Divorce

1.  How do courts split up a property in a divorce in South Dakota?

South Dakota splits up marital assets in much the same way as many other states – by using equitable distribution.  This means that the court’s goal is to divide marital assets in a fair and equitable manner between the spouses.  Keep in mind, this does not necessarily mean equal. Instead, the court takes multiple factors into account in order to determine the equitable distribution for each spouse, including contributions to the marriage, living situations, ability of the spouses after divorce, and children.

2.  Can I get joint or shared custody of my children?

Possibly, depending on the circumstances.  At the very least, the court will attempt to provide both parents with adequate parenting time.  South Dakota family courts award custody of the children whose parents are divorcing to either one parent or both.  According to the state law, shared custody is any arrangement wherea child has regular and ongoing contact with both parents.  Keep in mind, parenting time might not be equally divided in terms of physical custody.

3.  My spouse is the primary wage earner in our family.  How can I file for child or spousal support?

You and your attorney will discuss your situation and determine how to proceed regarding child and spousal support.  The sooner you file for either or both forms of support the better because it sets a long-term precedent.  Child support is determined based on a formula enacted by the state and spousal support is determined based on the recipient spouse’s needs and the paying spouse’s income and expenses.

4.  How much does a divorce cost?

The cost of divorce varies from couple to couple based on what is needed to end the marriage.  As far as filing fees are concerned, you will pay about $100 to file paperwork for a divorce in South Dakota.  The total cost of divorce depends on the amount charged by your attorney, how long it takes to reach a settlement, and whether or not additional fees or charges are needed.

5.  How will alimony be determined?

In South Dakota, the court awards alimony either temporarily or permanently based on the owing spouse’s ability to pay, each spouse’s age, the duration of the marriage, and the requesting spouse’s ability to work after the divorce.  South Dakota courts also take into account the degree of marital fault by the recipient – it is not a no-fault divorce state, so you could end up paying or receiving more based on factors like fidelity.

6.  What are the steps in the process of a divorce?

In general, the steps of divorcing in South Dakota include filing for divorce, waiting for the non-filing spouse’s response, negotiation concerning the divorce settlement, and if necessary, court determinations for things like division of assets and spousal support.  The final step is receiving approval from the court for the dissolution of the marriage.  Exactly how many steps and how long divorce takes varies from couple to couple based on their situation and their willingness to work together to create a settlement.

Bankruptcy

1.  When should a business voluntarily file Chapter 7?

A business should file for Chapter 7 when they no longer have the ability or the desire to remain in business.  Filing for Chapter 7 bankruptcy means losing control of the company.  When you file, the trustee takes over your business assets and determines whether the business should be sold as a whole or by individual assets – whatever will benefit creditors the most.  This means if you are liable for any of your business’ debt you could also be facing personal financial issues.

2.  What happens when a business files Chapter 7?

When a business files for Chapter 7 it is taken over by the bankruptcy trustee.  Essentially, the court takes ownership of assets of the business and uses those assets to meet the financial obligations.  In some cases the business is sold as a whole, while in other it is sold by individual asset.  It is the trustee’s job to determine which of these options will garner the greater amount of money for paying creditors.

3.  What happens when a business files Chapter 11?

Chapter 11 is an opportunity for a business to “reorganize” in an attempt to meet its financial obligations.  Companies in debt often use Chapter 11 of the Bankruptcy Code to try to become profitable again.  When they file, a trustee is appointed to “liquidate” (sell) the company’s assets.  That money is then used to pay off debt, which may include debts to creditors and investors.  It does not necessarily mean the business is going under and some businesses have used Chapter 11 to keep them in business.

4.  What happens to my assets during a bankruptcy?

How your assets are treated during bankruptcy depends on what type of bankruptcy you file for.  For instance, in Chapter 7, assets are most likely to be sold and the profits used to pay your creditors.  In Chapter 13 bankruptcy, you retain ownership of assets and agree to a repayment plan that allows you to bring your debts current.  There are also instances in which you can exempt assets from bankruptcy, which means they are protected from the bankruptcy trustee.

