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25-4 DIVORCE AND SEPARATE MAINTENANCE
CHAPTER 25-4

DIVORCE AND SEPARATE MAINTENANCE

25-4-1      Marriage dissolved only by death or divorce--Status of parties after divorce.
25-4-2      Grounds for divorce.
25-4-3      Adultery defined.
25-4-4      Extreme cruelty defined.
25-4-5      Willful desertion defined--Special conditions applicable.
25-4-6, 25-4-7.      Repealed.
25-4-8      Refusal of intercourse as desertion--Refusal to live together.
25-4-9      Desertion by departure during absence of spouse induced by fraud.
25-4-10      Desertion by cruelty or threats causing departure of spouse.
25-4-11      Separation by consent not desertion.
25-4-12      Intent to desert formed during proper absence.
25-4-13      Desertion by refusal of reconciliation after separation.
25-4-14      Offer to return curing desertion--Refusal of offer as desertion.
25-4-15      Willful neglect defined.
25-4-16      Habitual intemperance defined.
25-4-17      Continuous period of desertion, neglect, or intemperance required.
25-4-17.1      Irreconcilable differences defined.
25-4-17.2      Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties.
25-4-17.3      Use of affidavits to establish jurisdiction and grounds for divorce.
25-4-17.4      Validation of divorce granted without personal appearance.
25-4-18      Chronic mental illness as discretionary ground.
25-4-19      Grounds for denial of divorce.
25-4-20      Connivance defined.
25-4-21      Collusion defined.
25-4-22      Condonation defined--Required elements.
25-4-23      Condonation not implied by endurance of continuing conduct constituting ground for divorce.
25-4-24      Fraudulent concealment of ground of divorce avoiding condonation.
25-4-25      Conjugal kindness as condition subsequent to condonation.
25-4-26      Revocation of condonation and revival of ground for divorce.
25-4-27, 25-4-28.      Repealed.
25-4-29      Repealed.
25-4-30      Residence requirements for divorce or separate maintenance.
25-4-30.1      Venue of action--Change by defendant.
25-4-31, 25-4-32.      Repealed.
25-4-33      No presumption as to same domicile of parties--Separate domiciles after separation.
25-4-33.1      Automatic temporary restraining order upon service.
25-4-34      Waiting period before trial of divorce and separate maintenance actions--Temporary orders and preliminary proceedings during waiting period.
25-4-34.1      Validation of prior decrees granted on sixtieth day--Deadline for contesting validity.
25-4-35      Validity of proceedings on service by publication under prior law.
25-4-36, 25-4-37.      Repealed.
25-4-38      Alimony pending action.
25-4-39      Separate maintenance granted on denial of divorce.


25-4-40      Action for separate maintenance without divorce--Alimony and support.
25-4-41      Allowance for support when divorce granted.
25-4-42      Security for payments required of spouse--Receivership--Allowance withheld when recipient's estate sufficient.
25-4-43      Support payments through clerk of courts--Payment to social services when assignment made to state--Back support--Accounting.
25-4-44      Division of property between parties.
25-4-45      Child custody provisions--Modification--Preference of child.
25-4-45.1      Fault not considered in awarding property or child custody--Exceptions.
25-4-45.2      Intervention by attorney general or state's attorney when support assigned to state.
25-4-45.3      Adoption of fee schedule for home studies or investigations ordered by court in custody proceedings.
25-4-45.4      Counsel appointed for child in certain divorce or custody proceedings--Duty of counsel--Assistance--Costs.
25-4-45.5      Consideration of domestic abuse and assault conviction in custody award.
25-4-45.6      Consideration of conviction for death of other parent in custody award.
25-4-45.7      Protective orders and arrest reports considered in determining existence of history of domestic abuse.
25-4-45.8      Consideration of reporting abuse falsely or without good cause in custody award.
25-4-46      Alimony, support, property, and child custody provisions subject to review on appeal.
25-4-47      Restoration of former name to wife--Validation of prior decrees.
25-4-48, 25-4-49. Repealed.
25-4-50      Repealed.
25-4-51      Report of divorces to department of health.
25-4-52      Visitation rights for grandparents--Enforcement by circuit court.
25-4-53      Repealed.
25-4-54      Visitation rights of grandparents--Child placed for adoption.
25-4-55      Exclusion of child from custody proceedings.
25-4-56      Custody and visitation disputes--Mediation order--Exceptions--Investigation--Allocation of costs.
25-4-57      Court appointment of mediator.
25-4-58      Adoption of court rules establishing minimum qualifications of mediator.
25-4-58.1      Minimum Qualifications for Family Court Mediators.
25-4-58.2      Conduct of Family Court Mediators.
25-4-59      Privacy of mediation proceedings.
25-4-60      Confidentiality of mediation communications and mediator's work product.
25-4-61      Written mediated agreement--Signing--Court approval.
25-4-62      Recommendation by mediator to court upon parties' failure to agree.
25-4-63      Custody and visitation disputes--Appointment of parenting coordinator.
25-4-64      Parenting coordinator appointment at party request or on court's own motion.
25-4-65      Qualifications of parenting coordinator.
25-4-66      Appointment upon consent of parties.
25-4-67      Parenting coordinator application form.
25-4-68      Term of parenting coordinator--Resignation--Discharge.
25-4-69      Parenting coordinator fees and costs.
25-4-70      Duties of parenting coordinator.
25-4-71      Attorney and parenting coordinator fees related to motion.
25-4-72      Authority of court.
25-4-73      Standards of conduct for parenting coordinators.
25-4-74      Communications with parenting coordinator not confidential.
25-4-75      Motion to reopen case to divide assets omitted from property division.
25-4-76      Equitable division of inadvertently omitted assets.
25-4-77      Remedies for intentional concealment of omitted assets.
25-4-78      Attorneys fees for motion for omitted assets.
25-4-79      Jurisdiction over motions for omitted assets when court of this state entered original decree.
25-4-80      Jurisdiction over motions for omitted assets when court of another state entered original decree.
25-4-81      Time for filing motion for inadvertently omitted assets.
25-4-82      Time for filing motion for intentional concealment of assets.
25-4-83      Nonexclusive remedies.


