The Swier Law Firm Family Law FAQs
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 a “retainer” and how is it determined?
A "retainer fee" or “retainer,” is an amount of money paid before an attorney begins work. The amount is an estimate of the number of hours we think it will take our team to complete your case. Of course, this is much like attempting to summarize a book by reading its first few pages or reviewing a movie based on the previews - we do not fully know what we are in for until we are in it. Ethically, once an attorney represents you, he cannot stop representing you if it would unduly prejudice your interests. It is easier for a client to end representation at any time than it is for an attorney to do the same.
To find out more about retainers, please read our article, Understanding Legal Fees: What Is A Retainer?
What is a Qualified Domestic Relations Order?
A Qualified Domestic Relations Order (QDRO) is an order which must be approved by the retirement plan administrator and which directs the plan administrator as to how and when you will receive your benefits.
In a South Dakota divorce, will I receive a share of my spouse’s retirement plan?
The court can award you a share of your spouse’s retirement plan by a document called a Qualified Domestic Relations Order (QDRO). This is an order which must be approved by the retirement plan administrator and which directs the plan administrator as to how and when you will receive your benefits.
What is the difference between a defined benefit plan and a defined contribution plan?
Think of a defined benefit plan as an annuity. Under this type of annuity there are payments that usually start at age 65 and are paid for the lifetime of the pension-holding spouse.
During my marriage I grew my retirement plan. In South Dakota, if I get divorced do I have to share it with my spouse?
Generally yes. A retirement plan, to the extent it is earned during the marriage, is marital property. There are two ways to consider the value of the plan. One party can be awarded an interest in the plan and the other can be awarded property with a value that offsets the value of the pension plan. Otherwise, the parties can divide the interest in a pension plan through a document that is called a Qualified Domestic Relations Order (QDRO).
What does it mean to be served with divorce papers in South Dakota?
Giving notice to the other spouse that a divorce case has been started is called "service" and is done by giving ("serving") copies of the Summons and Complaint. There are rules governing proper service: either the party must be served by law enforcement or a licensed process server, or the other party can sign an Acceptance of Service form to be filed with the court.
Why is it important to set goals and make plans in a South Dakota divorce?
If you don’t know what your divorce goals are and you don’t have a plan, you may not like what you end up with at the end of the divorce. You have to put in the time and effort to decide what you want and make a plan for how to get it. That doesn’t guarantee you will get it, but at least you will have a better chance.
In South Dakota, If my spouse stops paying child support, can I stop him or her from seeing the kids?
No. Child support and child custody are two separate issues. It is in the best interest of children to have a relationship with both parents (absent abuse or neglect). If your spouse is not paying child support, you will need to take him or her to court to resolve the matter.
Why will alimony agreements in South Dakota be different in 2019?
There are many changes imposed by the Tax Cuts and Jobs Act of 2017, signed by President Trump on December 22, 2017, affecting divorcing spouses. One of the most significant provisions deals with the income tax impact associated with making and receiving alimony payments.
The Act eliminates Sections 215 and 71 of the Internal Revenue Code, which allowed spousal support payments to be deductible by the payor and includable as income to the payee. As a consequence, the income tax treatment of alimony is completely overturned. The payor can no longer deduct the payment of alimony and the payee is no longer required to include the payment on each of his or her respective income tax returns. This change to the treatment of alimony, unlike many other tax provisions included in the Act, is permanent and does not sunset on January 1, 2026.
How do I choose an attorney who is a good fit for my South Dakota divorce case?
Going through a divorce is a major life event, therefore it's vital that you choose an attorney you're absolutely comfortable with throughout the process. It's always good to get recommendations from those you trust most in your support network, but make sure you interview each attorney before making a final hiring decision.
If you find yourself sitting across from the attorney and you aren't at ease enough to tell them everything they need to know about your case, move on to the next name on the list. Most attorneys charge a consultation fee for these initial appointments, but that fee is far less expensive than paying thousands of dollars to retain an attorney you don't feel completely comfortable working with during your case.