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 is the first thing I should do if my child is injured in an accident in South Dakota?

    Seek treatment immediately.

    Our law firm often handles tragic child accidents.  The most important thing you can do for both your physical and financial health is to get the proper medical treatment for your child's injuries.  You need to go to your family physician or to the emergency room to make sure that your child gets the treatment necessary to recover from the injuries in the accident.


  • What factors does a South Dakota court look at when determining child custody?

    When determining custody, South Dakota court are 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.  A South Dakota court may, but is not required to, consider the following factors in determining the best interests and welfare of the child:

    • parental fitness,
    • stability,
    • primary caretaker,
    • child's preference,
    • harmful parental misconduct,
    • separating siblings, and
    • substantial change of circumstances.

  • In a South Dakota child custody case, what does "parental fitness" mean?

    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.

  • Under what circumstances will a South Dakota court grant a divorcing spouse alimony?

    When a divorce is granted, the court may require one party to make a suitable allowance to the other party for support during the life of that other party or for a shorter period.  "General alimony" is intended to assist the recipient in providing for food, clothing, housing, and other necessities.  South Dakota courts consider these factors when determining whether alimony is appropriate:

    (1) the length of the marriage;

    (2) each party's earning capacity;

    (3) their financial conditions after the property division;

    (4) each party's age, health, and physical condition;

    (5) their station in life or social standing; and

    (6) the relative fault in the termination of the marriage.

  • In South Dakota, if my insurance company denies my claim, do I have any rights?

    Yes. In South Dakota, if your insurance company refuses to honor its contract and pay a valid claim, you have the right to bring a legal action for damages against the insurance company.  In addition to bringing a legal action for "breach of contract," you might be able to bring a "tort claim" asking for damages based upon the insurance company's "bad faith" handling of the claim.

  • How do you start a wrongful death lawsuit in South Dakota?

    How do you start a wrongful death lawsuit?

    In South Dakota, a wrongful death case can only be brought by the Personal Representative of the deceased person's estate.  Therefore, the first step is for a South Dakota court to appoint the Personal  Representative.  A surviving family member or close relative of the deceased usually acts as the estate's Personal Representative. 

  • How does a "step-up" in basis work?

    Our law firm recently received this question from one of our clients:

    “After my husband passed away in November 2012, I sold the cattle and most of the farm equipment.  I'm now wondering how all will fall out as relates to depreciation.  Of course, the sale price was less than when purchased new. Example: Used 1999 Dump Truck on IRS depreciation @ $7,000 in 2004; had to sell for $1,000 for salvage/parts as repair costs exceeded any greater sales value.”

    This is actually a fairly common question.  When a person passes away, any assets owned by them will get stepped up to fair market value as of the date of death (or stepped down if the asset is worth less than its adjusted tax basis).  If the asset is owned jointly with their spouse, then in most cases, the half owned by the person passing away will get the step up and the other half will continue to be depreciated by the surviving spouse.

    For those assets stepped-up in basis you will begin to depreciate them using the class lives called for by the tax rules (sorry, no bonus depreciation or Section 179).

    The nice thing about these rules is that you do not have to go back and try to find out what they originally paid for an asset (if not on the depreciation schedule).  The only documentation required is how you arrived at the fair market value of the asset.

    In the example of our reader, even though they paid $7,000 for the Dump Truck and most likely fully depreciated it, they would most likely use $1,000 as their FMV value.  If this is not a community property state, then $500 would be their cost basis since the surviving spouse had fully written down her cost to zero.  In a community property state the basis would be a $1,000 and no gain or loss would be recognized.

    Remember that this step-up applies to harvested grain that has not been sold.  If you have sold the grain on a deferred payment contract and have not received the cash yet, this does not get a step-up since it is considered “income”  and income items do not get a step up.


  • Who should form a limited liability company in South Dakota?

    You should consider forming a limited liability company ("LLC") if you are concerned about personal exposure to lawsuits or debts arising from your business.  For example, if you decide to open a business that deals directly with the public, you may worry that your commercial liability insurance won't fully protect your personal assets from potential slip-and-fall lawsuits or claims by your suppliers for unpaid bills.  Running your business as an LLC may help you sleep better, because it gives you personal protection against these and other potential claims against your business.

  • Does my South Dakota limited liability company need an operating agreement?

    Although South Dakota's LLC laws don't require a written operating agreement, you should have one.  Here's why an operating agreement is necessary:

    • It helps to make sure that courts will recognize your personal liability protection by showing that you have been careful about organizing your LLC as a legitimate business.
    • It sets out rules that govern how profits will be split up, how major business decisions will be made, and the procedures for handling the departure and addition of members.
    • It helps to alleviate misunderstandings among the owners over finances and management.
    • It allows you to create your own operating rules rather than being governed by South Dakota's LLC "default" rules, which might not be to your benefit.

  • What is a member-managed limited liability company in South Dakota?

    When you form a South Dakota limited liability company (“LLC”), you will need to decide how your LLC will be managed. The most common form of LLC management is the member-managed LLC where all the members (or owners) participate in running the business. 

    In South Dakota, A Member-Managed LLC Is The Most Common Choice

    Most people who set up an LLC in South Dakota choose member-management, meaning that all the members share responsibility for the day-to-day running of the business. This approach is more common in part because most LLCs are small businesses with limited resources and they don’t require a separate management level to operate.  Unlike corporations, LLCs have a streamlined organizational structure, without officers or boards of directors.  As such, the LLC form is often chosen by people who want to be directly involved in managing and operating their business.

    If you and the other members of your LLC want to run your own business - actually make and sell products, take orders, provide services - then you will probably want a member-management structure for your LLC.  For example, if your LLC is a bakery and all your LLC members want to play an active role in the business -- crafting recipes, baking goods, hiring employees, opening and closing the shop -- then you will want to operate the LLC as member-managers.