South Dakota

Alimony Guide - Spousal Support Laws

What is Alimony?

Alimony, also known as spousal support, is a court-ordered provision of financial support a spouse for after a divorce. Alimony laws vary considerably from state to state, and courts often have significant flexibility on a case-by-case basis in determing whether to award alimony, how much alimony to award, and how long alimony payments will continue.

In the state of South Dakota, when divorce has been granted, the court may compel one party to make a suitable allowance to the other for life or a finite period, as they see fit. The court may take into consideration any factors they find relevant to the specific case.

Two main factors to be considered by the court are whether the spouse seeking support lacks the appropriate property to provide for their reasonable needs, based on the standard of living established during marriage, and whether they are able to support his or herself through employment.

The maintenance order will be in an amount and for a length of time that the court finds just dependent on all relevant factors, which include, but are not limited to:

• The financial resources of the individual seeking maintenance



• The current income, employment, and other earnings of each party



• The potential earning abilities of each party, including skills, training, experience, and job market



• Length of absence from the job market of the spouse seeking maintenance



• The age and physical and mental health of each party



• The length of the marriage



• The standard of living established during the marriage



• The tax consequences to each spouse



• The fault of either party

The size of both individual’s estates, including property gained from the distribution of marital property under the agreement of the divorce, will also be taken into consideration of the amount and requirement of spousal support. The financial need of both parties, including financial responsibility for anyone else that each party has, is another consideration. Custody of any children, and any child support required between parties of the divorce, are two other factors in the amount and consideration of alimony. If the spouse with custody of the children is unable to support themselves due to the children being of an age or condition that it hinders the individual’s ability to support the child, such as if they must remain home to care for the child, it would severely influence the case for alimony to be received by the custodian of said child or children.

Any other factor considered to be relevant will affect the decision of the court. In the end, if an agreement cannot be made between the two parties, alimony is awarded at the final judgment of the judge and court deciding the case.

In the state of South Dakota, a number of factors are taken into account when calculating the amount and duration of alimony or spousal support payments.

Is there a set list of statutory factors for calculating alimony?

South Dakota does not consider a statutory list of factors when determining alimony payments.

Is marital fault considered in South Dakota alimony?

South Dakota considers marital fault when determining alimony payments. This means that "at-fault" divorces, which may be caused by infidelity / adultery, abuse, etc, can result in the at-fault party paying more "punitive" alimony.

Is standard of living considered in South Dakota alimony?

Standard of living is considered when calculating alimony payments in the state of South Dakota. This means that a judge will consider the lifestyle enjoyed by the alimony-receiving spouse during the duration of the marriage when determining an appropriate alimony payment amount.

Is custodial status considered when determining alimony in the state of South Dakota?

The judge in the state of South Dakota does not consider custodial status when determining alimony payments. This means that alimony calculations are not affected by whether or not the receiving spouse has custody of the children.

How exactly is alimony calculated in the state of South Dakota?

Calculation of alimony is generally done on a case-by-case basis by the South Dakota family court judge who is responsible for the case. While some states have a fixed alimony calculation formula, in most cases the final amount and duration of alimony awarded (if alimony is awarded) is at the discretion of the judge.

How long must alimony be paid?

The duration of payments is determined by a judge in South Dakota family court. Alimony length is usually based on length of marriage - one commonly used standard for alimony duration is that 1 year of alimony is paid every three years of marriage (however, this is not always the case in every state or with every judge). Alimony may also be discontinued upon the remarriage or cohabitation of the receiving spouse. In some cases, judges may even award permanent alimony.

What happens if alimony isn't paid?

If alimony is unpaid, the owed debt is known as alimony arrears. Arrears can be collected via mediation, small claims court, or wage garnishment. Failure to comply with a court-issued spousal support order may also result in a contempt of court charge against the spouse who failed to pay owed alimony.

Can alimony be waived by a prenuptual agreement?

A prenup agreement is a contract between spouses regarding marriage-related financial matters signed prior to marriage. Limitation or waiving rights to alimony is a frequent clause in modern prenuptual agreements, but some states or localities prohibit such alimony waivers.

Can alimony be collected if you're not married?

The legal concept of alimony, otherwise known as spousal support, is dependant upon a legal marriage. However, in some areas - especially those with a concept of common-law marriage - "palimony", or support payments between non-married individuals, has been awarded by courts. However, this generally requires extenuating circumstances.

What is alimony mediation?

When a marriage ends through divorce and alimony is expected to be paid, spouses have the choice to determine an alimony agreement either through litigation (in South Dakota family court) or through mutual agreement. Often, a South Dakota alimony mediator can be brought in to help the ex-spouses come to a mutual agreement regarding alimony and other contested issues such as property division, and thus avoid having to go to court.

How are alimony payments taxed?

On a federal level, all qualifying South Dakota alimony payments are deductible by the payor, and counted as taxable income by the recipient. To qualify as alimony under IRS guidelines, the following must be true:

• The payments are in cash
• The parties live in seperate households
• The payments are strictly for alimony (as opposed to for child support, etc)

Taxation of alimony varies on a state and local level. You can learn more about South Dakota income taxes here .