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South Dakota Legal Separation Agreement

South Dakota has no legal-separation status, but a court can grant a decree of separate maintenance on the same grounds as a divorce, so a couple lives apart with court-ordered support while staying married. Attorney review available.

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Introduction

South Dakota does not recognize a legal-separation status, but a court can enter a decree of separate maintenance that lets a married couple live apart with court-ordered support while the marriage stays intact (SDCL 25-4-40). By statute an action for separate maintenance may be maintained without a request for divorce, upon any grounds that would be grounds for divorce, so the grounds are the same fault and no-fault grounds that would support a South Dakota divorce (SDCL 25-4-40, 25-4-2). In such an action the court may award temporary alimony, suit money, and permanent support for a spouse and children. A decree of separate maintenance does not dissolve the marriage: the parties remain legally married, neither may remarry, and the court does not make a final division of property, so a couple who later wants to end the marriage must bring a separate divorce proceeding. To bring the action, the plaintiff must be a resident of South Dakota when the action is commenced and remain a resident until the decree is final, with no fixed length of residence required beforehand (SDCL 25-4-30). Couples use separate maintenance to secure support during a separation, to keep a spouse on health insurance, or for religious reasons, or before deciding whether to divorce. Because a separate maintenance decree does not divide property, the division of property and debts belongs in a South Dakota Marital Settlement Agreement; if you decide to end the marriage instead, the pleading that starts it is a South Dakota Divorce Petition. DocDraft builds your South Dakota separation agreement from your facts, with attorney review available before you sign.

Key Things to Know

  1. 1

    South Dakota does not recognize a legal-separation status, but a court can enter a decree of separate maintenance that lets a couple live apart with court-ordered support while staying legally married (SDCL 25-4-40). Neither spouse may remarry.

  2. 2

    An action for separate maintenance may be maintained without a request for divorce, upon any grounds that would be grounds for divorce, so the grounds are the same fault and no-fault grounds as a South Dakota divorce (SDCL 25-4-40, 25-4-2).

  3. 3

    In a South Dakota separate maintenance action the court may award temporary alimony, suit money, and permanent support for a spouse and children (SDCL 25-4-40).

  4. 4

    A South Dakota decree of separate maintenance does not dissolve the marriage, and the court does not make a final division of property; a couple who later wants to end the marriage must bring a separate divorce proceeding.

  5. 5

    To bring a South Dakota separate maintenance action the plaintiff must be a resident when the action is commenced and remain a resident until the decree is final, with no fixed length of residence required beforehand (SDCL 25-4-30).

  6. 6

    Couples use separate maintenance to secure support during a separation, to keep a spouse on health insurance, or for religious reasons, or to set terms while deciding whether to divorce.

  7. 7

    Because a South Dakota separate maintenance decree does not divide property, the division of property and debts belongs in a marital settlement agreement rather than the separation itself; see the South Dakota marital settlement agreement page.

Key decisions before you file

Before you file a Legal Separation Agreement in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.

Open the Legal Separation Agreement guide

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SEPARATION AGREEMENT (SOUTH DAKOTA)

South Dakota Circuit Court, [COUNTY] County (if a decree is sought) In re: [SPOUSE 1 FULL NAME] and [SPOUSE 2 FULL NAME]

This Separation Agreement is made between [SPOUSE 1 NAME] and [SPOUSE 2 NAME], who were married on [MARRIAGE DATE] and began living separate and apart on [DATE OF SEPARATION].

Status and availability. South Dakota does not recognize a legal-separation status, so no court issues a decree of legal separation. The parties understand they remain legally married and that neither may remarry unless and until the marriage is ended by a divorce. The available court vehicle is a decree of separate maintenance: an action for separate maintenance may be maintained without a request for divorce, upon any grounds that would be grounds for divorce (SDCL 25-4-40, 25-4-2). This written agreement sets the parties' terms and may be presented to the court.

Support. In a separate maintenance action the court may award temporary alimony, suit money, and permanent support for a spouse and children (SDCL 25-4-40). The parties agree that [spousal support of $[AMOUNT] per month shall be paid by ___ to ___ beginning [DATE] / neither party shall pay spousal support]. Child support is set under the South Dakota Child Support Guidelines and remains subject to court approval and modification.

Conversion to a later divorce. A decree of separate maintenance does not end the marriage (SDCL 25-4-40). If the parties later decide to end the marriage, they must bring a separate divorce proceeding, in which the court can make the final division of property, and the terms of this agreement may be presented to the court and carried into the divorce.

Residency. To bring the action, the plaintiff must be a resident of South Dakota when the action is commenced and remain a resident until the decree is final; no fixed length of residence is required beforehand (SDCL 25-4-30).

