Alimony in South Dakota may be awarded to either spouse during and after divorce or legal separation. However, the requesting spouse must show a need for financial assistance for the court to award alimony.
This article highlights the requirements for alimony in the state. Also, we discuss the modification or termination of alimony.
How To Calculate Alimony in South Dakota
There is no specific mathematical formula to calculate the amount of alimony to be paid or received in South Dakota. Rather, a judge will determine whether a spouse qualifies for alimony and then decide on the amount of alimony to award.
– Amount of Alimony
While judges in South Dakota use their discretion in deciding the amount of alimony to award, their decision is usually guided by the factors listed below:
- Duration of the marriage.
- Earning capacity of each spouse at the time of separation or divorce.
- Age and health of each spouse.
- The financial position of each spouse after dividing marital property.
- Standard of living established during the marriage.
- Contribution of each spouse towards marital assets.
- The person at fault for the termination of the marriage.
Also, South Dakota laws don’t place limits on the amount of alimony a person may receive. What’s important is to prove that you need spousal support and that the other person can pay.
– Duration of Alimony
Like the amount, the duration of spousal support depends on what the judge deems and is just based on the circumstances of each party. In some divorce or legal separation cases, a spouse might pay or receive alimony for a short duration, while payment might continue for longer periods in others.
Temporary alimony continues until the divorce is finalized. Spousal support that is meant for rehabilitation of the dependent spouse is usually short-term, which means the judge will most likely put an end date to the payment of maintenance.
Where permanent support is awarded, it is likely to continue until the recipient spouse remarries or upon the death of either spouse.
How To Pay Spousal Support South Dakota
Alimony can be paid in cash as a lump sum or periodic payment. In some cases, a judge can allow alimony to be paid through property division. In most cases, though, alimony payment orders will entail a monthly payment made by the supporting spouse.
Alimony can be paid directly via direct deposit, check, or any other acceptable form of transfer. For employed individuals, alimony payments can be made through an income withholding order (wage garnishment).
Garnishment means a portion of the supporting spouse’s monthly income will be withheld and sent directly to the supported spouse or paid through the Division of Child Support (DCS).
How To Avoid Paying Alimony in South Dakota
The most straightforward way to reduce the amount of alimony or avoid paying alimony is through modification or termination. Yet, you have to prove to the court that continuing to pay alimony to your spouse or ex-spouse is unreasonable and unfair.
– Modification of Alimony in South Dakota
South Dakota alimony laws allow either spouse to request the modification of alimony in case of a change in circumstances after the original alimony order. If the spouses agreed to alimony through a settlement agreement, they must have agreed in writing that alimony is “modified” for such change to occur.
Payment of alimony continues as ordered and only changes if one of the spouses proves that there has been a change in circumstance. Generally, a change of circumstance will be an event or thing that changes the payor’s ability to pay or the recipient’s need for alimony.
Any of the following constitutes a change in circumstance for the supporting spouse:
- Involuntary loss of employment.
- Reduction of income.
- Health condition that reduces the earning capacity.
- Any other event that renders the original alimony order unfair or unjust.
Cohabitation or remarriage of the supported spouse could also be a reason to request a modification of alimony. However, the supporting spouse must prove that such cohabitation or remarriage reduces the other spouse’s need for alimony.
The supporting spouse can request alimony modification and wait for a new alimony order before they stop paying maintenance. This should be the case even if that spouse has lost their job and can’t pay alimony.
After analyzing the evidence presented, the court might find it reasonable to modify alimony. While modification could mean an increase or decrease in the amount of alimony, the maintenance amount is rarely adjusted upwards.
– Termination of Alimony in South Dakota
Alimony in South Dakota automatically terminates upon the death of either spouse. However, the termination of maintenance isn’t automatic in the case of remarriage or cohabitation.
Courts in South Dakota have over the years rejected the termination of alimony on the grounds of cohabitation or remarriage. However, they have upheld that remarriage could be a valid reason for termination of alimony.
South Dakota alimony rules state that it is “illogical and unreasonable” for a spouse to receive maintenance from a present and former spouse at the same time. As such, the law shifts the burden to the recipient to prove that there exist extraordinary circumstances that necessitate the continuation of maintenance payments.
Spouses could also state the terms of alimony termination in their settlement agreement. Depending on the agreement, alimony could terminate upon remarriage or cohabitation or could continue even if the recipient remarries.
– What Types of Alimony Are Available in South Dakota?
Financially dependent spouses in South Dakota may receive temporary, permanent, rehabilitative, or restitutional alimony.
