South Dakota divorce details
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Uncontested VS Contested Divorce in South Dakota
In South Dakota, divorce can be both contested or uncontested. It’s clear from the term that contested divorce implies a competition, litigation, and notorious trial battles in order to win the divorce case and gain more than the other spouse. Such divorce cases can take many months and cost great sums of money. The spouses hardly talk to each other during the hearings, and the main roles are played by their attorneys.
In comparison, an uncontested divorce is a great bargain for those who do not have much assets that are difficult to divide, and for those who are just able to cooperate with their spouse in order to arrange a calm and easy divorce. An uncontested divorce in South Dakota doesn’t assume any of the court hearing (even the "final hearing", typical for uncontested cases in other states). So if you have children, there is no need to interview them before the court. Also, you can go through the uncontested divorce without an attorney, which makes this type of divorce much cheaper.
Uncontested Divorce in South Dakota
The main condition of an uncontested divorce is both spouses’ mutual intention to terminate the marriage as well as their willingness to negotiate and cooperate for the common benefit.
The aim of both spouses is to reach an agreement on all the most important terms of their case such as property and debt division, alimony, child custody, support and visitation. All these decisions should be inscribed in the settlement agreement, which must be signed by the parties and approved by the court.
Grounds for Divorce in South Dakota
In South Dakota, you can file for divorce based on both fault and no-fault grounds.
The only no-fault ground sounds like “Irreconcilable differences” and covers all the possible reasons for separating which you don’t want to explain. You just tell the court that the marriage is irreparably broken and so you want a divorce. There is no need to prove anything or to blame anyone. You should consider the cheaper and easier no-fault divorce first, and keep the fault grounds only as a last resort.
Fault grounds for divorce lead to a contested case. It’s not enough just to blame your spouse and wait for benefits from the court. Pointing any of the fault grounds, you must prove the fact of your spouse’s misconduct. Your evidence must be convincing, and you should be ready for your spouse to fiercely defend (likely with the help of a good attorney).
Fault grounds for divorce that are recognized in South Dakota include:
- Extreme cruelty.
- Willful desertion.
- Willful neglect.
- Habitual intemperance.
- Felony conviction.
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South Dakota Residency Requirements to File for Divorce
Before filing the divorce, make sure that the Circuit Court has jurisdiction over your case. It means that you must meet the relevant residency requirements of the state.
In South Dakota, you or your spouse must be a current resident of the state and particular county but unlike most states, there is no need to prove some certain length of your residency or wait for several weeks before filing a Petition.
However, you must remain a resident of South Dakota till the end of the proceeding (which can take at least 61 days).
How to File for an Uncontested Divorce in South Dakota
There is no such concept as a joint petition in South Dakota. As a result, even if the spouses agree to their intention to divorce, one of them is considered as a Plaintiff and the other as a Defendant. The main steps of any uncontested case are the following:
- The Plaintiff files the Complaint for divorce, the Summons, and other paperwork, and submits it to the circuit court.
- It is the Plaintiff’s responsibility to serve the Defendant with the Complaint and Summons. After receiving the copies, the Defendant should confirm the delivery with an Admission of Service form.
- After the Defendant is served with the documents and agrees with the terms of the divorce, the case is officially considered as uncontested.
- The spouses should prepare the Stipulated Agreement and sign it before the notary.
- At the same time the paperwork is filed, the waiting period begins. The spouses should wait 60 days (the mandatory waiting period in South Dakota) for the judge to sign the Final Judgment or Decree of Divorce. It’s good news that uncontested divorce in South Dakota doesn’t require any court hearing.
Do-It-Yourself Divorce in South Dakota
South Dakota welcomes DIY divorces. If the case is pretty simple, there is no need to spend extra money & time to deal with it. You can rely on the self-help section of the South Dakota Judicial System site or use the help of our company.
All that you need is to gather some necessary information about the divorce rules in the state and prepare your documents correctly without missing any details.
Also, be ready to negotiate with your spouse as you have a lot to decide. And if there are some difficulties with children-related issues, please don’t ignore mediation.
How Much Does an Uncontested Divorce Cost?
In South Dakota, the cost of an uncontested case starts with $95 of a filing fee. In addition, you may need a mediation. Mediators’ fees vary between $300 and $1,000, depending on the mediator and the length of the session. Typically it takes between 2-4 hours, and one session is enough.
How Long Does It Take to Get Divorced in South Dakota?
The time needed to finalize an uncontested divorce in South Dakota is determined by the 60-day waiting period after filing the petition. So the divorce cannot be granted for at least 61 days after the paperwork is completed.
A contested divorce can last much longer, typically from 6 to 12 months.
How to Serve Your Spouse in South Dakota
When you serve your spouse with the divorce documents, you should make sure you have evidence that the delivery was successful.
For example, you are allowed to send the papers by mail but in return, you must get a receipt confirming that your spouse accepted the delivery.
The other way is to serve your spouse personally, but you can’t do it by yourself. You may hire the sheriff or private process server. Note that these services are not free.
