Marital Domestic Separation and Property Settlement Agreement Adult Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in South Dakota, but does
include basic and other provisions.
General Summary:
The parties to a marriage may make an agreement in writing to an immediate separation and may make
provision for the support of either of them and of their children during
such separation. Divorce stipulations are governed by the rules of
contract. The terms of a stipulated property settlement agreement
that, by its terms, is not merged into the decree, retains significance
as an independent contract. Still, those terms relating to alimony
and child support provisions are subject to revision when conditions change.
The property settlement aspects of the agreement are not modifiable without
the agreement of the parties.
Statutes:
South Dakota Statutes
TITLE 25 DOMESTIC RELATIONS
CHAPTER 25-2 Rights and obligations of marriage
Alteration of legal relations by husband and wife - Separation
and support agreements:
A husband and wife cannot by any contract with each other alter
their legal relations, except as to property, and except that they may
agree in writing to an immediate separation and may make provision for
the support of either of them and of their children during such separation.
The mutual consent of the parties is sufficient consideration for such
separation agreement.
Case Law:
Divorce stipulations are governed by the rules of contract; their
interpretation is a matter of law for the courts to decide. Houser v.
Houser, 535 N.W.2d 882, 884 (S.D. 1995).
The South Dakota Courts utilize the following procedure in analyzing
a property settlement agreement as follows:
First, in determining the proper interpretation of a contract the
court must seek to ascertain and give effect to the intention of the parties.
Chord v. Pacer Corp., 326 N.W.2d 224, 226 (S.D. 1982); Johnson v. Johnson,
291 N.W.2d 776, 778 (S.D. 1980); Huffman v. Shevlin, 76 S.D. 84,
89, 72 N.W.2d 852, 855 (1955). In determining the intention of the parties,
a court must look to the language that the parties used. Johnson v.
Johnson, 291 N.W.2d 776, 778 (S.D. 1980).
If the intention of the parties is not clear from the writing, then
it is necessary and proper for the court to consider all the circumstances
surrounding the execution of the writing and the subsequent acts of the parties. Janssen
v. Muller, 38 S.D. 611, 614, 162 N.W. 393, 394. The construction given
by the parties themselves to the contract as shown by their acts, if reasonable, will be accorded great weight
and usually will be adopted by the court. Huffman v. Shevlin,
76 S.D. 84, 89, 72 N.W.2d 852, 855 (1955).
It is settled law in this state that alimony and child support provisions
are subject to revision when conditions change. Peterson v. Peterson,
434 N.W.2d 732, 735 (S.D. 1989). However, this rule does not apply
to the parties' property division. Holt v. Holt, 84 S.D. 671,
176 N.W.2d 51 (1970). Absent fraud or some other reason which would apply to any judgment, a divorce decree which incorporates a property
settlement agreement is a final and conclusive adjudication and is not
subject to later modification. Jeffries v. Jeffries, 434 N.W.2d
585, 588 (S.D. 1989).