SOUTH DAKOTA DIVORCE
The plaintiff in an action for divorce must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services, and in order that each party be entitled to the entry of a decree or judgment of divorce, that residence or military presence must be maintained until the decree is entered. The divorce may be filed in the county in which either spouse resides. The defendant has a legal right to have the case transferred to his or her county if desired.
If you have minor children living with your spouse in another state for over six months then you should consider filing in that state as that court has jurisdiction over the children. You spouse can waive that jurisdiction in writing.
County of Filing:
You should file the divorce in the county your spouse lives in, or in the county that you both lived in when you separated, or in your county if your spouse lives out of state. You or your spouse must have a South Dakota address in the county of filing. South Dakota civilian residents living overseas may file in South Dakota if they have maintained their residency in South Dakota.
MILITARY:
Active duty members of the military (or their spouses) may file in South Dakota if they have been stationed in South Dakota or were residents of South Dakota when they entered active duty. Smart Divorce.com staff includes former active duty officers and enlisted personnel and are completely knowledgeable on the special military requirements and the “Soldiers and Sailors Civil Relief Act”. Our staff prides themselves on the service they provide our military members.
GROUNDS FOR DIVORCE: NO-FAULT or FAULT ?
The no-fault ground for divorce usually used with these documents is “Irretrievable Breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family". Most clients use this ground since it does not require proof at the final hearing.
A full list of the fault grounds that are available for a divorce filed in South Dakota are as follows: (Requires proof or the case can be dismissed)
(1) In favor of either party, when the other was, at the time of the marriage physically and incurably incapacitated from entering into the marriage state.
(2) For adultery.
(3) For voluntary abandonment from bed and board for one year next preceding the filing of the complaint.
(4) Imprisonment in the penitentiary of this or any other state for two years, the sentence being for seven years or longer.
(5) The commission of the crime against nature, whether with mankind or beast, either before or after marriage.
(6) For becoming addicted after marriage to habitual drunkenness or to habitual use of opium, morphine, cocaine or other like drug.
(7) Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together.
(8) In favor of either party, when the other, after marriage, shall have been confined in a mental hospital for a period of five successive years, if such party from whom a divorce is sought is hopelessly and incurably insane at the time of the filing of the complaint; provided, however, that the superintendent of the mental hospital in which such person is confined shall make a certified statement, under oath, that it is his opinion and belief, after a complete and full study and examination of such person, that such person is hopelessly and incurably insane.
(9) In favor of the husband, when the wife was pregnant at the time of marriage, without his knowledge or agency.
(10) In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence.
(11) In favor of the wife when the wife has lived, or shall have lived separate and apart from the bed and board of the husband for two years and without support from him for two years next preceding the filing of the complaint, and she has bona fide resided in this state during said period.
When a judgment of divorce is entered, in effect, it is awarded to both parties to the marriage.
WAITING PERIOD:
South Dakota law requires that thirty (30) days elapse from the filing of the Complaint and summons or Answer and Waiver before a final judgment of divorce be entered. If your spouse signs the South Dakota “Answer and Waiver...” immediately after you file the complaint then you can divorced in as little as 30 days.
The law further requires that neither party to the divorce may remarry, except to each other, until sixty (60) days after the judgment of divorce is entered
PROPERTY OF THE MARRIAGE:
In a divorce, the property (land, house, buildings, and items of personal property) owned (and debts owed) by the couple is divided between the parties. In an uncontested divorce, this division is accomplished by means of a Marital Separation Agreement (MSA). You and your spouse must agree to the property and debt division and memorialize your agreement in the Marital Separation Agreement, which will be incorporated by reference into the Decree of Divorce that ultimately ends your marriage. You may agree to divide the property any way you like, as long as a basic fairness is maintained. You do not need to list items already divided or not an important issue in the divorce. You may revise the MSA after receipt of the documents from us by sending an email with your changes. There is never a charge for revisions at any time up to one year.
If you cannot agree on any item of this division, the dissolution of marriage transforms into a contested divorce. If at the final hearing the divorce is still contested we do not provide advice for that hearing. You may need to consult an attorney or be prepared to tell the judge why you feel your requested division of property is fair.
