Whether you live in South Dakota or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting after the divorce, the issue of alimony may also arise. If there are minor children, they will also need to resolve issues of child custody and support.
Residency and where to file
In order to file for divorce in South Dakota, the person filing (the plaintiff) must be a resident of South Dakota at the time of filing, and must continue to be a resident until the divorce is final.
You may file in the Circuit Court in the county where either party resides, however, the other party (the defendant)may have the case transferred to his or her county upon request.
There is a simplified divorce procedure that is available if both parties consent to using the no-fault grounds for divorce, and both sign affidavits verifying the grounds for divorce and that the residency requirement is met. You will also need to resolve all issues: property and debt division, support (alimony), and child custody and support. The judge may then enter a Decree of Divorce without either party appearing for a hearing.
You begin the divorce procedure by preparing a document called a Complaint for Divorce, along with various other supporting documents. For the simplified procedure, one of these documents will be a marital settlement agreement outlining the division of assets, any agreement as to support, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.
Grounds for divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. South Dakota, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds.
To get a no-fault divorce in South Dakota you need to state in the Complaint for Divorce that “the parties have irreconcilable differences.”
The fault-based grounds for divorce are: adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance (intoxication), confinement for incurable insanity for 5 years, and conviction of a felony. However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.
A divorce involves dividing property and debts between you and your spouse. Any agreement reached by you and your spouse concerning division will usually be approved by the judge. In the absence of an agreement, South Dakota divorce law leaves the matter of property and debt division to the judge’s discretion, and does not provide much in the way of guidelines. South Dakota law says that the judge “may make an equitable division” of property belonging to either or both of the parties, having “regard for equity and the circumstances of the parties.”
Alimony in South Dakota
Alimony is referred to as support in South Dakota. Any agreement you and your spouse make regarding support will be approved by the judge. If either party seeks support, and no agreement is reached, the judge will decide the matter. Unlike most states, South Dakota divorce law does not provide much in the way of guidelines. All the South Dakota law says is that the judge may award a “suitable allowance” to a party, as the judge “may deem just,” and “having regard to the circumstances of the parties.”
Child custody in South Dakota
If you and your spouse have any minor children, there will have to be a custody determination. This basically comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made.
If you and your spouse can reach an agreement on custody, it will be accepted by the judge unless it is determined not to be in the child’s best interest. If you cannot reach a custody agreement, the judge will decide the issue, according to what “may seem necessary and proper,” after considering the following factors:
- the child's temporal, mental, and moral welfare
- the preference of a child of sufficient age to form an intelligent preference, and
- the expressed desires of the parties
Child support in South Dakota
A decision must also be made about how the children will be financially supported. This almost always comes down to one party paying support to the other party. Child support is determined by taking into account the needs of the child, and each parent’s relative ability to meet those needs. This is determined by reference to the South Dakota Child Support Guidelines.
A court hearing may not be held, nor a final decree entered, until at least 60 days after the Complaint for Divorce is filed.
The wife’s maiden or former name may be restored.
Filing a divorce can be a complex process, but if you and your spouse can agree on the terms of the divorce you may be able to save time. Following these steps will help you get started with your divorce.
If you and your spouse agree on the major issues, an online divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.