How Marital Fault and Adultery Impact Alimony Awards in South Dakota
In South Dakota, courts actively consider marital fault, such as adultery or extreme cruelty, when deciding whether to award alimony. If a spouse's misconduct caused the breakdown of the marriage, a judge can use this to either increase the financial support they must pay or deny them alimony entirely.
Going through a divorce is emotionally exhausting, and discovering that a spouse has been unfaithful or cruel only deepens the pain. Unlike many states that have moved strictly to 'no-fault' rules, South Dakota is a state where marital misconduct still holds significant legal weight. If you live in Sioux Falls, Rapid City, or Aberdeen, understanding how the court views fault can directly impact your financial future and your spousal support (alimony) award.
The Role of Marital Misconduct in South Dakota Alimony
Under S.D. Codified Laws § 25-4-2, South Dakota allows you to file for divorce based on specific fault grounds, including adultery, extreme cruelty, willful desertion, and habitual intemperance. When it comes to financial support, S.D. Codified Laws § 25-4-41 grants the judge broad discretion to award alimony as they deem 'just.' The South Dakota Supreme Court established in Gassman v. Gassman, 296 N.W.2d 518 (SD Supreme Court 1980) that a judge may look at the fault of the parties when determining alimony. This means a cheating or abusive spouse might be ordered to pay more, or if they are the one asking for money, they might receive nothing.
Step 1: Proving Adultery with Evidence
If you allege adultery, you cannot simply rely on suspicion; you must provide concrete evidence to the court. Proving infidelity usually requires showing that your spouse had both the 'disposition' (desire) and the 'opportunity' to cheat. Gathering evidence involves collecting text messages, emails, hotel receipts, or credit card statements. Many spouses hire a private investigator to legally obtain photographs or video evidence. When filing your initial Form UJS-310, South Dakota, Unified Judicial System, Complaint for Divorce without Minor Children at the Minnehaha County Circuit Court, Sioux Falls or the Pennington County Circuit Court, Rapid City, your attorney will officially cite adultery as the grounds for the dissolution.
Step 2: How Cruelty or Abandonment Shifts the Financial Burden
Adultery is not the only behavior that affects alimony. Extreme cruelty (which includes physical abuse or severe emotional torment) and willful desertion (abandoning the marriage) are also powerful factors. If one spouse leaves the family without financial support, the court is highly likely to shift the financial burden back onto them during the final alimony ruling. A judge aims to ensure that the innocent spouse does not suffer financially due to the wrongful actions of their partner.
Step 3: Defending Against False Fault Accusations
Sometimes, a bitter spouse will falsely accuse their partner of cheating or abuse simply to gain a financial advantage in court. If you are facing false fault allegations, you must act quickly to defend your reputation. This involves obtaining witness testimonies, financial records, and digital evidence to prove where you were and what you were doing. Defending against false claims is critical to protecting yourself from unfair, punitive alimony payouts. You can find an experienced family lawyer in our US Lawyers Directory to help you build a strong defense.
How Much Does Alimony Cost in South Dakota?
There is no strict mathematical calculator for alimony in South Dakota. Instead, the judge evaluates the length of the marriage, the earning capacity of both parties, the property each person receives, and their respective fault. State filing fees for a divorce typically run around $95, but attorney fees for a highly contested fault-based divorce can range from $5,000 to $20,000 or more, depending on how aggressively the case is fought.
How Long Does the Process Take?
An uncontested divorce in South Dakota requires a mandatory 60-day waiting period. However, if you are fighting over fault and alimony, the process will take much longer. Gathering evidence, conducting depositions, and waiting for a trial date at your local Circuit Court generally takes between 6 and 18 months to fully resolve.
| Type of Fault | Legal Definition in SD | Impact on Alimony |
|---|---|---|
| Adultery | Voluntary sexual intercourse with a third party. | Can increase payer obligations or deny the cheating spouse support. |
| Extreme Cruelty | Infliction of grievous bodily injury or mental suffering. | Strongly favors the victim for higher support awards. |
| Willful Desertion | Voluntary separation with intent to desert for 1 year. | Prevents the deserting spouse from avoiding financial duties. |
Frequently Asked Questions (FAQ)
Does South Dakota require me to prove fault to get a divorce?
No. You can still file for a 'no-fault' divorce based on irreconcilable differences. However, citing fault is a strategic choice your lawyer might suggest to influence alimony or property division.
Will cheating completely strip my right to property?
No. While adultery can heavily impact spousal support (alimony), South Dakota courts generally divide marital property equitably based on financial contributions, not solely on marital fault.
Can text messages be used to prove an affair?
Yes. Text messages, emails, and social media direct messages are routinely subpoenaed and admitted as evidence in family court to prove a spouse had the disposition and opportunity to cheat.
Can alimony be awarded to punish a spouse?
Legally, alimony is designed to provide necessary financial support, not to act as a punitive fine. However, a judge may view the innocent spouse's financial needs as greater due to the fallout from the at-fault spouse's actions.
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