SPOUSAL SUPPORT:
Spousal Support is either agreed upon by the parties or determined by the judge in a contested hearing. We cannot give legal advice regarding spousal support but will include your request in the documents.
The questionnaire you fill out will outline the custody, visitation and support for the children. We will prepare the documents accordingly, and we will also prepare a Marital Separation Agreement (at no additional cost) which outlines in specific detail all the provisions regarding the children. Both parties must attend the parenting class or get a waiver. A list of the places in South Dakota to attend may be obtained from the court.
CHILD SUPPORT:
The child support will either be an amount you and your spouse agree upon, or it will be determined for you by the court, according to the South Dakota Child Support Guidelines. If you wish the court to calculate the amount then you will need to file the standardized Child Support Guidelines form and Child Support Income Statement/Affidavit which we provide. See “South Dakota Child Support Calculator” on any search engine such as Google, Yahoo, MSN, etc.
CUSTODY:
You may have Joint Legal Custody or Sole Legal Custody. This determines how the decisions are made regarding the raising of the child(ren).
Physical custody may be with one residential parent or “SPLIT CUSTODY” where the child(ren) live a substantial time with each parent.
VISITATION:
This can be any program agreed upon by the parties and may change from time to time. If the parties cannot agree then the state guidelines are in effect. State guidelines are outlined in the MSA provided with your documents. You do not need to list your present visitation agreement as it will change from time to time but you may if you wish. “No Visitation” or “Restricted Visitation” may be requested by supplying the reason on the questionnaire.
COURT ADDRESSES:
You must file the divorce documents in the Circuit Court in the county that you are filing in. Some court addresses for larger counties are as follows:
Minnehaha County Circuit Court: 425 North Dakota Avenue, Sioux Falls, SD 57102-0136 Phone: (605) 367-5900 Fax: 605-367-5916
Clay County Circuit Court: 211 W. Main Street, Vermillion, SD 57069-0377 Phone: (605) 677-6756
Hughes County Circuit Court: 104 E Capitol, Pierre, SD 57501-1238 Phone: (605) 773-3713
Pennington County Circuit Court: 315 St. Jospeh Street, Rapid City, SD 57709-0230 Phone: (605) 394-2575
Brown County Circuit Court: 101 SE 1st Avenue, Aberdeen, SD 57402-1087 Phone: (605) 626-2451
Brookings County Circuit Court: 314 6th Avenue, Brookings, SD 57006-2041 Phone: (605) 688-4200
Codington County Circuit Court: 14 1st Avenue SE, Watertown, SD 57201-6054 Phone: (605) 882-5095
Davison County Circuit Court: 200 E 4th, Mitchell, SD 57301-0927 Phone: (605) 995-8105
Lawrence County Circuit Court: 78 Sherman Street, Deadwood, SD 57732-0626 Phone: (605) 578-2040
FILING FEES:
The court filing fees for a divorce in South Dakota is approximately $75.
If your spouse won't sign and must be served, then the sheriff may charge a fee of around $25 to serve your spouse.
If you don't know the whereabouts of your spouse, then your spouse will need to be served by publication. The average publication fee is approximately $75.
You may call the Clerk of the Court in your county to determine the exact fees in your county.
METHODS OF SERVICE:
1. The most common way is to have your spouse sign the documents AFTER you have filed the complaint with the court. You can hand deliver the documents , mail them or have a third party deliver them to your spouse. This method is available even though your spouse is incarcerated.
2. If your spouse will not sign or you not not sure if your spouse will sign then you can get service by having the sheriff in spouse’s county serve a copy of the filed documents along with other documents requiring spouse’s signature. You can contact the sheriff in any state to serve your spouse. You can also get service by Certified Mail, (Return Receipt Requested) if your spouse lives out of state. If your spouse is incarcerated then you can get service by having the prison/jail officials serve your spouse.
3. Service by publication. If you cannot find your spouse after a diligent search then you can publish. The publication fee for the newspaper is approximately $65 but varies for different counties. Upon the filing of the Affidavit the clerk shall direct that service of notice be made by publication in a newspaper of general circulation in the county in which the complaint is filed. We provide all the required documents for service by publication.
Go to our questionnaire and get started today.
