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 10 tips should every parent know about child custody in South Dakota?
If you are trying to obtain custody of your child in South Dakota, you should know that a court’s decision is guided by what is in the child’s “best interest.” In making this determination, a court carefully examines each parent’s behavior. Essentially, if you are seeking custody of your child, you must convince a court of your strengths as a parent and, in some cases, the other parent’s weaknesses.
Here are 10 tips that every parent should know about child custody in South Dakota:
Tip #1 - Always follow a court’s custody and visitation order.
Tip #2 - A court will review which parent does a better job of sharing the child with the other parent. Make sure that you have done everything to ensure the child goes on each of the other parent’s visitations.
Tip #3 - If the child doesn’t currently live with you, always make your scheduled visitations. Be prompt and dependable about picking up the child. If your child asks you to skip a visitation so he or she can participate in a special activity, you should consider modifying your schedule and asking that visitation be rescheduled at a different time. This shows flexibility and your willingness to put your child’s needs above your own.
Tip #4 - If you are the custodial parent, have the child and the other parent work out any changes in the schedule. Do not get caught in the middle. Be flexible to provide another time if possible.
Tip #5 - Keep a detailed diary or calendar of the specific days the child was with you and with the other parent. Note the times of pick up and return of the child. Outline activities that the child engaged in. Do not “pump” your child for information. If you are receiving or paying child support, keep each check number, the date of receipt/payment, and the amount of the check.
Tip #6 - If the child does not live with you, do your best to personally pick up and return your child each time. It is not a good idea to have your secretary, friend, or relative picking up or returning the child, except in emergencies.
Tip #7 - If you are recently separated from the other parent, it is better to not include your boyfriend or girlfriend in any visitation you have with the child. It is not desirable to have new boy- friends or girlfriends living with you or spending the night with you when the child is present. It can be upsetting to the child and can appear to the court that you put your needs above your child’s needs and that you lack good judgment concerning the child. Also, be certain to investigate the character of any adult friends you permit to be around the child.
Tip #8 - Always be certain that the child uses seat belts or car seats.
Tip #9 - Be alert to avoid activities that could leave you vulnerable to claims of sexual misconduct with your child. These include bathing with the child, letting him or her sleep in your bed, and being nude with the child.
Tip #10 - Make sure your home and other places you take the child are safe. If you have guns, ammunition, or weapons, make sure they are securely locked in a cabinet. Also, keep your home clean so you will not be confronted with photos of litter, beer cans, clutter, etc.
How can I get my ex-spouse to pay my attorney's fees in a South Dakota divorce?
In South Dakota, a court uses a two-step process in making the decision to award attorney's fees in a divorce case.
First, the court must determine what constitutes a reasonable attorney’s fee. This requires consideration of (1) the amount and value of the property involved; (2) the intricacy and importance of the litigation; (3) the labor and time involved; (4) the skill required to draw the pleadings and try the case; (5) the discovery utilized; (6) whether there were complicated legal problems; (7) the time required for the trial; and (8) whether briefs were required.
Second, the court must determine if the fee is necessary. In other words, what portion of that fee, if any, should be allowed as costs to be paid by the other spouse? This requires consideration of the parties’ relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.
What are the 3 secrets you need to know about South Dakota's parental relocation law?
1. What Is South Dakota's Parental Relocation Law?
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 to the other legal parent of the child.
2. What Is "Reasonable Notice"?
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.
3. When Does Notice Not Need To Be Provided?
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.
What are the most common mistakes in a South Dakota high net worth divorce?
Going through a divorce is not easy. This is especially true of high net worth divorces, where a large amount of money, property, businesses, assets and other items are at stake. A high net worth divorce can have a much higher potential for mistakes on both sides. Here are 3 mistakes often made in high net worth divorces.
Mistake #1 - Agreeing to Anything Just to Get the Divorce Done
“I have to get out!” Clients usually say this to us for one of two reasons. The first reason is “I can’t stand my spouse - I will give them anything to get away from them!” The second reason is often “I want to be with someone else, so I have to get divorced immediately." However, agreeing to terms such as alimony or division of assets and liabilities just to get away from your spouse can have devastating effects on you financially. Therefore, it is important that a thorough analysis be taken before finalizing your divorce.
Mistake #2 - Hiding Assets
Some spouses think they are clever and transfer their valuable assets to another person such as a business partner or child from a former marriage. However, transfers like these can (and most likely will) be set aside as fraudulent and you will have lost the most important thing you have in a courtroom – your credibility. From that point on you are in a losing position for everything else related to a reasonable divorce settlement.
Mistake #3 - Getting the "Toughest" Lawyer
Unfortunately some people think that a lawyer who is difficult and nasty is the “best lawyer." The truth is that this type of lawyer is making himself money at your expense. Lawyers are your advocates and are hired to represent you zealously to the best of their ability – not to start fights so they can enrich themselves at your expense. A good lawyer will fight hard for you, but will not provoke or extend a fight that isn’t in your best interests.
What Is The Minimum Age For Getting Married In South Dakota?
Any unmarried person who is eighteen (18) years old or older, and who is not otherwise disqualified, is capable of consenting to a marriage. However, if either person is between the age of sixteen and eighteen, he or she must provide the county register of deeds with a notarized statement of consent to marry from one parent or legal guardian.
In South Dakota, Can A Student Loan Be Considered Marital Property?
Yes. Although an educational degree is not property subject to division, student-loan debt may be included in, and allocated as, a part of the marital estate.
Can domestic abuse be considered in a South Dakota child custody case?
Yes. When making a custody determination, a South Dakota court “is required to consider a conviction of domestic abuse, a conviction of assault as defined, and a history of domestic abuse.”
In A South Dakota Divorce, Is A Spouse Required To Show A Need For Alimony?
Yes. The spouse requesting alimony must establish "a need for support and that their spouse has sufficient means and abilities to provide for part or all of the need."
Is South Dakota An "All Property" State?
Yes. South Dakota is an ‘all property state,’ meaning that ‘all property of either or both divorcing parties is subject to equitable division by the court, regardless of title or origin.’
Can Inherited Property Be Considered Marital Property In A South Dakota Divorce?
Yes. In South Dakota, inherited property of one spouse can be considered marital property in a divorce.