A person who no longer wishes to be married may file for divorce. But in South Dakota, if the other spouse refuses to agree to a no-fault divorce, the spouse seeking the divorce must prove a “legal ground” for ending the marriage. Those grounds include adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance and conviction of a felony. The most commonly used is “extreme cruelty.”

South Dakota does provide for “irreconcilable differences” as a no-fault ground. But if the other spouse contests the divorce, that ground is not available, unless the spouse agrees or fails to respond after being served with process.

How and why does this matter? It matters particularly to victims of domestic violence. A victim who wants to leave an abusive marriage may already be frightened of what the abusive spouse will do. Requiring that victim to accuse the spouse of “extreme cruelty” and then potentially testify in court can create another barrier to leaving.

This is not merely a theoretical concern. In 1994, Tania Aesoph of South Dakota sought the assistance of an attorney in beginning divorce proceedings. She was experiencing physical, verbal and mental abuse and told others that she feared her husband would kill her if she divorced him. She abandoned the divorce effort. 

Several years later, she again decided to leave. In November 1999, she moved with her youngest child to an apartment in Faulkton. On November 18, 1999, she contacted her attorney about reinstating divorce proceedings.  She was then faced with the prospect of having to testify directly against her husband in court to prove extreme cruelty. After she met with her attorney, Tania returned to the marital home where her husband lived.  Later that same day, he killed her.

The South Dakota Supreme Court subsequently affirmed her husband’s conviction for first-degree murder and his life sentence. The Court’s opinion documents Tania’s earlier efforts to obtain a divorce and her fear that her husband would kill her if she did so.

Tania’s case does not prove that South Dakota’s divorce law caused her death. Her abusive spouse caused her death.  But we cannot know what might have happened had she been able to obtain a unilateral no-fault divorce. Tania’s story illustrates the danger of making the path out of an abusive marriage difficult for the victim.

There is also empirical evidence that the law governing grounds for divorce can affect domestic violence.  Economists Betsey Stevenson and Justin Wolfers studied the staggered adoption of unilateral no-fault divorce laws across the United States. 

They found that states adopting unilateral divorce experienced an 8–16 percent decline in female suicide, roughly a 30 percent decline in domestic violence, and a 10 percent decline in women murdered by their partners. This research provides strong evidence that divorce laws can affect what happens inside troubled marriages.

I became involved in efforts to change South Dakota’s divorce law in 2014. My interest was prompted in part by Tania Aesoph’s story and by research, including Professor Deborah H. Bell’s analysis of the problems created by fault-based divorce.  On October 9, 2014, my daughter, Shawna Baron, a licensed clinical psychologist, and I published an Op Ed in the Argus Leader titled “Domestic Violence Victims Hindered by South Dakota’s Fault-Based Divorce Law.” We concluded: “It is time for the South Dakota Legislature to recognize the benefits of a unilateral no-fault ground for divorce. Lives depend on it.”

Thereafter, Representative Ray Ring of Vermillion introduced HB 1221 in the 2015 Session.  His bill would have permitted unilateral no-fault divorce. The bill passed the House Judiciary Committee but was defeated on the House floor after vigorous debate. Opponents argued that making divorce easier would weaken foundational principles of marriage. Supporters—including legislators from both political parties and several prominent female legislators—argued that South Dakota should permit a spouse to leave a marriage without first proving fault.

Twelve years have passed since Shawna and I published our Op Ed. South Dakota’s divorce law has not changed. Today’s question is whether that should remain the law. The issue is not whether every troubled marriage should end. Nor is it whether divorce should be made easier simply for the sake of making divorce easier. The question is whether the State should require a person who wants to leave a marriage—and whose spouse refuses to agree—to prove that the other spouse is at fault. 

An abusive spouse may have little incentive to agree to a divorce, particularly when the requirement of proving fault gives that spouse an opportunity to prolong the marriage and the conflict.

We know that victims of domestic violence face extraordinary obstacles when they try to leave. And we have evidence that giving one spouse the ability to obtain a divorce without the other’s consent can reduce domestic violence and other tragic consequences.

South Dakota’s divorce laws were deliberately designed to make divorce difficult. 

That was the philosophy expressed by opponents of reform when this issue was debated in 1996 and again in 2015. Perhaps it is time to present the debate again. For a victim of domestic violence, the ability to leave may be more than a legal right. It may be a matter of life and death.

Authorities: Deborah H. Bell, The Cost of Fault-Based Divorce, 82 Miss. L.J. 131 (2013); Betsey Stevenson & Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” 121 Quarterly Journal of Economics 267 (2006); State v. Aesoph, 2002 S.D. 71, 647 N.W.2d 743 (S.D. 2002); SDCL 25-3-1 through 25-3-8; SDCL 25-4-1 through 25-4-18;  Rita Duenwald Haverly, Establishing Extreme Cruelty, 26 S.D.L.Rev. 58 (1981); Rory P. King, Marriage, Divorce and Custody Reform in South Dakota, 18 S.D.L.Rev. 668 (1973) 

Note: In regard to the preparation of this week’s column, the author would like to thank Attorney Sarah Baron Houy and Claudia Baron for their assistance and input.