All Property and the Fault Rule in South Dakota

South Dakota courts can reach all the property belonging to either spouse, whoever holds title, and fault is not taken into account in awarding property, though it still counts for alimony.

All property can be reached

The statute speaks of “the property belonging to either or both” and says nothing of marital or separate property, so the Supreme Court calls South Dakota an “all property state,” meaning all property of the divorcing parties is subject to equitable division regardless of title or when it was acquired: courts classify property as marital or nonmarital, but inherited property is not ipso facto excluded from the overall division, and how and when property was acquired is part of what equity requires (SDCL 25-4-44).

Fault is excluded

“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” (SDCL 25-4-45.1).

Where fault still matters

Fault remains a consideration for alimony, not for the property award.

Evidence to gather

Dated records showing when and how each asset was acquired, the source of funds for any improvement and statements for the accounts.

Keeping the right paperwork

Keep records that trace premarital property, inheritances and gifts to their source; they are not shielded by statute, but a clear record supports an argument that equity favors the spouse who brought them.

Questions to bring to an attorney

Ask how the origin of each asset would be treated and what records you need.

In the calculator

Leave out of the totals any property you want to see excluded, or adjust the slider, in the South Dakota property division calculator.

Frequently asked questions

Is premarital property divided in South Dakota?

The statute has no separate-property exception, so the court may consider it, with its origin weighing in the equity.

Does South Dakota consider adultery in property division?

No. Fault is not taken into account in awarding property.

Does South Dakota consider fault for alimony?

Yes. The relative fault of the parties is an alimony factor.

Can a South Dakota court divide retirement accounts?

Yes. They are property belonging to a spouse and can be divided.

Is South Dakota an all-property state?

Yes. The Supreme Court calls it an all property state: all property of the divorcing parties is subject to equitable division, though courts classify it as marital or nonmarital.

Official sources

Going through a divorce or custody case in South Dakota?

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Talk to a South Dakota attorney

This is general information, not legal advice. It is based on the cited South Dakota statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed South Dakota attorney.