25-4-1Marriage dissolved only by death or divorce--Status of parties after divorce.

Marriage is dissolved only:

(1)    By the death of one of the parties; or

(2)    By the judgment of a court of competent jurisdiction decreeing a divorce of the parties. The effect of such judgment is to restore the parties to the state of unmarried persons.

Source: SDC 1939, § 14.0701.


25-4-2Grounds for divorce.

Divorces may be granted for any of the following causes:

(1)    Adultery;

(2)    Extreme cruelty;

(3)    Willful desertion;

(4)    Willful neglect;

(5)    Habitual intemperance;

(6)    Conviction of felony;

(7)    Irreconcilable differences.

Source: SDC 1939, § 14.0703 (1) to (6); SL 1985, ch 207, § 3.


25-4-3Adultery defined.

Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married.

The effective date of this section is July 1, 1984.

Source: SDC 1939, § 14.0704; repealed SL 1976, ch 158, § 22-8; re-enacted SL 1984, ch 12, § 38; SL 1985, ch 15, § 36.


25-4-4Extreme cruelty defined.

Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

Source: SDC 1939, § 14.0708.


25-4-5Willful desertion defined--Special conditions applicable.

Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.

The special conditions or circumstances set forth in §§ 25-4-8 to 25-4-14, inclusive, shall also apply in establishing desertion under the provisions of this title.

Source: SDC 1939, § 14.0709.


25-4-6
     25-4-6, 25-4-7.   Repealed by SL 1974, ch 173


25-4-8Refusal of intercourse as desertion--Refusal to live together.

Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion.

Source: SDC 1939, § 14.0709 (1).


25-4-9Desertion by departure during absence of spouse induced by fraud.

When one party is induced by the stratagem or fraud of the other party to leave the family dwelling place or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud and not by the other.

Source: SDC 1939, § 14.0709 (2).


25-4-10Desertion by cruelty or threats causing departure of spouse.

Departure or absence of one party from the family dwelling place caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but it is desertion by the other party.

Source: SDC 1939, § 14.0709 (3).


25-4-11Separation by consent not desertion.

Separation by consent with or without the understanding that one of the parties will apply for a divorce is not desertion.

Source: SDC 1939, § 14.0709 (4).


25-4-12Intent to desert formed during proper absence.

Absence or separation proper in itself becomes a desertion whenever the intent to desert is fixed during such absence or separation.

Source: SDC 1939, § 14.0709 (5).


25-4-13Desertion by refusal of reconciliation after separation.

Consent to a separation is a revocable act and if one of the parties afterwards in good faith seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.

Source: SDC 1939, § 14.0709 (6).


25-4-14Offer to return curing desertion--Refusal of offer as desertion.

If one party deserts the other and, before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of the refusal.

Source: SDC 1939, § 14.0709 (7).


25-4-15Willful neglect defined.

Willful neglect is the neglect of a person to provide the common necessaries of life for his or her spouse, when having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.

Source: SDC 1939, § 14.0710; SL 1984, ch 12, § 45.


25-4-16Habitual intemperance defined.

Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.

Source: SDC 1939, § 14.0711.


25-4-17Continuous period of desertion, neglect, or intemperance required.

Willful desertion, willful neglect, or habitual intemperance must continue for one year before either is a ground for divorce.

Source: SDC 1939, § 14.0712.


25-4-17.1Irreconcilable differences defined.

Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.

Source: SL 1985, ch 207, § 1.


25-4-17.2Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties.

If from the evidence at the hearing, the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation. If it appears that there is a reasonable possibility of reconciliation, the court shall continue the proceeding for a period not to exceed thirty days. During the period of the continuance, the court may enter any order for the support and maintenance of the parties, the custody, support, maintenance, and education of the minor children of the marriage, attorney fees, and for the preservation of the property of the parties. At any time after the termination of the thirty-day period, either party may move for the dissolution of the marriage or a legal separation, and the court may enter its judgment decreeing the dissolution or separation.

The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties unless one party has not made a general appearance.

Source: SL 1985, ch 207, § 2; SL 1986, ch 213.


25-4-17.3Use of affidavits to establish jurisdiction and grounds for divorce.

In any action for divorce or separate maintenance in which the parties have consented to the use of irreconcilable differences, the court may grant the divorce based on the affidavits of the parties establishing the requisite jurisdiction and grounds for the divorce or separate maintenance action without requiring their personal appearance.

Source: SL 1987, ch 187, § 1.


25-4-17.4Validation of divorce granted without personal appearance.

Any divorce or separate maintenance which has been granted without the personal appearance of a party is hereby legalized and validated.

Source: SL 1987, ch 187, § 2.


25-4-18Chronic mental illness as discretionary ground.

In case of incurable, chronic mania or dementia of either spouse having existed for five years or more, while under confinement by order of a court of record or of the Board of Mental Illness as provided by law, the court may in its discretion grant a divorce.

Source: SDC 1939, § 14.0703 (7).


25-4-19Grounds for denial of divorce.

Divorces must be denied upon showing:

(1)    Connivance;

(2)    Collusion;

(3)    Condonation; or

(4)    Limitation and lapse of time.

Source: SDC 1939, § 14.0713; SL 1973, ch 161.


25-4-20Connivance defined.

Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting the cause of divorce. Corrupt consent is manifested by passive permission, with intent to connive at or actively procure the commission of the acts complained of.

Source: SDC 1939, § 14.0714.


25-4-21Collusion defined.

Collusion is an agreement between husband and wife that one of them shall commit or appear to have committed or to be represented in court as having committed acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce.

Source: SDC 1939, § 14.0715.


25-4-22Condonation defined--Required elements.

Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.

The following requirements are necessary to condonation:

(1)    A knowledge on the part of the condoner of the facts constituting the cause of divorce;

(2)    Reconciliation and remission of the offense by the injured party;

(3)    Restoration of the offending party to all marital rights.

