South Dakota Divorce Laws
According to its Department of Health, South Dakota has recorded relatively low divorce rates in the past few years when compared to other states in the country. It averaged 2.5 divorces for every 1,000 people in 2021, which is the same rate it recorded for the previous year and the lowest since 1972. In contrast, South Dakota’s marriage rate increased from 6.0 marriages per 1,000 people in 2020 to 6.3 in 2021, showing that more people have been getting married and fewer couples have been getting divorced.
However, even with these statistics taken into account, the dissolution of a marriage can always become a reality for others, particularly for those who can no longer resolve their personal or legal disputes as a married couple. To help conflicted spouses learn more about their potential options, this article provides a detailed summary of the procedures, requirements, and guidelines involved in South Dakota’s divorce process.
Divorce vs. Annulment vs. Legal Separation in South Dakota
Divorce, annulment, and legal separation have different guidelines and requirements, even if they commonly stem from a conflicted or broken marriage. In South Dakota, a divorce is defined as the legal dissolution of a couple’s marriage, made final by a court decision.
An annulment, on the other hand, is the termination of a marriage that is considered invalid by state law. After being dissolved, the marriage is also eliminated from any records, making it seem as if it never occurred.
A marriage in South Dakota can be annulled based on the following grounds:
If either party was of “unsound mind” when the marriage happened (unless both parties decided to live together as spouses after coming to reason).
If either party was under the legal age of consent of 18, or 16 with the consent of a parent or guardian (unless both parties lived together as spouses until after they turned 18).
If either party is physically incapable of consummating the marriage.
If either party was coerced into the marriage through the use of force or fraud.
If either party still had a living spouse at the time of the marriage (unless the party with a spouse believes that the latter is dead or if they have been missing for at least five years prior to the marriage).
In most cases, a person in South Dakota can have their marriage annulled within four years from the date of their marriage. However, even if a marriage is declared null and void, the court may still issue decisions related to custody and support, just like in a regular divorce.
On the other hand, in legal separation, a married couple enters into an agreement wherein they will live apart and settle any issues regarding child custody and support obligations without terminating their marriage contract. This also means that either party cannot marry another person since they are still legally married to their spouse. Like in a divorce case, a person can file for legal separation on both fault-based and no-fault grounds.
Couples often opt for legal separation if they wish to maintain any tax or insurance benefits that they would otherwise lose if they got divorced. They can also choose to be legally separated if they think that reconciliation is still possible. A judge can delay a decision related to a separation agreement for 30 days to see if a couple can resolve their issues and reconcile within that time. If no reconciliation occurs, the agreement will be formalized.
Is South Dakota a No-Fault State When It Comes to Divorce?
As mentioned above, South Dakota recognizes both fault-based and no-fault grounds for divorce cases. Under the latter category, a person can file for divorce if their marriage has suffered a breakdown due to “irreconcilable differences.” However, a no-fault divorce may only be granted if:
Both parties agree to terminate the marriage on the basis of irreconcilable differences.
The party being served with the divorce petition fails to make a general appearance in the case.
Meanwhile, fault-based divorces are granted when one party is proven to be guilty of any of the following grounds:
They had sexual intercourse with another person while married.
They refuse to provide for their spouse in spite of their capability to do so.
They engage in routine drunkenness to the point where they cannot function normally as a person, or they cause emotional distress to their spouse.
They abandoned their spouse with the intent of ending the marriage by:
Refusing to engage in sexual intercourse on a regular basis, even if they do not have any valid physical or mental reason to do so.
Refusing to acknowledge a good faith effort to fix the marriage.
Deceiving their spouse into leaving their home.
Forcing their spouse to leave by threatening bodily harm.
Leaving their spouse permanently after leaving temporarily at first.
They inflict serious physical or mental harm and suffering on their spouse.
They are convicted of any felony during the course of the marriage.
They have been suffering from a chronic mental illness for a minimum of five years and are confined under an order of the court or the Board of Mental Illness; however, the court can choose to terminate a marriage on such grounds only at its discretion.
How to File for Divorce in South Dakota
The divorce process in South Dakota begins as soon as a spouse files a petition to have their marriage dissolved. However, a person can only file for divorce in the state if they meet either of these residency requirements:
They must be a resident of South Dakota.
They must be stationed in South Dakota as a member of the military.
In spite of these requirements, a person does not need to be living directly in the state throughout the course of the divorce proceedings in order to have their divorce granted. An individual’s residency is also a prerequisite when filing for separate maintenance.
1. Preparing and Filing the Divorce Petition
Once a person has met South Dakota’s residency requirements, they can begin preparing their divorce petition along with other required documents, which they must file with the local circuit court. They can also inquire at the court clerk’s office for any other forms that they might need.
Generally, the documents needed in a divorce include:
The complaint, which states the grounds for the divorce and the demands of the petitioner.
The summons, which will notify the petitioner’s spouse and require a response from them.
