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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Does a "premarital agreement" have to be in writing in South Dakota?
Yes. In South Dakota, a "premarital agreement" must be in writing and signed by both parties.
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When does a "premarital agreement" become effective in South Dakota?
In South Dakota, a premarital agreement becomes effective upon marriage.
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Does a statute of limitations have any impact on enforcing a "premarital agreement" in South Dakota?
Under South Dakota law, any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
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What is a "premarital agreement" in South Dakota?
Under South Dakota law, a "premarital agreement" (also known as a "prenuptial agreement") is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage;
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What type of things can a "premarital agreement" contain in South Dakota?
In South Dakota, parties to a premarital agreement may contract with respect to:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
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Are a husband and wife jointly liable for "necessaries" of their marriage in South Dakota?
Yes. Under South Dakota law, every husband and wife shall be jointly and severally liable for the purchase price, if such price be stated or agreed upon at the time of purchase, and if not so stated or agreed upon, for the reasonable value of all the necessaries of life, consisting of food, clothing, and fuel purchased by either husband or wife for their family while they are living together as husband and wife.
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What are the two ways a husband and wife can own property in South Dakota?
In South Dakota, a husband and wife may hold real or personal property together as joint tenants or tenants in common.
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Are incestuous marriages void in South Dakota?
Yes. Under South Dakota law, marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, and between cousins of the half as well as of the whole blood, are null and void from the beginning, whether the relationship is legitimate or illegitimate.
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Who can solemnize a marriage in South Dakota?
In South Dakota, marriages may be solemnized by
- a justice of the Supreme Court,
- a judge of the circuit court,
- a magistrate,
- a mayor (either within or without the corporate limits of the municipality from which the mayor was elected), or
- any person authorized by a church to solemnize marriages.
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Does South Dakota allow a jury to determine a child's paternity?
No. Under South Dakota law, a person does not have the right to a jury trial in a paternity action.