Source: SDC 1939, § 14.0716.


25-4-23Condonation not implied by endurance of continuing conduct constituting ground for divorce.

Where the cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty from excessive acts of ill-treatment, which may aggregately constitute the offense, cohabitation, or passive endurance, or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. In such cases, condonation can be made only after the cause of divorce has become complete, as to the acts complained of.

Source: SDC 1939, § 14.0716.


25-4-24Fraudulent concealment of ground of divorce avoiding condonation.

A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the one condoned, and existing at the time of condonation, avoids such condonation.

Source: SDC 1939, § 14.0716.


25-4-25Conjugal kindness as condition subsequent to condonation.

Condonation implies a condition subsequent that the forgiving party must be treated with conjugal kindness.

Source: SDC 1939, § 14.0716.


25-4-26Revocation of condonation and revival of ground for divorce.

Condonation is revoked and the original cause of divorce revived:

(1)    When the condonee commits acts constituting a like or other cause of divorce; or

(2)    When the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions of condonation had not been accepted in good faith or not fulfilled.

Source: SDC 1939, § 14.0717.


25-4-27
     25-4-27, 25-4-28.   Repealed by SL 1973, ch 161


25-4-29
     25-4-29.   Repealed by SL 2014, ch 121, § 2.


25-4-30Residence requirements for divorce or separate maintenance.

The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance.

Source: SDC 1939, § 14.0720; SL 1961, ch 53; SDCL § 25-4-32; SL 1974, ch 174, § 1; SL 2008, ch 121, § 1.


25-4-30.1Venue of action--Change by defendant.

An action for divorce or separate maintenance may be commenced in the county of residence of either party, subject to the right of the defendant to have the place of trial changed to the county where the defendant resides.

Source: SDC 1939, § 14.0720; SDCL, § 25-4-30; SL 1974, ch 174, § 2.


25-4-31
     25-4-31, 25-4-32.   Repealed by SL 1974, ch 174, § 3


25-4-33No presumption as to same domicile of parties--Separate domiciles after separation.

In actions for divorce there is no presumption of law that the domicile of either party is the domicile of the other. After separation each party may have a separate domicile, depending for proof upon actual residence, and not upon legal presumption.

Source: SDC 1939, § 14.0721.


25-4-33.1Automatic temporary restraining order upon service.

Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and upon personal service of the summons and complaint on the defendant, a temporary restraining order shall be in effect against both parties until the final decree is entered, the complaint dismissed, or until further order of the court:

(1)    Restraining both parties from transferring, encumbering, concealing, or in any way dissipating or disposing of any marital assets, without the written consent of the other party or an order of the court, except as may be necessary in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the temporary restraining order is in effect;

(2)    Restraining both parties from molesting or disturbing the peace of the other party;

(3)    Restraining both parties from removing any minor child of the parties from the state without the written consent of the other party or an order of the court; and

(4)    Restraining both parties from making any changes to any insurance coverage for the parties or any child of the parties without the written consent of the other party or an order of the court unless the change under the applicable insurance coverage increases the benefits, adds additional property, persons, or perils to be covered, or is required by the insurer.

The provisions of the temporary restraining order shall be printed upon the summons and shall become an order of the court upon fulfillment of the requirements of service. However, nothing in this section precludes either party from applying to the court for any further relief or for the modification or revocation of any order.

Source: SL 1986, ch 212; SL 2011, ch 130, § 1.


25-4-34Waiting period before trial of divorce and separate maintenance actions--Temporary orders and preliminary proceedings during waiting period.

An action for divorce or separate maintenance shall not be heard, tried, or determined by the court until at least sixty days have elapsed from the completed service of the plaintiff's summons and complaint therein. During said waiting period the court may issue all orders required to effectuate the purposes expressed in §§ 25-4-38 and 25-4-45 or to protect any of the parties to the action during the pendency thereof.

This section shall not be construed to prohibit the taking of depositions, examination of parties before trial, the granting of orders respecting discovery, or proceedings to perpetuate testimony, prior to the hearing or trial of said action by the court.

Nothing in this section shall operate to nullify any action or proceeding for divorce commenced prior to July 1, 1964, notwithstanding the fact that the final judgment or decree in such action or proceeding is entered therein after said date.

Source: SL 1959, ch 232, §§ 1 to 3; SDC Supp 1960, § 14.0729; SL 1964, ch 35, §§ 1, 2.


25-4-34.1Validation of prior decrees granted on sixtieth day--Deadline for contesting validity.

All divorce decrees granted on the sixtieth day after service of the summons and complaint, on or before December 12, 1979, are hereby legalized, cured, and validated as if they were granted on the sixty-first day following service of the summons and complaint.

Any person claiming that a divorce is not valid must have commenced action to adjudicate his or her claim on or before July 1, 1981. In case of his or her failure to do so by July 1, 1981, his or her right of action shall have expired and shall be barred.

Source: SL 1980, ch 187.


25-4-35Validity of proceedings on service by publication under prior law.

All actions or proceedings had before July 1, 1959, for divorce pursuant to chapter 179 of the Session Laws of 1957, and all actions or proceedings commenced pursuant thereto prior to said date, and completed thereafter by entry of judgment or decree therein, are hereby legalized, cured, and validated, notwithstanding that service of the summons therein was by publication or in any other manner provided by statute.

Source: SL 1959, ch 232, § 4; SDC Supp 1960, § 65.0341.


25-4-36
     25-4-36, 25-4-37.   Repealed by SL 1974, ch 173; SL 1974, ch 174, § 2


25-4-38Alimony pending action.

While an action for divorce is pending, the court may in its discretion require one spouse to pay as alimony any money necessary to support the other spouse or the children of the parties, or to prosecute or defend the action.

Source: SDC 1939, § 14.0725; SL 1979, ch 165, § 1.


25-4-39Separate maintenance granted on denial of divorce.

Though judgment of divorce is denied, the court may in an action for divorce provide for maintenance of a spouse and the children of the parties, or any of them, by the other spouse.

