South Dakota
Legal Separation in South Dakota: Separate Maintenance and Rules
Independently fact-checked against primary sources (last audited October 8, 2026). · 15 primary sources cited on this page. How we verify our legal content
Yes. South Dakota offers two ways for spouses to stay married while living apart under court orders: a legal separation, which SDCL 25-4-17.2 lets the court decree when it finds irreconcilable differences, and an action for separate maintenance under SDCL 25-4-40, which can rest on any ground for divorce.
Information last verified on 2026-10-08. This article has not been reviewed by a licensed lawyer.
Jurisdiction scope: This article covers legal separation and separate maintenance under South Dakota law, SDCL chapter 25-4 (Divorce and Separate Maintenance) and SDCL 25-2-13 on separation agreements. It does not cover support amounts, property division in a separation decree, court forms, or other states' law. For divorce grounds and procedure, see South Dakota divorce laws.
Can you get legally separated in South Dakota?
Yes. Chapter 25-4 of the South Dakota Codified Laws is titled "Divorce and Separate Maintenance," and it provides two routes.
| Legal separation | Separate maintenance | |
|---|---|---|
| Statute | SDCL 25-4-17.2 | SDCL 25-4-40 |
| Ground | Irreconcilable differences that have caused the irremediable breakdown of the marriage | "Any grounds which would be grounds for divorce" |
| Consent | Both spouses must consent on the irreconcilable-differences ground, unless one has not made a general appearance | This page does not cover whether the 25-4-17.2 consent rule applies to separate maintenance on the irreconcilable-differences ground |
| What the court can award | A decree of separation; if the case is continued for a possible reconciliation (up to 30 days), interim orders on support, custody, attorney fees and property preservation | Temporary alimony, suit money, and permanent support for a spouse and the children |
Legal separation under SDCL 25-4-17.2
The key sentence of SDCL 25-4-17.2 reads:
"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."
Under the same section, the court may not decree a legal separation or a divorce on the irreconcilable-differences ground without the consent of both parties, unless one party has not made a general appearance.
If it appears there is a reasonable possibility of reconciliation, section 25-4-17.2 requires the court to continue the case for up to thirty days. During that 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."
Afterward, "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."
Separate maintenance under SDCL 25-4-40
Separate maintenance is the other route. SDCL 25-4-40 provides:
"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."
SDCL 25-4-2 lists seven grounds for divorce, each of which can also support separate maintenance under 25-4-40: "(1) Adultery; (2) Extreme cruelty; (3) Willful desertion; (4) Willful neglect; (5) Habitual intemperance; (6) Conviction of felony; (7) Irreconcilable differences."
A related rule covers a divorce case that fails. Under SDCL 25-4-39, "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."
Residency, waiting period and the automatic restraining order
Residency. SDCL 25-4-30 provides: "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." The plaintiff need not keep that residence afterward to receive the decree. The section ties residency to the day the case begins and does not state a minimum period.
Sixty-day wait. Under SDCL 25-4-34, "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." During that period the court may issue orders under 25-4-38 and 25-4-45.
Automatic restraining order. SDCL 25-4-33.1 provides that, upon the filing of a summons and complaint for divorce or separate maintenance and personal service, a temporary restraining order is in effect against both parties. It restrains both spouses 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 requires notice of and an accounting for extraordinary expenditures. It also bars molesting or disturbing the other spouse, removing a minor child from the state without written consent or a court order, and most changes to insurance coverage. It lasts until the final decree, dismissal, or further court order.
What a separation does and does not do
You stay married. SDCL 25-4-1 provides that "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." Section 25-4-17.2 itself treats "dissolution" and "legal separation" as different outcomes.
Property is less clear. The equitable division statute, SDCL 25-4-44, begins "When a divorce is granted." This page does not cover whether or how a South Dakota court divides property in a legal separation or separate maintenance decree; ask a South Dakota lawyer. During the 25-4-17.2 continuance, the court may enter orders "for the preservation of the property of the parties."
Inheritance. Under SDCL 29A-2-802, "A decree of separation that does not terminate the status of husband and wife is not a divorce" for purposes of that section, which says who is not a surviving spouse. SDCL 29A-2-804 says the same for its rule that a divorce revokes gifts to a former spouse in a will or beneficiary designation. Under 29A-2-213(d), unless it provides otherwise, a complete property settlement made after or in anticipation of separation waives each spouse's elective share, homestead allowance, exempt property and family allowance and renounces benefits that would otherwise pass by intestate succession or under a will signed before the settlement.
For support amounts, see South Dakota alimony laws. For custody, see South Dakota child custody laws.
Separation agreements
Spouses do not need a court case to agree on a separation. SDCL 25-2-13 provides 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."
Moving from separation to divorce
Within a 25-4-17.2 case, either spouse may move for dissolution of the marriage after the thirty-day period, and the court may enter its judgment decreeing the dissolution or separation. This page does not cover a procedure for converting a final legal separation or separate maintenance decree into a divorce later.
South Dakota's list of divorce grounds in 25-4-2 does not include living apart for a set period. A spouse who later wants a divorce relies on one of the seven grounds in 25-4-2, or on the separate discretionary ground in 25-4-18 for a spouse's incurable chronic mania or dementia lasting five years or more while under court-ordered confinement.
Court forms
This page does not cover court forms for legal separation or separate maintenance in South Dakota. The clerk of court can explain how to start a case.
Disclaimer: This article provides general legal information about legal separation and separate maintenance under South Dakota law, including SDCL 25-4-17.2, 25-4-40, 25-4-30, 25-4-34 and 25-2-13. It is not legal advice. The information was verified on 2026-10-08, and the law can change. For advice about a specific situation, consult a lawyer licensed in South Dakota.
