      A mediator must file an approved application on the prescribed form with the presiding judge for the circuit or circuits in which the mediator will conduct mediations. See prescribed form attached as Exhibit A.
             (2)      A mediator must have a minimum of forty (40) hours' training and consultation with an experienced mediator for at least three mediation sessions. In place of forty (40) hours' training and consultation, a person may, with court approval, qualify as a mediator if that person has had five year's experience in mediating custody and visitation issues with a minimum of twenty (20) mediations during that period. A mediator must have competence in the following areas:
             (a)      General knowledge of the South Dakota court system and its procedures in contested family matters;
             (b)      General knowledge of South Dakota family law, especially as applied to custody and visitation issues;
             (c)      Knowledge of child development and specifically the impact of divorce or separation on family members;
             (d)      Knowledge of resources available in the state to which the parties and the children can be referred for assistance;
             (e)      Knowledge of interviewing and mediation techniques applicable to the family setting.
             (3)      A mediator must be committed to and participate in continuing education courses.
____________________________ CIRCUIT COURT
Name: ___________________________________________________________
Address: _________________________________________________________
Day time Phone: ________________________________________________________
Instructions: Please complete the following questionnaire as specified under each section. If additional space is needed, attach a sheet for each area making sure to indicate the section of the questionnaire to which you are responding. This form must be filed with the Presiding Judge for each circuit in which you intend to participate in court appointed mediation.
1) Provide your professional background including degree(s), certificate(s), practice specialization(s), years of experience and special training:
2) Provide a full and complete disclosure of all professional employment experiences whether in the field of mediation or in any other field:
3) Provide complete information regarding any training, seminars, workshops, etc., you deem pertinent to mediation:
4) Provide the number of mediations in which you have been involved giving approximate dates of those mediations if available. Please indicate how many of the mediations were successful.
5) Describe methods of mediation you have used and time required to conduct a typical mediation:
6) Please describe how fees and costs are calculated for completion of a typical mediation:
7) Please describe the requirements for payment of fees:
    I am aware of and agree to abide by the principles and guidelines set out in the Interim Standards for Mediators as promulgated by the Supreme Court of South Dakota.
NOTE: This form must be updated as changes to the information occur or at least annually.
Presiding Circuit Judge

Source: Supreme Court Rule 96-7; Supreme Court Rule 97-41.

     25-4-58.2.   Conduct of Family Court Mediators. Mediators are expected to conduct themselves by the highest ethical standards. Mediators should conduct themselves and mediations according to the following general principles:

             (1)      A mediator should recognize that mediation is based on participation and self-determination by the parties. A mediator shall conduct the mediation process fairly, diligently, impartially and in a manner consistent with assisting the parties in reaching a voluntary, uncoerced agreement on the issues outstanding between them.
             (2)      A mediator shall fully disclose to all parties involved in the mediation any actual or potential conflicts of interest. A mediator shall not accept or shall withdraw from any mediation in which the mediator has reason to believe he or she cannot conduct the mediation in an impartial manner. After full disclosure of an actual or potential conflict of interest to the parties, the mediator shall withdraw from the mediation if requested by any party to do so.
             (3)      A mediator should maintain confidentiality at all times except as provided by law or court order. A mediator may otherwise disclose information regarding the mediation only with the expressed consent of the parties.
             (4)      A mediator shall fully disclose to the parties and explain the basis of compensation, fees, and other charges to the parties. This disclosure should occur at the first meeting of the mediator and the parties.

Source: Supreme Court Rule 96-7; Supreme Court Rule 97-42.

     25-4-59.   Privacy of mediation proceedings. The mediator shall conduct the mediation proceedings in private. The mediator may exclude counsel from participation in the mediation proceedings.

Source: SL 1996, ch 163, § 3.

     25-4-60.   Confidentiality of mediation communications and mediator's work product. Any communication, oral or written, in a mediation proceeding pursuant to § 25-4-56 is confidential and inadmissible as evidence in any proceeding. A mediator appointed pursuant to § 25-4-56 may not be a witness, and the notes and work product of the mediator are not subject to discovery or subpoena in the proceeding in which the contested child custody or visitation is at issue.

Source: SL 1996, ch 163, § 4.

     25-4-61.   Written mediated agreement--Signing--Court approval. The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the parties of their right to review the agreement with counsel before they sign the agreement. After the agreement is signed by the parties, the mediator shall present the agreement to the court. The agreement is not binding upon the parties until approved by order of the court.

Source: SL 1996, ch 163, § 5.

     25-4-62.   Recommendation by mediator to court upon parties' failure to agree. The mediator may report to the court at any time that the parties are unable to reach an agreement. The mediator may recommend to the court that the full hearing on the custody or visitation issue be held within thirty days. The mediator may not make a substantive recommendation to the court concerning the contested issue of custody or visitation.

Source: SL 1996, ch 163, § 6.

     25-4-63.   Custody and visitation disputes--Appointment of parenting coordinator. In any custody or visitation dispute between parents, the court may appoint a parenting coordinator to assist the parents in resolving contested issues. The Supreme Court may promulgate rules pursuant to § 16-3-1 to prescribe the authority, duties, appointment, and compensation of parenting coordinators.

Source: SL 2008, ch 124, § 1.

Make sure to consult a lawyer or your state legislature for any changes to the law.

South Dakota Divorce Laws

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