Get Answers to Your Highest Priority South Dakota Legal Questions

Swier Law Firm FAQ

 

Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • What are five common mistakes parents make in South Dakota child custody cases?

    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).

  • How does a South Dakota court make a child support modification decision?

    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. 

  • In South Dakota, how is “gross income” for child support determined?

    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.

  • What is a data breach under South Dakota's Data Breach Notification Law?

     

    South Dakota's Data Breach Notification Law defines a “breach of system security” as the unauthorized acquisition of unencrypted computerized data or encrypted computerized data and the encryption key by any person that materially compromises the security, confidentiality, or integrity of personal or protected information maintained by the information holder.

    The term does not include the good faith acquisition of personal or protected information by an employee or agent of the information holder for the purposes of the information holder if the personal or protected information is not used or subject to further unauthorized disclosure.

  • In South Dakota, are school board elections partisan or non-partisan?

    In South Dakota, school board members are elected on a non-partisan basis.

  • May a school district require the random drug testing of students who participate in extracurricular activities?

     

    Yes. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Supreme Court held that mandatory, suspicionless drug testing of public high school students participating in extracurricular activities is a constitutionally reasonable intrusion that furthers a public school’s legitimate interest in deterring drug use among children. 

    The Supreme Court further found that a public school does not need to demonstrate a pervasive drug problem among the population subject to testing to warrant the intrusion. In sum, the Supreme Court determined that the government’s compelling interest in preventing and eradicating drug use among children outweighs the limited privacy expectations held by public middle and high school students.  

  • What are South Dakota Powers of Attorney and Living Wills?

    Of course, your will does not take effect until your death. However, other estate planning documents (known as “advanced directives”) may be useful during your lifetime.

    A Durable Power of Attorney for Health Care is a document that you, as the “principal,” create by appointing another person, the health care “agent” or “attorney in fact,” to make health care decisions for you should you become incapable of making them yourself. This type of power of attorney is “durable” because it is effective even if you become incapacitated. It is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer.  In fact, you can name anyone to serve in this role.   

    A Living Will is a document that instructs your physician and other health care providers as to the circumstances under which you want life-sustaining treatment to be provided, withheld, or withdrawn.

    Similar to a Durable Power of Attorney for Health Care, a Durable Power of Attorney (Financial) is a document that you, as the “principal,” create by appointing another person, the financial “agent” or “attorney in fact,” to make financial decisions for you should you become incapable of making them yourself. Once again, it is important to note that your “agent” or “attorney in fact” does not need to be a licensed lawyer. You can name anyone to serve in this role.   

    You should resist the temptation to use “simple forms” that you may find in a book or on the Internet. South Dakota has particular requirements for advanced directive documents. You should work with your attorney to draft these documents so that they are valid in South Dakota.

  • What does the term "basis" mean in estate planning?

    The term "basis" is what a person has paid for an asset and sometimes money invested in an asset after purchase (Example: what you paid for your house plus what you paid to update the kitchen). This determines gain/loss for income tax purposes.

    There are generally two types of "basis":

    • Stepped-up Basis - Assets get a new basis when they are passed by inheritance (through will or trust). These assets will be re-valued as of the date of death of the owner. If the value of the asset has gone up in value since purchase the new owner will take that asset with a new basis equal to the updated value without paying tax on that increase. This has the potential to save a significant amount of capital gains upon sale in the future.

     

    • Stepped-down Basis - Same as the stepped-up basis except the asset has gone down in value since it was purchased. The new owner would then take that assets with a new reduced (stepped-down) basis. This depends on the value as of the date of death of the owner compared to the price the owner originally purchased the asset.

  • What are considered "assets" under the South Dakota probate code?

    The term "assets" includes essentially everything you own in any form whether or not they have value. This includes, but is not limited to: bank accounts, stocks, jewelry, cars, clothes, real estate and even includes digital assets (e-mail, blog, photos, etc.). 

  • South Dakota Estate Planning - What Is A Codicil?

    A "codicil" is simply a written change to a Will.