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Documents You Need to Get a Divorce in South Dakota
Every divorce case is unique, and you may need some special documents according to your certain situation, but below are some basic forms which are necessary for almost each uncontested divorce in South Dakota:
- UJS 310 - Complaint (without Minor Children), or UJS 312 - Complaint with Minor Children.
- UJS 304 A - Financial Affidavit.
- UJS 311 - Summons.
- UJS 324 - Stipulation and Settlement Agreement (without Children), or UJS 325 - Stipulation and Settlement Agreement (with Minor Children).
The forms which are assumed to be filed by the defendant as evidence that they were served with the divorce paperwork and want to respond are “UJS 317A - Admission of Service of Summons and Complaint” and “UJS316 Answer & Affidavit of Mailing”.
The form that finalizes the case is called “Judgment and Decree of Divorce”. It may have different codes depending on the case. The full list of forms is available on the state Judicial System website.
Online Divorce in South Dakota
Speaking of an uncontested divorce, preparation is half the battle. Although you cannot file for divorce without attending the courthouse, you can still complete the major steps online.
You can use the guidelines provided by the Unified Judicial System of South Dakota or our service can prepare your documents quickly and correctly. You do not have to learn all the legal information, laws, and rules just in order to sort out what forms need to be filled out according to your case. Fill in a short questionnaire, and we will be able to gather the unique paperwork kit, which will definitely be approved by the court. All you have to do is sign the papers.
Rules for child support and visitation in South Dakota
South Dakota has a special child support calculator to estimate the amount that needs to be paid as child support in a certain case. Typically, only the non-custodial parent has to pay child support. Nevertheless, it is assumed that the parent with whom the child lives and who is responsible for the child’s daily care contributes as well. Supporting the child is a common duty of both parents in South Dakota.
As for custody, it can be joint or split in the state of South Dakota. Joint custody means that both parents have the right to make some important decisions that affect the child’s life and spend a lot of time with them. According to the state family law, joint custody is the preferred option as it reflects the best interests of the child.
But even when split custody is committed, the non-custodial parent has the right to view the medical and school records of the child.
Parenting time can be arranged (and should be arranged) by the parents as they want. The point is, the South Dakota Visitation Guidelines provide only the minimal requirement for the parenting time schedules that can seem rather dry and not always reasonable. For example, for kids between 3 and 5 years, one overnight visit and one midweek visit are required of the non-custodial parent on alternate weekends. The law does not force you to follow the schedule, especially if your child is very attached to the other parent.
Rules for spousal support in South Dakota
Spousal support, also called alimony or spousal maintenance, is payment made from one spouse to the other in order to maintain the habitual way of life as it was prior to the divorce. Alimony can be requested by either spouse, but the court is empowered to award it only after taking into account a number of factors like the length of marriage, health condition of each party, both spouses' income and earning capacity, their contribution to the family welfare during the marriage, and others.
There are three main types of alimony that can be ordered in South Dakota:
Temporary alimony is paid until the divorce process is completed.
Permanent spousal support is usually monthly payment that should be paid until the recipient remarries or no longer requires support.
- Restorative Alimony.
The time frame of such a payment may vary. Restorative alimony is earmarked for education, training, and obtaining some new job skills. Though this type of payment may provide less than the usual standard of living, it is quite reasonable and just. The so-called rehabilitative support is designed to help the recipient learn how to earn enough to support themselves and reach the desired level.
Division of property in South Dakota
South Dakota is an equitable distribution state, which means that property must be divided equitably and fairly. Meanwhile, "equitable" doesn’t mean "equal", so the proportions can actually vary.
When dividing property, the court must consider numerous factors and conditions. However, if you decide to write a Stipulation, property division turns out to be a main responsibility of both parties.
Anyway, you should can allocate between separate and marital property.
- Separate property includes all that each spouse had prior to marriage, and some valuable gifts or inheritances given to them personally.
- Marital property refers to all the real estate, assets, income, and benefits earned or acquired during the marriage regardless in whose name they are.
Marital property refers to all the real estate, assets, income, and benefits earned or acquired during the marriage regardless in whose name they are.
Division of Debt in South Dakota
Debts are considered to be part of property in South Dakota, so they are also subject to equitable division, and you probably won’t pay the debt you didn’t cause. But if you and your spouse decide to file for an uncontested divorce, you’d better regulate the property and debt issues independently by working on your written agreement (Settlement Agreement and Stipulation).
Divorce Mediation in South Dakota
Divorce mediation is aimed to help the spouses to negotiate during the divorce in order to reach a constructive agreement about all the significant terms of their post-divorce life.
According to the state laws, South Dakota courts should order mediation for every divorce case if there are some misunderstanding and disputes of child-related issues (parenting time, custody, child support).
During the session, the neutral qualified mediator guides the spouses through their divorce, helping to compromise and understand each other. Mediation is half a therapy and half a legal support, and the mediator is not allowed to give legal advice or order anything.