Temporary spousal support is available to dependent spouses who need financial assistance during the pendency of the final divorce decree.
Permanent support may be available to spouses who are unable to attain financial independence after divorce. Courts expect that dependent spouses will strive to become self-supporting, but some circumstances could make this goal unattainable.
Courts could award permanent alimony if a dependent spouse is unable to work due to mental or physical disability, advanced age, or a lengthy absence from the workforce. However, this type of alimony is increasingly becoming rare in divorce cases.
As the name suggests, rehabilitative alimony is meant to provide the dependent spouse with the financial support necessary to acquire education or job training to help them get employed and thus become financially independent.
This type of alimony is particularly common in cases where the dependent spouse left a job to support the other spouse’s career or focus on raising a family.
South Dakota courts may order restitutional alimony if one spouse contributed to the education or career advancement of the other spouse during the marriage. It is meant to reimburse a spouse for their contribution towards their spouse’s achievements.
If one spouse took a full-time job and used their financial resources to support the education of the other, they may be eligible for restitutional alimony in case of a divorce or legal separation.
– Does Infidelity Affect Divorce in South Dakota?
Adultery affects various issues during divorce, alimony being one of those. If the dependent spouse cheated during the marriage, it doesn’t necessarily mean that they miss out on alimony, but it could affect the amount and duration of alimony.
Similarly, a court doesn’t use alimony to punish the adulterous spouse. The court has to take in notice all factors and consider the evidence of the marital misconduct before awarding alimony.
If a spouse cheated during the marriage, the court will consider whether they used large amounts of marital funds to support or pay for their affair.
– Are Alimony Payments Tax-deductible?
Alimony payments are tax-deductible for orders or agreements finalized on or before December 31, 2018. This means that the payor can include these payments as a tax deduction, while the recipient must list the alimony received as an income.
The Tax Cuts and Jobs Act, which was ratified in 2019, eliminated tax deductions on alimony and the need to report alimony as an income for divorce orders or agreements finalized on or after January 1, 2019.
– What if My Spouse Refuses To Pay Alimony?
If the supporting spouse fails to pay alimony South Dakota, they risk being held in contempt of court. If alimony is in arrears, the court will collect it via wage garnishment, mediation, or through small claims court.
Spouses who fail to comply with an alimony order also risk penalties, including fines, tax seizures, or a jail term. Other than litigation, you can use an alimony mediator to resolve alimony arrears.
– Is Alimony Still Common in South Dakota?
Yes. Maintenance is still common in South Dakota today. However, there is a budding trend away from long-term support. Courts in South Dakota may still award lifetime support if the supported spouse can’t attain financial independence.
Another scenario that has become commonplace is that of men being awarded alimony in divorce cases. If the husband gave up his job to be the primary caregiver of the children, the court will likely award him alimony. This is also the case if the husband contributed significantly to the education or career advancement of the spouse.
– Must I Hire an Attorney for My Legal Separation or Divorce Case?
No. However, it is in your best interest to hire a lawyer or attorney if a legal separation or divorce is imminent. Just like you don’t have to hire a plumber for a leaking pipe, hiring a lawyer for your divorce case isn’t mandatory.
Hiring a professional who is conversant with South Dakota divorce laws is a good way to ensure that you get alimony if you are a financially dependent spouse. Hiring a lawyer or attorney is also advisable if your spouse doesn’t want to give you a divorce or disputes your grounds for divorce.
Also, it is better to hire a lawyer if you are a victim of domestic abuse and are afraid of asking for a divorce. If you are in a marriage where there is an imbalance of power (financially or otherwise), you better consider hiring a lawyer to handle your divorce matters.
South Dakota spousal support is not awarded automatically in the event of a divorce. Spouses seeking alimony must meet certain requirements for courts to award maintenance. In this article, we have discussed the requirements for eligibility and ways to stop paying alimony. Here’s a recap of the discussion:
- Courts in South Dakota use various factors to determine the eligibility of a spouse for alimony.
- Judges also consider several factors when determining the amount and duration of alimony to award.
- The supporting spouse can reduce the amount of alimony or avoid paying by seeking modification or termination of alimony.
- In South Dakota, adultery may affect the amount and duration of alimony, depending on who is at fault for infidelity.
The sole purpose of alimony in South Dakota is to support the financially dependent spouse as they work towards financial independence. Couples who decided to end their marriage through divorce or legal separation may agree on alimony terms or go to court for the judge’s decision. If alimony is awarded, the supporting spouse may seek modification or termination if there is a change in circumstances.
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