Source: SDC 1939, § 14.0727; SL 1979, ch 165, § 2.


25-4-40Action for separate maintenance without divorce--Alimony and support.

An action for separate maintenance may be maintained without request for divorce, upon any grounds which would be grounds for divorce, and in such cases the court shall have power to award temporary alimony, suit money, and permanent support for a spouse and the children of the parties, or any of them, by the other spouse.

Source: SDC 1939, § 14.0727; SL 1979, ch 165, § 3.


25-4-41Allowance for support when divorce granted.

Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.

Source: SDC 1939, § 14.0726; SL 1977, ch 203, § 1.


25-4-42Security for payments required of spouse--Receivership--Allowance withheld when recipient's estate sufficient.

The court may require a spouse to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. But when a spouse has a separate estate sufficient to give that spouse proper support, the court in its discretion may withhold any allowance to that spouse out of the separate property of the other spouse.

Source: SDC 1939, § 14.0728; SL 1979, ch 165, § 4.


25-4-43Support payments through clerk of courts--Payment to social services when assignment made to state--Back support--Accounting.

When a divorce is granted or a decree for separate maintenance entered or thereafter, and when the court has provided for the maintenance of the children of the marriage, all payments so required by the order of the court may by order of the court be paid to the clerk of courts in the amount and at the time specified in said order, and the clerk shall forthwith disburse the money so received to the party entitled thereto. Upon receipt of written notice of assignment of support obligations to the State of South Dakota the clerk of courts shall pay the support to the Department of Social Services rather than to a family as long as such assignment remains in existence. When the department has no authorization to receive the current support, the department shall notify the clerk to stop sending current support payments to the state. However, back support due and owing prior to termination of public assistance shall be paid to the state. Thereupon adequate accounting records showing receipts and disbursements shall be maintained by the clerk of courts, and the clerk of courts shall maintain a fact sheet in the original case file showing chronologically the date of receipts, dates of disbursements, and names of recipients.

Source: SDC 1939, § 14.0726 as added by SL 1963, ch 64; SL 1977, ch 204.


25-4-44Division of property between parties.

When a divorce is granted, the courts may make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

Source: SDC 1939, § 14.0726; SL 1988, ch 203.


25-4-45Child custody provisions--Modification--Preference of child.

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.

Source: SDC 1939, § 14.0724; SL 1994, ch 192.


25-4-45.1Fault not considered in awarding property or child custody--Exceptions.

Fault shall not be taken into account with regard to the awarding of property or the awarding of child custody, except as it may be relevant to the acquisition of property during the marriage or to the fitness of either parent in awarding the custody of children.

Source: SL 1976, ch 165.


25-4-45.2Intervention by attorney general or state's attorney when support assigned to state.

In all cases where child support has been assigned to the state, the attorney general or the state's attorney shall have the right to intervene pursuant to § 15-6-24(a) in ongoing divorce actions to obtain child support, or to petition the court to modify existing court orders for child support.

Source: SDCL, § 25-4-45 as added by SL 1977, ch 203, § 2.


25-4-45.3Adoption of fee schedule for home studies or investigations ordered by court in custody proceedings.

The secretary of social services may, pursuant to chapter 1-26, adopt a schedule of fees for home studies or investigations ordered by the court in custody proceedings. The fees may not exceed actual costs and shall be based on the ability of the parties involved to pay for the home studies or investigations. The fees so adopted shall apply only to custody issues relating to or resulting from divorce or separate maintenance proceedings and shall not impose any fee or charges against the Unified Judicial System.

Source: SL 1987, ch 188.


25-4-45.4Counsel appointed for child in certain divorce or custody proceedings--Duty of counsel--Assistance--Costs.

Notwithstanding the provisions of § 26-7A-31, if the court determines mediation as provided in § 25-4-56 is not feasible the court may appoint counsel for any child involved in any divorce or custody proceeding, in which the child is alleged to be neglected or abused, or if a parent, guardian, or custodian request counsel be appointed in such proceeding and if the court determines that it is in the best interest of the child to have counsel appointed for the child. The counsel shall be charged with representation of the child's best interests and may not be counsel for any other party involved. The court may designate other persons who may or may not be attorneys to assist in the performance of the counsel's duties. The court shall allocate the cost of the appointed counsel between the parents, guardian, or custodian of the child.

Source: SL 1990, ch 199; SDCL, § 26-10-17.1.


25-4-45.5Consideration of domestic abuse and assault conviction in custody award.

In awarding custody involving a minor, the court shall consider:

(1)    A conviction of domestic abuse as defined in subdivision 25-10-1(1); or

(2)    A conviction of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or

(3)    A history of domestic abuse.

The conviction or history of domestic abuse creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interest of the minor. A history of domestic abuse may only be proven by greater convincing force of the evidence.

Source: SL 1997, ch 156, § 1; SL 2008, ch 122, § 1.


25-4-45.6Consideration of conviction for death of other parent in custody award.

In awarding custody or granting rights of visitation involving a minor, the court shall consider a conviction, excluding vehicular homicide, of a parent for the death of the other parent. A conviction for the death of the other parent creates a rebuttable presumption that awarding custody or granting visitation to the convicted parent is not in the best interests of the minor.

Source: SL 1997, ch 156, § 2.


25-4-45.7Protective orders and arrest reports considered in determining existence of history of domestic abuse.

For purposes of this chapter, in determining whether a history of domestic abuse exists, the court's consideration may include the issuance of a protection order against a parent or any arrest report of a parent following the response of law enforcement to a report of domestic abuse as defined in subdivision 25-10-1(1).

Source: SL 2008, ch 122, § 2.


25-4-45.8Consideration of reporting abuse falsely or without good cause in custody award.

In determining what is in the best interest of any particular child, the court shall consider whether the person whose conduct is under review has ever attempted to influence a child custody hearing by, falsely or without good cause, reporting pursuant to chapter 26-8A that some other person has committed sexual abuse, physical abuse, or abuse and neglect against the child or a sibling of the child. Nothing in this section effects the confidentiality of records and files relating to reports of child abuse or neglect maintained by the Department of Social Services pursuant to chapter 26-8A.