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How to Divorce a Missing Spouse in South Dakota
Though serving your spouse with the divorce paperwork is considered to be a mandatory step of the divorce proceeding, there is no need to worry if you fail. No one can force you to stay married. Even if you have no idea where your spouse is, you still can get a divorce.
This divorce option is known as Service by Publication.
After the unsuccessful attempts to locate the spouse in order to deliver the documents, you should get an Affidavit of Diligent Search form and submit it to the court. This paper must show the court all your efforts of searching for your missing spouse and prove that they really cannot be found.
If the court approves this Affidavit, you should request a Service by Publication. It implies that with the court’s permission, you publish a notice about your divorce case in a local newspaper of the county that is most likely to be your spouse's place of residence. The notice should be placed once a week for 4 weeks. Afterwards, if there is still no answer, you can seek for a default judgment, and the divorce will be granted without your spouse’s participation.
Default Divorce in South Dakota
A default judgment can take place both when the Defendant (the non-filing spouse) cannot be located (as mentioned above), and when they are served with the forms but still refuses to respond to the divorce Petition. In the second case, after 61 days after the documents were delivered, the Petitioner can file an Affidavit for Default.
If the default divorce occurs, the filing spouse can request the court of everything they specified in the Petition. Issues such as alimony, child custody, and support, property division will be resolved in the Petitioner’s favor.
Annulment of Marriage in South Dakota
The difference between divorce and annulment is subtle and significant at the same time. Whiles a divorce terminates the valid marriage, an annulment just cancels the marriage and considers it to be void and illegal from the very beginning.
However, the non-recognition of an annulled marriage doesn’t affect the kids of this union. The children born during the marriage are legitimate, and custody and support can be awarded as in the case of regular divorce.
In South Dakota, a marriage can only be annulled on the following grounds:
- Underage marriage.
- Duress (one of the spouses was forced to the marriage).
- Fraud (the consent to the marriage was obtained by lies).
- Mental incapacity or insanity of the spouse.
Legal Separation in South Dakota
Legal separation is another way to end your marriage in South Dakota. The whole procedure of legal separation is quite similar to a divorce. You file the Complaint and Summons, and you can resolve issues such as child custody, support, and alimony. You can also split your marital property as well, and you should sign a separation agreement with your spouse.
The main difference is that the spouses officially remain married and are not allowed to remarry.
The point is, there may be different reasons why people don't want to be officially divorced even when they live separate and apart for a long time - from religious views to some special insurance benefits and so on. Furthermore, legal separation can be a reasonable option if you don't meet the state residency requirements for divorce now, but want to separate as soon as possible. In order to file for legal separation, you must currently reside in the state and remain there until the action finalizes.
Same-Sex Divorce in South Dakota
Same-sex marriage and divorce were recognized in the state of South Dakota since the Supreme Court decision in June 2015. The governor of South Dakota was one of the first governors who expressed their intention to comply with this ruling.
Nowadays, same-sex divorce is governed by the same laws and rules as any dissolution case, regardless of whether the spouses got married prior 2015 or later, and where they got married. The South Dakota residency requirements for divorce are equal for all citizens.
Military Divorce in South Dakota
Speaking of uncontested divorce in South Dakota, there are some special features if one of the spouses is a military member.
First, you can file for divorce in South Dakota even if you are not a resident of the state. It is enough if you or your spouse is stationed there.
Second, the divorce proceedings can be postponed for the whole period of military member spouse’s active duty plus an additional 60 days after that. This way, the federal law (Soldiers and Sailors Civil Relief Act) protects military members from a default judgment against them.
Other filing rules are the same as for civil divorce, and the military spouse must be personally served with the divorce paperwork.
As for alimony and child support, these issues are regulated by Uniformed Services Former Spouses’ Protection Act in case of military divorce. According to this law, the military pension can be divided along with the other property only if the spouses were married for more than 10 years (and the spouse was an active duty military during these years). Furthermore, child support or alimony amount cannot be over 60% of the military member’s pay.
How to Divorce a Spouse in Jail in South Dakota
As the South Dakota usual template of an uncontested divorce doesn’t include any mandatory court hearing, to divorce an incarcerated person is not a big issue.
You should serve your inmate spouse with a sheriff’s service, and wait for a response. If they refuse to answer, the divorce can be granted by default.
If the spouse is convicted of a felony, it can be considered as a fault ground for divorce in South Dakota, but you should ask for legal advice for such a case.
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South Dakota Divorce Filing Fee
Court filing fees are in addition to the cost of using DivorceFiller.com. This cost may vary by county. Please check with your local courthouse to determine the exact amount.
Can a Filing Fee Be Waived?
If you can’t afford to pay the filing fee, the court may take it upon itself, but you should present evidence of your financial hardship.
In South Dakota, there is a special Motion & Order to Waive Filing Fee & Service of Process Fee. This form is related to your Financial Affidavit and explains your current financial condition. With this form you can ask the court to waive the fee.
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