Understanding Partition of Spousal Property After Separation in South Dakota
Detailed Answer
Partition is a court action that lets co-owners divide or sell jointly held real estate. In South Dakota, anyone who owns property as a co-tenant can file a partition suit under SDCL Chapter 21-51. This includes spouses who hold land as tenants in common or joint tenants even after they separate.
Under SDCL 21-51-1, a co-tenant may petition the court to physically divide the land into distinct parcels or order a public sale and distribute the proceeds among owners. You must name your spouse in the petition and follow service rules. Once you file, the court appoints commissioners to survey the land and report on whether partition in kind (dividing the land) is practical. If it isn’t, the court orders a sale and divides the net proceeds by ownership share.
However, if you file for divorce before—or soon after—you begin a partition action, the family court gains authority over marital assets under SDCL 25-4A-45 (equitable distribution). The divorce court can freeze or override a partition case to ensure fair division of all marital property.
Key points to consider:
- If you have not yet filed for divorce, you can start a partition case to protect your interest in the property.
- Once you file for divorce, the family court may enjoin the partition action to prevent conflicting judgments.
- Partition suits are strictly procedural under SDCL 21-51-1 et seq..
- Divorce courts use equitable distribution under SDCL 25-4A-45 to divide marital assets fairly; they consider factors like marriage duration, contributions, and future needs.
Helpful Hints
- Verify how you hold title: joint tenancy or tenancy in common.
- Gather the deed, surveys, and account statements before filing.
- File the partition petition in the county where the property lies.
- Serve your spouse properly to avoid delays.
- Consider timing: a pending divorce may halt your partition suit.
- Estimate court costs and fees for surveyors and publication.
- Consult a family law attorney to align partition plans with divorce strategy.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult an attorney to address your specific situation.