Source: SL 2010, ch 137, § 1.


25-4-46Alimony, support, property, and child custody provisions subject to review on appeal.

The disposition of the homestead by the court, and all orders and decrees touching the alimony and maintenance of a spouse, and for the custody, education, and support of the children as above provided are subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.

Source: SDC 1939, § 14.0728; SL 1979, ch 165, § 5.


25-4-47Restoration of former name to wife--Validation of prior decrees.

Whenever a decree of divorce is granted, the trial court may, in its discretion or upon the application of either party by the terms of the decree, restore to the woman her maiden name or the name she legally bore prior to her marriage to the husband in the divorce suit. All decrees of divorce previously entered restoring to the divorced woman her former name under this section are declared legal and valid and effective from their date of entry.

Source: SDC 1939, § 14.0702; SL 1983, ch 205.


25-4-48
     25-4-48, 25-4-49.   Repealed by SL 2014, ch 121, §§ 3, 4.


25-4-50
     25-4-50.   Repealed by SL 1973, ch 162


25-4-51Report of divorces to department of health.

The clerk of court in every county shall report information of each dissolution of marriage or divorce filed in the office of the clerk of court, on forms prescribed and furnished by the Department of Health and approved by the state court administrator of the Unified Judicial System. The forms shall be mailed or delivered to the South Dakota Department of Health within forty days after the entry of the final order or decree of the circuit court.

Source: SL 1978, ch 188.


25-4-52Visitation rights for grandparents--Enforcement by circuit court.

The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:

(1)    If the visitation will not significantly interfere with the parent- child relationship; or

(2)    If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.

The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to this section.

As used in this section, the term grandparents includes great-grandparents.

Source: SL 1982, ch 191, § 1; SL 2001, ch 130, § 1; SL 2003, ch 144, § 1; SL 2004, ch 172, § 1.


25-4-53
     25-4-53.   Repealed by SL 1990, ch 184


25-4-54Visitation rights of grandparents--Child placed for adoption.

The provisions of §§ 25-4-52 to 25-4-54, inclusive, do not apply if the child has been placed for adoption with a person other than the child's stepparent or grandparent. Any grandparent visitation rights granted pursuant to §§ 25-4-52 to 25-4-54, inclusive, prior to placement for adoption of the child with persons other than the child's stepparent or grandparent shall terminate upon the placement of the child for adoption.

Source: SL 1982, ch 191, § 3.


25-4-55Exclusion of child from custody proceedings.

In proceedings under this chapter involving contested custody of a child, upon request of counsel for either party, the court may, for good cause and at its discretion, exclude the child from the proceedings.

Source: SL 1983, ch 203.


25-4-56Custody and visitation disputes--Mediation order--Exceptions--Investigation--Allocation of costs.

In any custody or visitation dispute between parents, the court shall order mediation to assist the parties in formulating or modifying a plan, or in implementing a plan, for custody or visitation and shall allocate the cost of the mediation between the parties. However, mediation shall not be ordered if:

(1)    One of the parents has been convicted of domestic abuse as defined in subdivision 25-10-1(1); or

(2)    One of the parents has been convicted of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or

(3)    One of the parents has a history of domestic abuse; or

(4)    Mediation is not readily available or the court determines that mediation is not appropriate based on the facts and circumstances of the case.

The court may also direct that an investigation be conducted to assist the court in making a custody or visitation determination and shall allocate the costs of such investigation between the parties. A history of domestic abuse may only be proven by greater convincing force of the evidence.

Source: SL 1989, ch 218; SDCL Supp, § 26-5A-31; SL 1994, ch 193; SL 2008, ch 123, § 1.


25-4-57Court appointment of mediator.

For any mediation ordered pursuant to § 25-4-56 the court shall appoint a mediator from a list of qualified mediators approved by the court.

Source: SL 1996, ch 163, § 1.


25-4-58Adoption of court rules establishing minimum qualifications of mediator.

The Supreme Court shall adopt rules establishing the minimum qualifications of a mediator. To be included on a list of qualified mediators approved by the court, a person must possess the minimum qualifications.

Source: SL 1996, ch 163, § 2.


25-4-58.1Minimum qualifications for family court mediators.

To be eligible as a court appointed family court mediator under § 25-4-56, a mediator must have the following minimum qualifications:

(1)    A mediator must file an approved application on the prescribed form with the presiding judge for the circuit or circuits in which the mediator will conduct mediations. See prescribed form attached as Exhibit A.

(2)    A mediator must have both a minimum of forty (40) hours mediation training, plus experience in actual mediation sessions by consulting with a mediator approved under this rule for at least three mediation sessions. In place of forty (40) hours' training and consultation, a person may, with court approval, qualify as a mediator if that person has had five years' experience in mediating custody and visitation issues with a minimum of twenty (20) mediations during that period. A mediator must have competence in the following areas:

(a)    General knowledge of the South Dakota court system and its procedures in contested family matters;

(b)    General knowledge of South Dakota family law, especially as applied to custody and visitation issues;

(c)    Knowledge of child development and specifically the impact of divorce or separation on family members;

(d)    Knowledge of resources available in the state to which the parties and the children can be referred for assistance;

(e)    Knowledge of interviewing and mediation techniques applicable to the family setting.

(3)    A mediator must be committed to and participate in continuing education courses.

EXHIBIT A

MEDIATOR APPLICATION FORM

UNIFIED JUDICIAL SYSTEM OF SOUTH DAKOTA

____________________________ CIRCUIT COURT

Name: ___________________________________________________________

Address: _________________________________________________________

______________________________________________________________________

Day time Phone: ________________________________________________________

Instructions: Please complete the following questionnaire as specified under each section. If additional space is needed, attach a sheet for each area making sure to indicate the section of the questionnaire to which you are responding. This form must be filed with the Presiding Judge for each circuit in which you intend to participate in court appointed mediation.

