The Swier Law Firm Family Law FAQs

Yes. In South Dakota, inherited property of one spouse can be considered marital property in a divorce.

South Dakota's Child Support Calculator can be found by clicking here.

To receive a divorce in South Dakota, no length of residency or waiting period before beginning the action is required. However, you must be a resident in good faith and once the proceeding is started you must remain a resident of the state until the divorce is final.

Under South Dakota's Parental Relocation Law, if an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence must provide reasonable written notice by certified mail or admission of service to the other legal parent of the child. Reasonable notice is notice that is given at least forty-five days before relocation or a shorter period if reasonable under the specific facts giving rise to the relocation. Proof of the notice shall be filed with the court of record unless notice is waived by the court.

However, no notice needs to be provided if:

             (1)      The relocation results in the child moving closer to the noncustodial parent; or

             (2)      The relocation is within the boundaries of the child's current school district; or

             (3)      There is an existing valid protection order in favor of the child or the custodial parent against the noncustodial parent; or

             (4)      Within the preceding twelve months, the nonrelocating parent has been convicted of violation of a protection order, criminal assault, child abuse, or other domestic violence and either the child or the custodial parent was the victim of the crime or violation.

When a South Dakota court determines child custody, it focuses on what is in the best interests of the child.  In making this decision, one of the primary factors is looking at "parental fitness."  When evaluating "parental fitness" a South Dakota court may consider the following factors:

(1) mental and physical health;

(2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;

(3) ability to give the child love, affection, guidance, education and to impart the family's religion or creed;

(4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent;

(5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and

(6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

No. The Indian Child Welfare Act (ICWA) does not cover child custody cases which arise from a divorce or separation in South Dakota. ICWA only applies to termination of parental rights, foster care placement, and pre-adoptive or adoptive placements.   

In South Dakota, a child support obligation is established by using the combined monthly net incomes of both parents, divided proportionately between the parents based upon their respective net incomes.  The noncustodial parent's proportionate share then establishes the amount of the child support order.

In South Dakota, facing a potential child custody dispute is one of the most emotionally and financially draining events in anyone's life. Here are five common mistakes parents make in South Dakota child custody cases: 

Mistake # 1 - Going into the process with unreasonable expectations and demands. Having everything go exactly your way is unlikely, so be willing to negotiate where necessary and accept that you may not get everything you want.

Mistake # 2 - Letting your emotions impact your decisions.

Mistake # 3 - Losing sight of what's in your child's best interests. 

Mistake # 4 - Not establishing a game plan and being unprepared.

Mistake # 5 - Painting a picture that isn't true about yourself (or your spouse).

If a parent wants to modify a child custody decision, he or she must show (1) there has been a substantial and material change in circumstances since the initial custody decision; and (2) the child’s welfare and best interests warrant the modification. 

The monthly gross income of each parent includes amounts received from: (1) compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated; (2) self-employment income including gain, profit, or loss from a business, farm, or profession; (3) periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments, or insurance contracts; (4) interest, dividends, rentals, royalties, or other gain derived from investment of capital assets; (5) gain or loss from the sale, trade, or conversion of capital assets; (6) unemployment insurance benefits; (7) worker’s compensation benefits; and (8) benefits in lieu of compensation including military pay allowances.