South Dakota Divorce Temporary Orders: SDCL 25-4-38 Explained

The moment a divorce summons is served in South Dakota, an automatic temporary restraining order (ATRO) takes effect under SDCL 25-4-33.1 — freezing the marital estate and preventing either spouse from dissipating assets, canceling insurance, or making major financial moves. But the ATRO is just the baseline. Temporary orders under SDCL 25-4-38 go further, establishing specific financial arrangements that govern the entire divorce process.

What the Automatic Restraining Order Does

Upon service of the summons, both spouses are immediately prohibited from:

• Transferring, selling, encumbering, or hiding marital property
• Canceling or modifying life, health, auto, or homeowner's insurance policies
• Destroying financial records or documents
• Making extraordinary expenditures beyond normal household expenses

These restrictions apply equally to both parties — the petitioner from the date of filing, the respondent from the date of service. Violating the ATRO can result in contempt sanctions, adverse inferences at trial, and the court ordering the violating spouse to restore the dissipated assets.

Temporary Orders Beyond the ATRO

The ATRO prevents damage. Temporary orders under SDCL 25-4-38 establish affirmative arrangements for the duration of the divorce:

Temporary spousal support — The court can order one spouse to pay the other a monthly amount to cover basic living expenses during the proceedings. This ensures the lower-earning spouse isn't forced into an unfavorable settlement simply because they can't afford to wait.

Exclusive possession of the marital home — One spouse may be granted temporary use of the residence. This doesn't affect the final property division, but it prevents both parties from occupying the same space during a high-conflict period.

Bill payment allocation — The court can specify who pays the mortgage, utilities, car payments, and insurance premiums during the divorce. Without this, joint debts often go unpaid as each spouse assumes the other is responsible.

Attorney fee advances — If one spouse controls all liquid assets, the court can order them to pay a portion of the other's attorney fees to level the playing field.

How to Request Temporary Orders

Either spouse can file a motion for temporary orders at any point after the divorce action is commenced. The motion must include:

1. A completed Form UJS-023 (Financial Statement) showing current income, expenses, and obligations
2. A specific request identifying what orders you need and why
3. Supporting documentation (pay stubs, mortgage statements, evidence of need)

The court typically schedules a hearing within 2-4 weeks of the motion. Both parties present their financial positions, and the judge issues orders that remain in effect until the final decree or until modified by further court order.

The Financial Affidavit Is Critical

Your temporary order outcome depends almost entirely on the quality of your UJS-023 Financial Statement. This form requires exhaustive disclosure — seven income categories, itemized monthly expenses, asset inventories, and liability schedules with creditor names and balances.

Judges use this form to determine temporary support amounts and bill allocations. An incomplete or inaccurate financial statement undermines your credibility and can result in orders that don't reflect your actual needs.

Court clerks are legally prohibited from helping you complete the form. The numbers, calculations, and categorizations are entirely your responsibility.

When Temporary Orders Matter Most

Temporary orders are most critical when:

• There's a significant income disparity and the lower-earning spouse needs immediate support
• Both spouses lived in the marital home and someone needs to move out
• Joint debts are at risk of default because neither spouse is making payments
• One spouse is making large purchases or withdrawals despite the ATRO
• The divorce is expected to take 6+ months due to contested issues

For uncontested divorces where both parties cooperate, formal temporary orders may be unnecessary — the ATRO provides sufficient protection during the 60-day waiting period.

The South Dakota Divorce Financial Split Guide includes a UJS-023 preparation worksheet that walks you through every section of the financial statement, ensuring your temporary order motion is supported by complete, accurate documentation.

See more South Dakota guides →