The
SD Supreme Court handed down one decision this morning, holding inter alia:
- Effort to Delay Entry of Divorce Decree is
problematic
LeFORS
v. LeFORS, 2023 S.D. 24: In this divorce
action, Husband is on active duty with the U.S. Air Force. Wife requested Separate Maintenance while
also requesting that a decree of divorce be delayed two years until the parties
had been married for 20 years so that she could secure benefits available to a
military spouse. The trial court granted
Wife Separate Maintenance, awarding her permanent alimony and also made an
equitable division of marital property.
On appeal, the SD Supreme Court affirmed in part and reversed in
(larger) part, holding:
The trial court is not permitted to Divide
Property in conjunction with an action for Separate Maintenance, recognizing
that the cause of action for Separate Maintenance is separate and distinct from
the cause of action for Legal Separation (for which the trial court would be
permitted to divide property), stating:
[¶26.] In contrast, the remedy of separate
maintenance, provided for in SDCL 25-4-39 and SDCL 25-4-40, is distinct from a
legal separation, and there is no authority allowing a circuit court to
equitably divide a marital estate when granting separate maintenance.
Since the Division of Property award is reversed,
the trial court’s decision on permanent alimony is also reversed and
remanded. The determination of alimony
must be considered “in light of the property division.”
Wife’s request for appellate attorney fees is
denied because it was filed after Oral Argument, not “served
and filed prior to submission of the action on its merits,” as required by SDCL
15-26A-87.3(2).
The
Court’s decision is unanimous (5-0), with opinion authored by Chief Justice
Jensen.
This
decision may be accessed at
