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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. FORMS ARE AVAILABLE FOR DIVORCE ACTIONS IN
SOUTH DAKOTA.
See
www.sdjudicial.com and click on the forms tab.
The court staff is available to provide you with information, not
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
www.sdjudicial.com.
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
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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.
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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.
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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.
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For cases involving property division, spousal support or child support,
disclosure of income may also be required.
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Fault for the divorce is generally not taken into account when the court
distributes property or decides custody.
FILING FEES
The fee to file a divorce action is determined by law. That fee is $75,
payable to the Clerk of Court. There are additional fees for copying
and/or certifying copies, or issuing subpoenas.
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