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(Divorce/Domestic Relations/Dissolution of Marriage
in
South Dakota)
In
South Dakota, a marriage can only be dissolved by death or divorce. In
limited cases, a marriage also may be annulled by an action in circuit
court. The section of the law that covers divorce and separate
maintenance is Chapter 25-4 of the
South Dakota Codified Laws, and annulments are covered at
Chapter 25-3.
The following information is not intended to be a manual or a
comprehensive instruction guide. It is
intended to be a short and simple informational statement about basic
requirements and procedures.
You are not required to have a
lawyer. You may represent yourself if you wish. Whether you retain an
attorney or not is a decision only you can make. Neither the judge nor
the clerk’s office can or will give you advice.
DIVORCE FORMS AND VISITATION ENFORCEMENT
FORMS ARE AVAILABLE ON THE UJS WEBSITE:
ujs.sd.gov.
The court staff is available to
assist you with filling out the forms, but cannot provide legal
advice. They may be able to help you understand the court process
or how to do what you need. But they have been instructed not to
answer questions if you are seeking advice on what to do, whether
it is of a legal nature or not. To serve you more effectively, they may
suggest you seek the advice of an attorney or refer you to other
resources.
You may want to consult our website for other information. Visit
ujs.sd.gov.
GROUNDS FOR DIVORCE
Unless both parties consent and agree to a divorce on the grounds of
irreconcilable differences (commonly called a no-fault divorce), then a
divorce will only be granted on the following grounds: adultery,
extreme cruelty, willful desertion, willful neglect, habitual
intemperance, or conviction of a felony.
REQUIREMENTS
1.
The person seeking the divorce or
separate maintenance must, at the time the case is started, be a
resident of South Dakota, or be stationed in this state while in the
military. That residency must be maintained until the action is
finished and the decree is entered.
2.
The action can be filed where either
party resides, but the defendant has the right to have the place of
trial changed to his/her county of residence.
3.
A divorce cannot be granted by the
court until 60 days after the completion of service of the Summons and
Complaint.
4.
If the parties are able to negotiate
and settle all issues, a written agreement (called a stipulation) can be
offered to the court for approval. If the stipulation is accepted, it
is possible they won’t have to appear at a court hearing or trial.
THE COURT PROCESS
A divorce is a civil lawsuit, and like any
other civil action, it is started by the plaintiff with the service of a
Summons and Complaint upon the defendant. Once the action is initiated,
both parties are subject to a temporary restraining order, which places
certain restrictions on both parties. These restrictions include
disposing of or concealing marital assets or removing children from the
state without written consent of the other party or the court. Both
parties are also restrained from disturbing the other party.
ISSUES TO BE DECIDED BY THE COURT IF THERE IS NO
STIPULATION
Ø
Property division. Both parties will have to provide the court
with a list of all assets and liabilities, including the value of the
property or debt.
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Child Custody. The sole criterion in the court’s decision is the
best interest of the child. The court may consider the wishes of a
child but is not bound by those wishes. There is more than one
type of custody arrangement, and custody may be modified under certain
circumstances.
Ø
Child Support. The non-custodial parent must provide financial
support for raising the child(ren). South Dakota law contains
guidelines which set forth appropriate amounts based on the combined
income of both parents. The amount of child support can also be
determined outside of court by the Department of Social Services, Office
of Child Support Enforcement. The Department of Social Services is
the central payment and disbursement center for the State of South Dakota.
Ø
Spousal Support. The court will consider if alimony or spousal
support is to be granted, using factors similar to those used when
determining a division of property. Support can be ordered payable
for life or a shorter period, and may be modified thereafter.
Ø
For cases involving property division, spousal support or child support,
disclosure of income may also be required.
Ø
Fault for the divorce is generally not taken into account when the court
distributes property or decides custody.
FILING FEES
The fees to file a divorce action or to modify child support,
alimony or visitation are determined by law. The fee for a divorce
action is $95, and the fee to modify support or visitation is $50,
payable to the Clerk of Court. There are additional fees for copying
and/or certifying copies, or issuing subpoenas.
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