South Dakota Marital Domestic Separation and Property Settlement Agreement for persons with No Children, No 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).