1) Provide your professional background including degree(s), certificate(s), practice specialization(s), years of experience and special training:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

2) Provide a full and complete disclosure of all professional employment experiences whether in the field of mediation or in any other field:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

3) Provide complete information regarding any training, seminars, workshops, etc., you deem pertinent to mediation:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

4) Provide the number of mediations in which you have been involved giving approximate dates of those mediations if available. Please indicate how many of the mediations were successful.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

5) Describe methods of mediation you have used and time required to conduct a typical mediation:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

6) Please describe how fees and costs are calculated for completion of a typical mediation:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

7) Please describe the requirements for payment of fees:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

I am aware of and agree to abide by the principles and guidelines set out in the Interim Standards for Mediators as promulgated by the Supreme Court of South Dakota.

________________________________________________________

Signature

________________________________________________________

Date

NOTE: This form must be updated as changes to the information occur or at least annually.

Approved:

________________________________________________________

Presiding Circuit Judge

Source: Supreme Court Rule 96-7; Supreme Court Rule 97-41; SL 2012, ch 262 (Supreme Court Rule 12-08), eff. July 1, 2012.


25-4-58.2Conduct of Family Court Mediators.

Mediators are expected to conduct themselves by the highest ethical standards. Mediators should conduct themselves and mediations according to the following general principles:

(1)    A mediator should recognize that mediation is based on participation and self-determination by the parties. A mediator shall conduct the mediation process fairly, diligently, impartially and in a manner consistent with assisting the parties in reaching a voluntary, uncoerced agreement on the issues outstanding between them.

(2)    A mediator shall fully disclose to all parties involved in the mediation any actual or potential conflicts of interest. A mediator shall not accept or shall withdraw from any mediation in which the mediator has reason to believe he or she cannot conduct the mediation in an impartial manner. After full disclosure of an actual or potential conflict of interest to the parties, the mediator shall withdraw from the mediation if requested by any party to do so.

(3)    A mediator should maintain confidentiality at all times except as provided by law or court order. A mediator may otherwise disclose information regarding the mediation only with the expressed consent of the parties.

(4)    A mediator shall fully disclose to the parties and explain the basis of compensation, fees, and other charges to the parties. This disclosure should occur at the first meeting of the mediator and the parties.

Source: Supreme Court Rule 96-7; Supreme Court Rule 97-42.


25-4-59Privacy of mediation proceedings.

The mediator shall conduct the mediation proceedings in private. The mediator may exclude counsel from participation in the mediation proceedings.

Source: SL 1996, ch 163, § 3.


25-4-60Confidentiality of mediation communications and mediator's work product.

Any communication, oral or written, in a mediation proceeding pursuant to § 25-4-56 is confidential and inadmissible as evidence in any proceeding. A mediator appointed pursuant to § 25-4-56 may not be a witness, and the notes and work product of the mediator are not subject to discovery or subpoena in the proceeding in which the contested child custody or visitation is at issue.

Source: SL 1996, ch 163, § 4.


25-4-61Written mediated agreement--Signing--Court approval.

The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the parties of their right to review the agreement with counsel before they sign the agreement. After the agreement is signed by the parties, the mediator shall present the agreement to the court. The agreement is not binding upon the parties until approved by order of the court.

Source: SL 1996, ch 163, § 5.


25-4-62Recommendation by mediator to court upon parties' failure to agree.

The mediator may report to the court at any time that the parties are unable to reach an agreement. The mediator may recommend to the court that the full hearing on the custody or visitation issue be held within thirty days. The mediator may not make a substantive recommendation to the court concerning the contested issue of custody or visitation.

Source: SL 1996, ch 163, § 6.


25-4-63Custody and visitation disputes--Appointment of parenting coordinator.

In any custody or visitation dispute between parents, the court may appoint a parenting coordinator to assist the parents in resolving contested issues. The Supreme Court may promulgate rules pursuant to § 16-3-1 to prescribe the authority, duties, appointment, and compensation of parenting coordinators.

Source: SL 2008, ch 124, § 1.


25-4-64Parenting coordinator appointment at party request or on court's own motion.

At the request of either party, or on the court's own motion, a parenting coordinator may be appointed in any custody or visitation proceeding. The parties may agree to use a parenting coordinator, subject to approval by the court, or the court may designate a parenting coordinator for the parties.

Source: SL 2013, ch 268, § 1 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-65Qualifications of parenting coordinator.

A parenting coordinator must satisfy the following minimum qualifications:

(1)    A parenting coordinator must file an approved application on the prescribed form with the presiding judge for the circuit in which the parenting coordinator will provide parenting coordinator services;

(2)    A parenting coordinator shall have a minimum of four hours of domestic violence training;

(3)    A parenting coordinator must have a minimum of forty (40) hours parenting coordination training. In place of forty (40) hours training, a person may, with court approval, qualify as a parenting coordinator if that person has had five years' experience in parenting coordination with a minimum of twenty (20) cases during that period. A parenting coordinator must have competence in the following areas:

(a)    General knowledge of the South Dakota court system and its procedures in contested family matters;

(b)    General knowledge of South Dakota family law, especially as applied to custody and visitation issues;

(c)    Knowledge of child development and specifically the impact of divorce or separation on family members;

(d)    Knowledge of resources available in the state to which the parties and the children can be referred for assistance;

(e)    Knowledge of interviewing and problem-solving techniques applicable to the family setting.

(4)    A parenting coordinator must be committed to and participate in continuing education courses.

(5)    A parenting coordinator must either be an attorney who is licensed to practice law in South Dakota; a psychologist who is licensed to practice in South Dakota; a psychiatrist who is licensed to practice in South Dakota; a social worker, family therapist or substance abuse counselor licensed to practice in South Dakota; or any other South Dakota licensed or certified professional with education, experience and specialized expertise relevant to the duties of a parenting coordinator.

Source: SL 2013, ch 268, § 2 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-66Appointment upon consent of parties.