Property and debts. A South Dakota decree of separate maintenance does not make a final division of property (SDCL 25-4-40). Because the property division is generally handled in a divorce, the parties set it out in a South Dakota marital settlement agreement rather than in this action; see South Dakota Marital Settlement Agreement. The parties agree that: [SUMMARIZE OR ATTACH the division of marital property and debts, or state it is addressed in an attached marital settlement agreement].

Children and parenting. The parties have [NUMBER] minor child(ren): [NAME(S) AND DATE(S) OF BIRTH]. Custody, visitation, and child support are [DESCRIBED HERE / set out in an attached parenting plan]. Custody and child support remain subject to court approval and modification in the best interests of the children.

Signatures. Each party signs this agreement freely.

[SPOUSE 1 SIGNATURE] Date: ______ [SPOUSE 2 SIGNATURE] Date: ______

This South Dakota document follows the South Dakota Codified Laws. If you decide to end the marriage, see South Dakota Divorce Petition. For the generic template and other states, see the Legal Separation Agreement hub.

South Dakota Requirements for Legal Separation Agreement

No Legal-Separation Status

South Dakota does not recognize a legal-separation status, so no court issues a decree of legal separation. The couple remains legally married until a divorce ends the marriage (SDCL 25-4-40).

Decree of Separate Maintenance

A court can enter a decree of separate maintenance: an action for separate maintenance may be maintained without a request for divorce, upon any grounds that would be grounds for divorce (SDCL 25-4-40). It supports a spouse while the couple lives apart.

Grounds Same as Divorce

The grounds for separate maintenance are the same as for a divorce (SDCL 25-4-40), including the fault and no-fault grounds in SDCL 25-4-2, such as adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, a felony conviction, and irreconcilable differences.

Court May Order Support

In a South Dakota separate maintenance action the court may award temporary alimony, suit money, and permanent support for a spouse and children (SDCL 25-4-40). Child support is set under the South Dakota Child Support Guidelines and remains subject to modification.

Marriage Not Dissolved, No Final Property Division

A South Dakota decree of separate maintenance does not dissolve the marriage, and the court does not make a final division of property (SDCL 25-4-40). A couple who later wants to end the marriage must bring a separate divorce proceeding.

Residency of the Plaintiff

To bring the action, the plaintiff must be a resident of South Dakota when the action is commenced and remain a resident until the decree is final; no fixed length of residence is required beforehand (SDCL 25-4-30).

Property Division in a Marital Settlement Agreement

Because a separate maintenance decree does not divide property, the division of property and debts is set out in a South Dakota marital settlement agreement rather than in the separation action.

Reasons to Choose Separate Maintenance

Couples choose separate maintenance to secure support while keeping the marriage in place, which can preserve a spouse's health insurance, help reach the ten-year mark for certain military and Social Security benefits, or serve religious reasons. Confirm insurance effects with the plan, since many treat a separation like a divorce.

Frequently Asked Questions

It is a court order that provides support to a spouse without dissolving the marriage. An action for separate maintenance may be maintained without a request for divorce, on any grounds that would be grounds for divorce, and the court may award temporary alimony, suit money, and permanent support for a spouse and children (SDCL 25-4-40). The marriage stays in place and the court does not make a final property division.

The grounds are the same as for a divorce. An action for separate maintenance may be maintained upon any grounds that would be grounds for divorce (SDCL 25-4-40), which include the fault and no-fault grounds in SDCL 25-4-2, such as adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, a felony conviction, and irreconcilable differences.

A South Dakota divorce ends the marriage, so both people are single again and free to remarry, and the court divides the property. A decree of separate maintenance keeps the marriage in place: the couple lives apart with court-ordered support, but they stay married, neither may remarry, and the court does not make a final division of property (SDCL 25-4-40).

To bring the action, the plaintiff must be a resident of South Dakota when the action is commenced and must remain a resident until the decree is final (SDCL 25-4-30). South Dakota does not require a fixed length of residence before filing for separate maintenance, unlike the durational requirements some states impose for divorce.

A decree of separate maintenance does not make a final division of property (SDCL 25-4-40). The court can order support, but the marital property is generally divided only in a divorce. So the division of property and debts is set out in a South Dakota marital settlement agreement rather than in the separate maintenance action, and it can be finalized if the couple later divorces.

Couples choose separate maintenance to secure support during a separation while keeping the marriage in place. Staying married can keep one spouse on the other's health insurance, though many plans treat a separation like a divorce, so confirm with the insurer. Reaching ten years of marriage can matter for certain military and Social Security spousal benefits, and some couples separate for religious reasons.