It is a common misconception that, when a couple chooses to end their marriage, the division of all of their shared assets will occur in an even 50/50 fashion. South Dakota is an equal distribution state, and while that may imply a perfect 50/50 split of assets, it is not actually what it means or how it works out for many couples. Equal distribution just means each party will walk away with a fair share of assets, which may or may not equal 50% of the marital property.
Equitable distribution states look at a lot of information before finalizing property division in divorce. A couple’s assets, their debts and each party’s contribution to the marriage, as well as each party’s financial need and the length of the union, are all factors taken into consideration and will affect the final settlement terms in the end.
Is all property up for grabs in divorce?
No. There are items the state deems separate property, and the owner of that property gets to keep it unless there is a way to prove a commingling of assets occurred. The following assets are generally separate property:
- Assets owned before the marriage
Of course, any assets protected by a pre- or postnuptial agreement may also be excluded from the property division phase of the divorce proceedings.
Do the courts get to decide who gets what?
Not necessarily. Many couples can reach mutual agreements on their own through private negotiation, mediation or arbitration. The courts only get a say if mutual agreements are overwhelmingly unfair to either party or if parties cannot reach agreeable terms. Believe it or not, most couples can avoid litigation by utilizing alternative dispute resolution methods, such as mediation, arbitration or collaboration. Some can avoid negotiations entirely by agreeing to a no-contest divorce — meaning they have reached agreeable terms before submitting their filing.