Related
- Legal separation laws in every state
- South Dakota divorce laws
- South Dakota alimony laws
- South Dakota child custody laws
- South Dakota child support laws
Last updated: 2026-10-08.
Frequently Asked Questions
Does South Dakota recognize legal separation?
Yes. Under SDCL 25-4-17.2, a court that finds irreconcilable differences causing the irremediable breakdown of the marriage shall order a dissolution or a legal separation, and SDCL 25-4-40 also allows an action for separate maintenance without a divorce.
What is the difference between legal separation and separate maintenance in South Dakota?
A legal separation under SDCL 25-4-17.2 rests on irreconcilable differences and needs both spouses' consent unless one has not made a general appearance. Separate maintenance under 25-4-40 may rest on any divorce ground and lets the court award alimony, suit money and support.
How long do you have to live in South Dakota to file for separate maintenance?
SDCL 25-4-30 requires the plaintiff to be a South Dakota resident, or stationed in the state in the armed services, when the action is commenced, and states no minimum period.
Is there a waiting period for separate maintenance in South Dakota?
Yes. Under SDCL 25-4-34, a divorce or separate maintenance action cannot be heard until at least sixty days after completed service of the summons and complaint.
Can my spouse sell property after I file for separate maintenance in South Dakota?
After filing and personal service, SDCL 25-4-33.1 puts a temporary restraining order in effect against both spouses that restrains transferring, encumbering, concealing or disposing of marital assets without the other spouse's written consent or a court order, except in the usual course of business or for the necessities of life.
Are you still married after a legal separation in South Dakota?
Yes. SDCL 25-4-1 provides that marriage is dissolved only by a spouse's death or a court judgment decreeing a divorce.
Updates
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
South Dakota Codified Laws, Chapter 25-4: DIVORCE AND SEPARATE MAINTENANCE
§ 25-4-17.2Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties.In force
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
§ 25-4-40Action for separate maintenance without divorce--Alimony and support.In force
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
§ 25-4-39Separate maintenance granted on denial of divorce.In force
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
§ 25-4-30Residence requirements for divorce or separate maintenance.In forcecited in 2 of our articles
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 5 court opinions in our collectionLatest citing opinion in our collection: 2025
Opinions citing this section in our collection:
- Langdeau v. Langdeau (South Dakota Supreme Court 2008, 751 N.W.2d 722)“…termination as to the encompassing divorce action) (citing SDCL 25-4-30; 15-7-2(9)). Divorce jurisdiction is n…”
- Lustig v. Lustig (South Dakota Supreme Court 1997, 560 N.W.2d 239)“…clined, as it was properly commenced first in South Dakota. SDCL 25-4-30; 15-7-2(9). We affirm the decision to d…”
- Rush v. Rush (South Dakota Supreme Court 2015, 866 N.W.2d 556)“…issed his divorce action for lack of personal jurisdiction. SDCL 25-4-30 provides: The plaintiff i…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: South Dakota Divorce Laws (2026): Grounds, Residency, and Process
§ 25-4-34Waiting period before trial of divorce and separate maintenance actions--Temporary orders and preliminary proceedings during waiting period.In forcecited in 2 of our articles
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
Cited in 4 court opinions in our collectionLatest citing opinion in our collection: 1995
Opinions citing this section in our collection:
- Zwanziger v. Zwanziger (South Dakota Supreme Court 1979, 286 N.W.2d 123)“…rial court of subject matter jurisdiction. We agree. SDCL 25-4-34 provides, in part, that “[a]n action fo…”
- Jopling v. Jopling (South Dakota Supreme Court 1995, 526 N.W.2d 712)“…this fact. Therefore, we review this as a question of law. SDCL 25-4-34 provides in part: An action for…”
- Adam v. Adam (South Dakota Supreme Court 1977, 254 N.W.2d 123)“…vision for temporary as opposed to permanent decrees. While SDCL 25-4-34 provides that: "* * * During [the] wait…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 25-4-2Grounds for divorce.In forcecited in 2 of our articles
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.
Official text (excerpt) · last checked 2026-09-05 · Read the full text in our law library · Verify at sdlegislature.gov
South Dakota Codified Laws, Chapter 25-2: RIGHTS AND OBLIGATIONS OF MARRIAGE
§ 25-2-13Alteration of legal relations by husband and wife--Separation and support agreements.In force
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.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at sdlegislature.gov
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Sources and References
- SDCL 25-4-17.2, dissolution or legal separation for irreconcilable differences(sdlegislature.gov).gov
- SDCL 25-4-40, separate maintenance without divorce(sdlegislature.gov).gov
- SDCL chapter 25-4, Divorce and Separate Maintenance(sdlegislature.gov).gov
- SDCL 25-4-2, grounds for divorce(sdlegislature.gov).gov
- SDCL 25-4-39, maintenance when divorce denied(sdlegislature.gov).gov
- SDCL 25-4-30, residency for divorce or separate maintenance(sdlegislature.gov).gov
- SDCL 25-4-34, sixty-day waiting period(sdlegislature.gov).gov
- SDCL 25-4-33.1, automatic temporary restraining order(sdlegislature.gov).gov
- SDCL 25-4-1, dissolution of marriage(sdlegislature.gov).gov
- SDCL 25-4-44, equitable division of property on divorce(sdlegislature.gov).gov
- SDCL 25-2-13, written separation agreements(sdlegislature.gov).gov
- SDCL 25-4-18, chronic mental illness as discretionary divorce ground(sdlegislature.gov).gov
- SDCL 29A-2-802, effect of divorce, annulment and decree of separation(sdlegislature.gov).gov
- SDCL 29A-2-804, revocation of probate and nonprobate transfers by divorce(sdlegislature.gov).gov
- SDCL 29A-2-213, waiver of right to elect and of other rights(sdlegislature.gov).gov