5.  Can I apply for a new credit card once I have filed?

It is possible to get credit after you have filed for bankruptcy, but when you should do it varies on a number of factors.  In most cases, you will need to wait until your bankruptcy has been completed, or discharged.  More than likely, you will only be approved for certain types of credit, most of which have unfavorable terms.  However, these options can allow you to repair some of the damage done to your credit and rebuild it over time.

6.  Why do people choose to file chapter 7 over Chapter 13 bankruptcy?

The primary reason people choose Chapter 7 bankruptcy over Chapter 13 is because Chapter 7 offers near-immediate discharge of unsecured debts.  In Chapter 13, you will eventually be granted discharge for unsecured debts, but it is not until you have completed a payment plan that lasts for three to five years.  The downside of Chapter 7 is that your assets are liquidated, so it is often chosen by those who have little to no assets and therefore “nothing to lose.”

Wills/Probate/Estate Planning

1.  What is a durable general power of attorney?

Durable general power of attorney is the legal term for giving a person of your choosing (usually called the “attorney-in-fact” or “agent”) the authority to act on your behalf concerning legal matters and other issues designated by you should you be unable to do so.  It goes into effect when you are unable to make decisions regarding legal matters on your own.  Many people grant their spouses or adult children durable general power of attorney, though you can assign the authority to anyone.

2.  How often do I need to update my Will?

You should update your will any time there is a significant change in your life.  For instance, if you remarry, have children, move, or your current spouse dies; it is a good idea to have an attorney review your will and determine what update is needed.  It is also a good idea to make updates if your financial situation changes or you accrue additional assets.  And finally, you should have an attorney review your will periodically – at least every five to 10 years – whether changes occurred or not, just to make sure everything is in order.

3.  What property can I dispose of in my Will?

Just about any type of property can be disposed of in a will.  For instance, things that are personal property including, art, furniture, collectibles, cash, jewelry, antiques, etc.  Additionally, money in checking accounts, savings accounts, and money market accounts are also included in wills.  So is Intangible personal property, such as stocks, bonds, and other forms of business ownership, as well as intellectual property, royalties, patents, and copyrights can also be part of a will.

4.  What is probate?

Probate is the court-overseen process by which a deceased’s person estate is settled.  Essentially, it is the process of proving the person’s will in a court of law and ensuring it should be accepted as a valid document.  Once a will completes the probate process, the wishes of the deceased can be honor and the estate can be settled which usually includes distributing the assets to family members and others named as beneficiaries.

5.  What is the time period to admit a Will to probate?

The time period for admitting a will to probate in South Dakota varies based on the size of the estate, but in general, there is a 30 day waiting period before the will can be admitted to the court.  The state has both a formal and informal probate process, so it is important to work with an attorney to determine what the deadlines might be for a given estate.

6.  What is involved in the administration of an estate?

The administration of a person’s estate is based on the documents that govern the estate.  For instance, settling an estate with a will is different than settling one governed by an irrevocable trust.  If probate is necessary, as it would be with just a will and if the estate is of a certain value, you will need to “prove” the will in court before administration of the estate can begin.  Once approval is given by the court, the assets in the estate can be distributed based on the wishes of the deceased.

7.  What happens if I die without a will?

If you die without a will, known as dying “intestate”, it means the state becomes the owner of your estate.  It has the power to determine how your assets will be distributed, if at all.  If you have people to whom you would like your assets to pass after you die, it is important to create a will.  Otherwise, the process of settling your estate will be complicated and expensive.

8.  What documents are needed for estate planning?

The documents used for estate planning in South Dakota depend on how you would like to set up your estate.  At the very least, you should have a will that has been reviewed by an experienced estate planning attorney.  It is also a good idea to create documents assigning power of attorney and a living will.  You might also benefit from creating a trust.  The best thing to do is review your assets and wishes with an attorney who can help you determine the best estate planning tools for your situation.

Stanton Anker
https://www.ankerlawgroup.com/