Persons not meeting the requirements of § 25-4-65 may be appointed as a parenting coordinator by the court upon consent of the parties.

Source: SL 2013, ch 268, § 3 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-67Parenting coordinator application form.

The prescribed form for a person seeking approval as a parenting coordinator is as follows:

    PARENTING COORDINATOR APPLICATION FORM

    UNIFIED JUDICIAL SYSTEM OF SOUTH DAKOTA

Instructions: To be considered for approval as a parenting coordinator an applicant must complete this application form fully and accurately. This information must be filed with the Presiding Judge for the circuit in which the parenting coordinator will provide parenting coordinator services. You will be notified if any additional information is required and if your application is approved.

Name:

________________________________________________________

Address:

________________________________________________________

Daytime Phone: __________________________________________

Fax Number: _____________________________________________

Email: __________________________________________________

(1) Provide your professional background including degree(s), certificate(s), practice specialization(s), years of experience, special training, and any licensures held and dates obtained:

(2) Provide a full and complete description of your experience in the following areas:

(a) knowledge of the South Dakota court system and its procedures in contested family matters;

(b) knowledge of South Dakota family law, especially as applied to custody and visitation issues;

(c) knowledge of child development and specifically the impact of divorce or separation on family members;

(d) knowledge of resources available in the state to which the parties and the children can be referred for assistance;

(e) knowledge of interviewing and problem-solving techniques applicable to the family setting.

(3) Provide a full and complete disclosure of all professional employment experiences whether related to the role of a parenting coordinator or in any other field:

(4) Provide complete information regarding any training, seminars, workshops, etc., you deem pertinent to family law, custody and visitation disputes, interviewing and dispute resolution techniques, child-rearing, child development, domestic violence or abuse or any other areas relevant to the services of a parenting coordinator that you have received:

(5) Provide the number of proceedings in which you have been involved as a family court mediator or parenting coordinator giving approximate dates if available:

(6) Describe your approach to resolving high-conflict situations and the methods of dispute resolution you have used:

(7) Please describe how fees and costs will be calculated for your services as a parenting coordinator:

(8) Please describe the requirements for payment of fees:

(9) Please indicate if you are willing to accept pro bono cases or cases at a reduced rate. If so, please explain:

I am aware of and agree to abide by the rules for parenting coordinators as promulgated by the Supreme Court of South Dakota.

I understand that being approved and placed on the roster does not guarantee or ensure my appointment to any specific case or cases.

__________________________________________________________________

Signature Date

NOTE: This form must be updated as changes to the information occur or at least annually.

Approved:

__________________________________________________________________

Presiding Judge Date

Source: SL 2013, ch 268, § 4 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-68Term of parenting coordinator--Resignation--Discharge.

The term of the parenting coordinator will be designated in the order of appointment. The parenting coordinator may resign upon notice to the parties and the court. Absent an order of the court, one or both parties cannot discharge a parenting coordinator. The court may terminate the service of the parenting coordinator at any time.

Source: SL 2013, ch 268, § 5 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-69Parenting coordinator fees and costs.

A parenting coordinator shall disclose how fees and costs will be calculated for any services rendered and such fees and costs are subject to the approval of the court. The fees and costs for any parenting coordinator shall be at the sole expense of the parties. The court will determine the allocation of any fees between the parties in the order of appointment and may through subsequent court order change the allocation of fees and reallocate fees already paid based on the circumstances of any particular case.

Source: SL 2013, ch 268, § 6 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-70Duties of parenting coordinator.

The court order appointing the parenting coordinator shall specify the scope of the appointment and authority of the parenting coordinator. Additionally, a parenting coordinator may be ordered to do one or more of the following:

(1)    Inform the parties of the role of the parenting coordinator;

(2)    Monitor implementation of a voluntary or court-ordered parenting plan, the schedule, or parenting time issues provided such resolution does not involve a substantive change to the court's order;

(3)    Recommend strategies for implementing the parenting plan or resolving other parenting issues that may be impacting the parenting plan;

(4)    Assist the parties in developing communication and cooperation for the purpose of effective co-parenting of the children;

(5)    Assist with implementation of court orders and make recommendations to the court regarding implementation, clarification, modification, and enforcement of any temporary or permanent parenting time orders;

(6)    Exclude counsel for the parties from participating in any parenting coordinator sessions;

(7)    Implement domestic violence safeguards as the court deems necessary. For example, ordering no direct communications or no joint meetings, ensuring compliance with all provisions of any protection order or order in a criminal proceeding;

(8)    Document the services provided and record agreements reached;

(9)    Recommend appropriate community resources to one or both parents;

(10)    Educate the parties to effectively parent in a manner that minimizes conflict, develops appropriate parenting skills, identifies sources of conflict, and works to lessen the effect of conflict on the children;

(11)    Make recommendations on the day-to-day issues experienced by the parties;

(12)    Act to empower the parties in resuming parental controls and decision-making, and minimize the degree of conflict between the parties for the best interests of the children;

(13)    Facilitate the ability of both parents to maintain ongoing relationships with the children;

(14)    Only with the prior consent of the court as specified in the order of appointment, make limited decisions subject to review by the court upon motion of the parties as specified in the order of appointment. By way of example only, these issues include disagreements around exchanges, time-sensitive issues, holiday scheduling, discipline, health issues, school and extracurricular activities, and managing problematic behaviors by the parents or children; and

(15)    Interview law enforcement, social workers, health care providers, daycare providers, teachers and family members as necessary to fulfill the terms of the court order. The parties shall be required to sign releases authorizing the parenting coordinator to speak to specific third parties about specific events.

A parenting coordinator shall not have the authority to make any decision affecting child support, a change of custody, or a substantial change in parenting time.

The order appointing the parenting coordinator shall provide direction to the parenting coordinator regarding information or records, if any, which the parenting coordinator is to file with the court. The parenting coordinator shall not engage in ex-parte communication with the court and all documents sent to or filed with the court shall also be sent to the parties in the case.

