A critical aspect of your divorce will be your property settlement where your spouse’s and your property is divided. This not only includes dividing bank accounts, mutual funds, retirement accounts, and real estate but also marital debt. The division of property can be accomplished through a property settlement agreement that you and your spouse agree to or could be decided by the judge. Understanding how property is divided in a divorce in South Dakota can help you obtain a fair share of your marital property.
South Dakota is an equitable property division state, which means that your marital property will be split equitably based on how you and your spouse lived during your marriage and your financial needs after the divorce. It does not mean that the property will be distributed equally. If you and your spouse do not agree on how to divide property, the circuit court judge assigned to your case will make the final decision. The judge will most likely take the following approach:
In a divorce, your property will be classified as marital or separate property. Marital property is property belonging to the marriage and is generally property that was acquired or earned during the marriage. Separate property is property you owned before your marriage or that was only given to one of you during your marriage, such as inherited property. However, if the separate property is used for the benefit of the marriage or shared with your spouse, it could be considered marital property. An example of this could be a house you inherited from a family member that you and your spouse lived in for years and you both spent considerable money on home improvements.
Even if property is titled in the name of one spouse, the judge could consider it marital property if that is the most equitable way to divide the property. Factors a judge may use in making a property division decision include:
A spouse’s fault in causing the divorce is not considered in dividing property even if you must prove fault as a grounds for getting divorced.
Dealing with marital debt is an important part of your property settlement to enable you to get a fresh start in your new life. Generally, debt incurred during a marriage is considered marital debt, and you and your spouse would be equally responsible for paying it. Once you and your spouse separate, any debts you incur, such as credit card debts, could be considered your own debt. You should take the following steps in dealing with marital debts:
Unfortunately, credit card companies and other financial institutions are not bound by your agreement on debts with your spouse. This means that if he agrees to pay a certain credit card debt that you jointly owe with him and does not do it, the credit card company can require you to pay the entire debt. That is why it is always best to transfer accounts so you only have debts you agree to be responsible for in your name before your divorce is finalized.
If you are considering filing for divorce, start an online chat or call our experienced legal team at 888-733-2992 today to schedule a free consultation.