Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, October 7, 2005

Case Law Development: Equitable Division of Property Requires Consideration of Multiple Factors

In a case involving Husband’s inherited land, the Supreme Court of South Dakota has emphasized the importance of a careful equitable balancing before any property is set aside as non-marital.  During the course of the couple’s 26-year marriage, Husband was given 66 acres of land by his parents, as a lifetime distribution of their estate.  Husband and Wife sold their home and built a home on the land.  At divorce, the trial court determined that only 10 acres of the land was subject to division and set aside the rest as Husband’s non-marital property.  The trial court considered the intent of the parents that the land be their son’s inheritance.  The supreme court reversed on the basis that, given South Dakota's "all property" approach to division of property at divorce, the trial court erred when it did not consider a broad range of equitable factors required for property division.

Godfrey v. Godfrey, 2005 SD 101; 2005 S.D. LEXIS 163 (September 28, 2005)
Opinion on the web at (last visited October 4, 2005 bgf)

South Dakota  legislation makes all property owned by either spouse subject to equitable division, but does not identify any factors to guide that discretion.  The South Dakota Supreme Court had previously identified a list of seven factors the court must consider: “(1) the duration of the marriage; (2) the value of the property owned by the parties; (3) the ages of the parties; (4) the health of the parties; (5) the competency of the parties to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of  the parties' assets.”  The supreme court here held that the trial court erred in failing to consider these factors.  In its own analysis, the supreme court concluded that all of the property should have been subject to division.  The court emphasized the fact that the property had been deeded by the parents to both Husband and Wife and the Wife’s economic and non-economic contributions to management and improvement of the property.

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