Source: SL 2013, ch 268, § 7 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-71Attorney and parenting coordinator fees related to motion.

The court may award attorney fees and allocate the fees of the parenting coordinator related to any motion of the parties.

Source: SL 2013, ch 268, § 8 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-72Authority of court.

The appointment of a parenting coordinator does not divest the court of its exclusive jurisdiction to determine fundamental issues of custody, visitation and support, and the authority to exercise management and control of the case.

Source: SL 2013, ch 268, § 9 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-73Standards of conduct for parenting coordinators.

Parenting coordinators are expected to conduct themselves by the highest ethical standards. Parenting coordinators should conduct themselves according to the following general principles:

(1)    A parenting coordinator should recognize that success is based on participation and self-determination by the parties. A parenting coordinator shall conduct any session fairly, diligently, impartially and in a manner consistent with assisting the parties under the direction of the court's order and in the best interests of the children.

(2)    A parenting coordinator shall fully disclose to all parties involved any actual or potential conflict of interest. A parenting coordinator shall not accept or shall withdraw from any matter in which the parenting coordinator has reason to believe he or she cannot proceed in an impartial manner. After full disclosure of an actual or potential conflict of interest to the parties, the parenting coordinator shall withdraw from the case if requested by any party to do so within ten days of the disclosure.

(3)    A parenting coordinator shall maintain impartiality in the process of parenting coordination. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all parties, as opposed to any one individual. A parenting coordinator shall withdraw if the parenting coordinator determines he or she cannot act in an impartial or objective manner.

(4)    A parenting coordinator shall not provide any other professional services to either party or the minor children while serving as a parenting coordinator. A parenting coordinator shall also ensure that any prior history of involvement with the parties does not conflict with the role of parenting coordinator, and shall not assume a role subsequent to acting as parenting coordinator which conflicts with the prior role of parenting coordinator.

(5)    Incidents of suspected child or adult abuse or neglect that meet the mandatory reporting standards under South Dakota law shall be reported by the Parenting Coordinator to the appropriate authorities.

(6)    A parenting coordinator should make a conscious effort to recognize violence or abuse by or against the parties or children. A parenting coordinator shall consider the safety of all involved when structuring the parenting coordination process and may recommend that parenting coordination is not appropriate for the parties.

Source: SL 2013, ch 268, § 10 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-74Communications with parenting coordinator not confidential.

Parenting coordination is not a confidential process. There is also no evidentiary privilege for communications made as part of the parenting coordination process. The parenting coordinator may be called to testify if ordered by the court in the case.

Source: SL 2013, ch 268, § 11 (Supreme Court Rule 13-07), eff. July 1, 2013.


25-4-75Motion to reopen case to divide assets omitted from property division.

Any court that has entered an original decree of marital annulment, dissolution, or legal separation and determined a division of the property shall reopen the case upon the motion of either party to the original decree if the moving party alleges all of the following regarding any assets belonging to either or both of the parties:

(1)    The assets existed at the time of the entry of the decree;

(2)    The assets were not encompassed by the original decree; and

(3)    The assets are currently more than de minimus assets.

Source: SL 2013, ch 118, § 1.


25-4-76Equitable division of inadvertently omitted assets.

If the court finds the assets were inadvertently omitted from the division of property, the court shall make an equitable division of the omitted assets. The court shall make an equitable division of the omitted assets, whether the titles to the assets are in the name of the husband or the wife. The court shall consider equity, the circumstances of the parties at the time of the original decree, and the circumstances of the parties when a motion for omitted assets is filed.

Source: SL 2013, ch 118, § 2.


25-4-77Remedies for intentional concealment of omitted assets.

If the court finds the omitted assets were intentionally concealed by the nonmoving party or the nonmoving party's agent, the court may order an equitable division of the omitted assets' appreciated value, a forfeiture of the omitted assets to the moving party, or any other appropriate distribution. In addition, the court may award either compensatory damages or punitive damages, or both, to the moving party.

Source: SL 2013, ch 118, § 3.


25-4-78Attorneys fees for motion for omitted assets.

The court may award attorney fees for a motion for inadvertently omitted assets filed pursuant to §§ 25-4-75 to 25-4-83, inclusive. The court shall award attorney fees to the moving party if the court finds the omitted assets were intentionally concealed by the nonmoving party or the nonmoving party's agent.

Source: SL 2013, ch 118, § 4.


25-4-79Jurisdiction over motions for omitted assets when court of this state entered original decree.

Any court of this state that has entered an original decree of marital annulment, dissolution, or legal separation and determined the division of property has exclusive, continuing jurisdiction over the subsequent motions for omitted assets unless the court that entered the original decree determines a court of another state is a more convenient forum.

Source: SL 2013, ch 118, § 5.


25-4-80Jurisdiction over motions for omitted assets when court of another state entered original decree.

A court of this state may adjudicate a motion for omitted assets when a court of another state entered the original decree of marital annulment, dissolution, or legal separation and determined the division of property only if the court of the other state that entered the original decree determines it does not have exclusive, continuing jurisdiction or determines a court of this state is a more convenient forum. However, if the omitted asset is real property that lies in this state, a court of this state may adjudicate a motion for omitted assets regardless of whether a court of another state entered the original decree.

Source: SL 2013, ch 118, § 6.


25-4-81Time for filing motion for inadvertently omitted assets.

A motion for omitted assets alleging inadvertent omission of assets must be filed within two years after the date of discovery of the omission, but no later than three years after the entry of the original decree.

Source: SL 2013, ch 118, § 7.


25-4-82Time for filing motion for intentional concealment of assets.

A motion for omitted assets alleging intentional concealment of assets must be filed within two years after the date of discovery of the omission, but no later than ten years after the entry of the original decree.

Source: SL 2013, ch 118, § 8.


25-4-83Nonexclusive remedies.

The provisions of §§ 25-4-75 to 25-4-82, inclusive, are not intended to be exclusive remedies and do not preclude the use of any other criminal or civil remedy.

Source: SL 2013, ch 118, § 9.


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