How Does the Court Decide Who Gets What in a Divorce?

There are many misunderstandings about how a court decides who gets what in a South Dakota divorce. Some people think that the court will always split property equally between the spouses, but this is not actually the case. Rather, in a divorce in South Dakota, the court will use a method called “equitable division.”

Under this system, the divorcing couple’s property will be distributed fairly, but not necessarily equally. Instead of simply splitting property 50-50, the court will look at the big picture and divide the property in a way that accounts for the circumstances of each spouse and their contributions during the marriage.

While some states call for distributing only marital property — that which is acquired during the marriage — in South Dakota the court can divide all property owned by either spouse. This means that regardless of who holds title to an asset or when it was acquired, the court can divide it. However, the origin of the asset is among the circumstances that will be considered in achieving a fair division.

To make an equitable division of property during a divorce, the court will consider the following factors:

  • The length of the marriage
  • The value of the assets
  • The age and health of each spouse
  • Each spouse’s ability to financially support themselves
  • Each spouse’s earning capacity
  • Each spouse’s contribution to the marital property or household

It’s important to note that a spouse’s contribution does not have to be monetary. A spouse’s devotion of time to maintaining the family home and raising children will also be considered. Fault in ending the marriage, such as adultery, is generally not a factor except to the extent that it led to dissipation of assets.

Spousal support is a payment from one spouse to the other to help maintain a lifestyle similar to the standard of living they had during the marriage. When deciding whether a spouse is entitled to spousal support payments, the court will evaluate some of the same factors considered in dividing the property, as well fault in the failure of the marriage, and each spouse’s ability to pay.

Divorce is never easy and property division is one of the most contentious issues that can arise. The family law attorneys of Anker Law Group have extensive experience in property division issues and can help you get your fair share. To schedule a free consultation at our Rapid City office, please call 605-519-5967 or contact us online today.

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    Rapid City, South Dakota 57701