A South Dakota lawmaker has proposed a bill that would remove irreconcilable differences as a legal reason for divorce in the state.

Introduced on January 29 by state Rep. Tony Randolph, a Republican from Rapid City, the bill is one of several controversial pieces of proposed legislation recently authored by Randolph, among them a measure that would make it illegal for same-sex couples to marry and prevent benefits from being given to existing same-sex couples who are already married.

The irreconcilable-differences bill has support from other South Dakota lawmakers, including Sen. Brock Greenfield of Clark and Rep. Kaleb Weis of Aberdeen. Eliminating irreconcilable differences, they argue, would reduce the number of fatherless households in the state, along with crime they say stems from such households.

But removing irreconcilable differences as a reason for divorce would make dissolving a marriage in South Dakota even more difficult than it already is. Under current law, South Dakota does not allow unilateral no-fault divorce. That means irreconcilable differences can only be used as a divorce ground if both parties agree to it. Forty-eight states may require waiting periods or other conditions, but they give one spouse the power to end the marriage.

If Randolph’s bill becomes law, couples in South Dakota would have no choice but to use fault-based divorce,  keeping couples in potentially dangerous situations. No-fault divorce gives spouses, particularly women, the chance to escape a bad situation. Under the proposed law, a woman abused by her husband would have to face him in court, and a controlling husband could force his wife to stay in the marriage unless she abandoned it or faced going to court to prove that he had done something wrong.

The court would need to see evidence of wrongdoing, in the form of one of the state’s fault grounds for divorce:

• Adultery
• Extreme cruelty
• Willful desertion
• Willful neglect
• Habitual intemperance
• Chronic mental illness
• Conviction of a felony

The bill also amends this last ground.  Currently, a felony conviction is a valid ground for divorce, but under Randolph’s proposal, it would be considered valid only if the spouse was incarcerated. That is a major change, considering that felony convictions are sometimes punished with monetary fines, out-of-court programs or other measures that don’t require incarceration. Our divorce attorneys are concerned about the potential consequences of this bill and are monitoring its progress as it moves through debates and committees.

If you have questions about the bill, or if you are in need of a divorce lawyer in South Dakota, please call Anker Law Group at 605-519-5967 or contact us online to schedule a free consultation at our Rapid City office.