South Dakota Postnuptial Agreement

Updated January 23, 2023

A South Dakota postnuptial agreement is a legal document used by married couples to determine how their assets will be divided if the marriage ends in divorce or death. Like prenuptial agreements or “prenups,” postnuptial agreements are precious in divorce cases when judges usually have expansive power to divide a couple’s assets; if a postnuptial or prenuptial agreement is in place, it generally takes precedence over the state’s default rules.

However, unlike prenuptial agreements, which are signed before marriage, postnuptial agreements are signed after a couple is already married, which means they face additional rules.

Signing Requirements (S.D. Codified Laws § 53-8-2(2)) – An agreement made upon consideration of marriage, other than a mutual promise to marry, must be in writing and signed by both parties.

Laws

Scrutiny: Postnuptial agreements are subjected to scrutiny because of the confidential relationship between husband and wife. In re Est. of Smid (2008).

Validity: Postnuptial agreements apply in cases of divorce or death and will be upheld so long as

There was adequate disclosure of the parties’ assets
The agreement was entered into freely
There was adequate consideration, meaning something was received in return for agreeing.

In re Est. of Smid (2008).