A UJS 023 form, or the Instructions for Financial Affidavit & Form, which will provide information regarding the petitioner’s overall assets and general financial situation.
The summons and the UJS 023 form must be signed before a notary public or the local clerk of court. Once the documents are complete, the petitioner must provide their spouse with a copy and then file the original forms with the circuit court. Additionally, they must keep another copy of the documents for their own records.
In case the couple has any minor children, the petitioner must also include a copy of the South Dakota Parenting Guidelines with their divorce documents. This will help both parties identify possible options regarding their respective parenting times based on their children’s age, either spouse’s address, and other potential issues.
2. Serving the Divorce Papers
After the petitioner files the divorce complaint and the necessary paperwork, their next step is to serve the papers to their spouse. As the “defendant” in the case, the spouse will be given the opportunity to respond to the petitioner’s summons and contest the grounds for the divorce.
It must be noted that under state law, the petitioner must ask another individual who is not involved in the case and is at least 18 years of age to serve the divorce papers on their behalf. This can be done via hand delivery or mail order, or by having the local sheriff’s office or a private process server deliver the documents for a fee.
Upon receiving the summons, the petitioner’s spouse will have a maximum of 30 days to respond by filing an Answer and Affidavit of Mailing Answer form, a Case Filing Statement, and their own UJS 023 form.
3. Proceeding with the Divorce
After the petitioner’s spouse responds to the divorce summons, the case will progress to a hearing that will take place after 60 days from the petition’s filing date. If the spouse has no issues with the grounds for the divorce or the demands issued by the petitioner, the divorce will be considered uncontested, and a final decision will be issued at the hearing.
On the other hand, the case will become contested if the spouse disagrees with anything the petitioner has stated in their divorce complaint. A contested divorce will likely result in multiple hearings as both parties attempt to reach a resolution regarding any issues. To resolve these disputes in a quicker and less expensive manner, the couple can attempt to negotiate with the help of a mediator.
Once a hearing has been scheduled for an uncontested divorce, both parties must prepare the required documents, which generally include the affidavit regarding the reason for divorce. A Stipulation and Settlement Agreement — or a different version if they have minor children — must also be filed. Meanwhile, due to their complexity, contested divorces will require forms not provided by the Unified Judicial System; instead, both parties must consult with attorneys regarding what they should submit.
If the spouse does not respond within 30 days after receiving the divorce summons, the case will result in a default judgment after the 60-day waiting period. In this scenario, the petitioner can proceed by preparing the following:
The Affidavit of Mailing.
The Affidavit of Military Status (to confirm whether the petitioner’s spouse is a member of the military).
The Application for Judgment, Decree of Divorce, and Notice of Hearing.
From here, the judge will simply issue a decision that follows the demands of the petitioner. The latter can bring the Judgment and Decree of Divorce (if no Stipulation and Settlement Agreement form was signed) and the Child Support Filing Data form to the hearing for additional consideration.
How Property is Divided in a South Dakota Divorce
South Dakota adheres to the rule of equitable division when dividing and distributing the marital property of a divorcing couple. Under this rule, the court will fairly divide any property that they have acquired throughout the course of their marriage based on:
Each party’s long-term needs and financial situation.
The length of their marriage.
The value of the property.
Any economic misconduct committed by either party, such as the misuse of marital assets.
Additionally, a South Dakota court may divide property that falls under either or both spouses’ ownership if it considers such a decision to be equitable. This means that even separate property that has been owned or acquired by one spouse before or during the marriage may be divided in a divorce, unlike in certain states where this is not the practice.
South Dakota Divorce FAQs
The following are some of the queries that people commonly have when attempting to navigate the divorce process.
Legal Resources for Getting a Divorce in South Dakota
State Bar of South Dakota - Access to Justice
Access to Justice is a program launched by the State Bar of South Dakota for low-income citizens, people with disabilities, and victims of sexual assault, domestic violence, or human trafficking. Its staff members can connect eligible applicants to a pro bono or modest means program that will help them find an attorney for possible legal representation.
For additional questions about the program, people can contact the organization via telephone at 605-224-7554 or through email at info@sdbar.net.
South Dakota Law Help
South Dakota Law Help is headed by a group of legal service providers handling civil law matters for low-income individuals throughout the state. Eligible individuals can register on its website to apply for legal assistance in family law matters related to divorce, including child custody, visitation rights, and guardianships. The website also offers access to articles and videos that discuss basic legal topics to help inform visitors.
East River Legal Services
East River Legal Services is a nonprofit organization that assists low-income South Dakotans in 33 counties throughout the state. Eligible individuals can approach its members for assistance and counsel in family law cases, including those that involve sensitive matters like domestic violence. The organization’s website also has a selection of online resources that users can access for information related to their specific civil law concerns. One can reach East River Legal Services through the following:
Via phone at 605-336-9230 or 800-952-3015.
Through email at info@erlservices.org.
Via fax at 605-336-6919.
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