South Dakota Property Division Guide

South Dakota follows equitable distribution principles when dividing property in divorce, but with a significant twist: it's an "all-property" state. Under SDCL 25-4-44, courts can divide "property belonging to either or both" spouses—meaning even assets acquired before marriage or inherited during the marriage may be subject to division. Whether you're pursuing an uncontested or contested divorce in South Dakota, understanding this broad approach to property division is essential.

This guide explains South Dakota's unique all-property framework, the statutory factors courts consider, automatic restraining orders that protect assets, and strategies to protect your financial interests during divorce.

South Dakota's All-Property Approach

Unlike many equitable distribution states that distinguish between "marital" and "separate" property, South Dakota courts have authority to divide all property owned by either spouse at the time of divorce. This includes:

• Property acquired during marriage: Real estate, vehicles, savings, investments, and retirement accounts accumulated while married
• Premarital property: Assets owned before the marriage can potentially be divided
• Gifts and inheritances: Unlike many states, these aren't automatically protected as separate property
• Regardless of title: Courts can assign property to either spouse regardless of whose name is on the deed or account

This "all-property" approach gives South Dakota judges significant discretion. While courts often consider the source and timing of property acquisition, there's no automatic exemption for premarital or inherited assets.

Equitable Distribution: Fair, Not Equal

South Dakota is one of 40 equitable distribution states, meaning property is divided fairly rather than automatically 50/50. "Equitable" doesn't mean equal—it means what the court determines is just under the circumstances.

In practice, this means:

• A 60/40 or 70/30 split is possible based on circumstances
• Both monetary and non-monetary contributions are valued
• Future needs and earning capacity affect the division
• Each case is evaluated individually—no rigid formulas apply

The Statutory Factors Courts Consider

South Dakota case law has established seven principal factors courts weigh when dividing property:

Marriage Characteristics

• Duration of marriage: Longer marriages typically result in more equal division
• Value of property: The total marital estate and significant individual assets

Personal Circumstances

• Ages of the parties: Older spouses may have less time to rebuild assets
• Health of the parties: Medical conditions affecting future earning capacity
• Competency to earn a living: Education, skills, and employment prospects

Contribution Factors

• Contribution to accumulation: Each spouse's role in acquiring property—includes homemaking, child-rearing, and non-monetary contributions
• Income-producing capacity: The ability of assets to generate future income

Additional Considerations

Courts may also consider economic misconduct, such as hiding assets, dissipating marital funds, or making unauthorized transfers. The source of property (inheritance vs. earnings) can influence—but doesn't automatically determine—its disposition.

Automatic Temporary Restraining Order (ATRO)

South Dakota provides powerful protection for marital assets through an automatic restraining order that takes effect immediately upon personal service. Under SDCL 25-4-33.1, both parties are automatically prohibited from:

• Transferring or encumbering assets: No selling, hiding, or mortgaging property except for life's necessities or regular business
• Extraordinary expenditures: Must be noticed and accounted for if made
• Harassing the other spouse: Protection from harassment and disturbing the peace
• Removing children from South Dakota: Cannot relocate children without written consent or court order
• Changing insurance: Cannot modify or cancel insurance for parties or children (except to increase benefits)

The ATRO text must be printed on the Summons. Violating these restrictions can result in contempt charges and may negatively affect your property division.

The 60-Day Waiting Period

Under SDCL 25-4-34, no hearing, trial, or final judgment can occur until 60 days have elapsed from completed service. During this period:

• The ATRO protects marital assets
• Temporary orders for support, custody, and exclusive use are available
• Parties can negotiate settlement terms
• Discovery of assets can proceed

This waiting period applies to all South Dakota divorces, whether contested or uncontested.

Division of Specific Asset Types

The Family Home

Courts may handle the marital home in several ways:

• Award to one spouse: With an offsetting award to the other for equity
• Order sale: Divide proceeds according to the equitable distribution determination
• Deferred sale: Allow one spouse (often with children) to remain temporarily
• Buyout: One spouse purchases the other's interest

Retirement Accounts and Pensions

Retirement benefits are subject to division regardless of when contributions were made. This includes 401(k)s, IRAs, and pensions. Division typically requires a Qualified Domestic Relations Order (QDRO) to transfer retirement funds without tax penalties.

Business Interests

Business valuation can be complex in South Dakota divorces. Considerations include:

• Fair market value assessment
• Each spouse's contribution to business growth
• Whether the business was started before or during the marriage
• Goodwill (both enterprise and personal)
• Tax consequences of division

Premarital and Inherited Property

While not automatically protected in South Dakota, courts often consider:

• Source of assets: Gifts and inheritances may receive favorable treatment
• Commingling: Whether separate property was mixed with marital funds
• Appreciation: Whether growth was passive or due to marital efforts
• Contribution: Whether the other spouse contributed to preserving or growing the asset

How Debts Are Divided

South Dakota courts divide debts using the same equitable principles applied to assets:

• Purpose: Was the debt incurred for family benefit?
• Who incurred it: Which spouse took on the obligation?
• Ability to pay: Each spouse's financial capacity
• Secured debts: Often follow the underlying asset (mortgage with house, car loan with vehicle)

Omitted Assets After Divorce

South Dakota provides a specific statutory framework under SDCL 25-4-75 to 25-4-83 for assets discovered after the divorce is finalized. This includes:

• Inadvertently omitted assets: Court can divide newly discovered property
• Intentional concealment: Stricter remedies available for hidden assets
• Specific timeframes: Limits on when claims can be brought

The ATRO helps prevent asset dissipation, but these provisions provide additional protection if assets are discovered later.

Estimate Your South Dakota Divorce Costs

Property division complexity significantly affects overall divorce costs. South Dakota's filing fee is $97 as of July 2025. Use our calculator to estimate total expenses based on your situation:

Practical Tips for South Dakota Property Division

1. Document asset sources: Keep records showing gifts, inheritances, and premarital property
2. Respect the ATRO: Don't transfer assets, incur debt, or move children without consent or court permission
3. Complete financial disclosure: South Dakota requires a Financial Affidavit (UJS-023); incomplete disclosures damage credibility
4. Track contributions: Document both monetary and non-monetary contributions to asset accumulation
5. Consider tax consequences: Different asset types have different after-tax values
6. Get expert valuations: For businesses, real estate, and retirement benefits, professional appraisals strengthen your position
7. Understand the all-property rule: Don't assume any asset is automatically protected
8. Plan for the 60-day wait: Use this time to negotiate and prepare

Property Division in the Divorce Timeline

Property division occurs as part of the broader divorce process. The 60-day waiting period is mandatory, and uncontested cases typically finalize in 70-100 days. Contested cases involving property disputes may take 6-12 months or longer. For the complete South Dakota divorce timeline and filing checklist, see our detailed guides.

Key Takeaways for South Dakota Property Division

Understanding South Dakota's approach helps you protect your interests:

• All-property state: Courts can divide any property owned by either spouse
• Equitable distribution: Fair, not necessarily equal
• Seven statutory factors: Duration, value, ages, health, earning capacity, contribution, income-producing capacity
• ATRO protection: Automatic restraints take effect upon service
• 60-day waiting period: No final judgment before this time
• Source matters: While not automatic protection, courts consider asset origins
• Omitted asset provisions: Statutory remedies for hidden or undiscovered property

For official forms and procedures, visit the South Dakota Unified Judicial System Self-Help page. Given the all-property nature of South Dakota law and the court's broad discretion, consulting with a South Dakota family law attorney is strongly recommended for divorces involving significant assets.