Divorce in South Dakota

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South Dakota Divorce Laws

By WomansDivorce 

South Dakota residency requirements for divorce: 
The plaintiff (the person filing for divorce) must currently reside in South Dakota when the divorce is filed. Military personnel must also be stationed in SD when the divorce is filed.

How do you file for a divorce in South Dakota?
A separation or divorce may be filed with the Circuit Court in the county where either party resides. The defendant has 30 days from the date of service in which to respond to the divorce summons, and has the option of requesting a change of venue to the county where he or she resides. There is a 60 day minimum waiting period after divorce papers are served before the case can proceed.

What are the South Dakota grounds for divorce?
A divorce may be granted for any of the following grounds:

• Irreconcilable differences to the extent the court finds the marriage is unsustainable and should be dissolved;
• Adultery - as defined as voluntary sexual relations with someone other than that person's spouse;
• Extreme cruelty - as defined as grievous bodily injury or mental suffering imposed by one spouse upon the other;
• Willful desertion - as defined as the voluntary separation of one spouse from the other with intent to desert which continues for more than one year. Separation by consent or to avoid harm is not considered desertion;
• Willful neglect - as defined as the neglect of one spouse to provide the common necessities of life for the other spouse which continues for more than one year;
• Habitual intemperance - as defined as excessive alcohol consumption which continues for more than one year to the extent that the party cannot attend to business or which causes the other spouse great mental anguish;
• Conviction of felony.
• Chronic mental illness.

Can I get an annulment?
In South Dakota, a marriage may not occur between parties that are more closely related than second cousins, including relationships that arise through adoption. Such marriages are considered null and void from the beginning.

Other marriages may be nullified through an annulment which may be granted on the following grounds:

• Bigamy - If either party was married to someone else when the subsequent marriage occurred, unless the former spouse was missing and believed to be dead for at least 5 years prior to the subsequent marriage.
• Underage marriage without parental consent - An individual between 16 to 18 years old may not marry without the signed consent of a parent or legal guardian. An annulment on this ground must be commenced by the underage party within four years after he or she reaches age 18, unless the underage party willingly lived with the other party after reaching the age of consent. If the parent or guardian files for the annulment, it must be commenced before the underage party reaches the age of consent.
• Marriage entered into under duress - if the consent of either party was obtained under force, the marriage may be annulled within 4 years after the marriage, unless the injured party continued to willingly live as husband and wife.
• Marriage entered into fraudulently - If the consent of either spouse was obtained by fraud, the marriage may be annulled within 4 years after the marriage, unless the parties willingly lived together after the fraud was discovered.
• Being of unsound mind at the time of marriage - a marriage may be annulled if the court finds that one party was of unsound mind when the marriage took place, unless the parties lived willingly as husband and wife after their mental disability ended.
• Impotency - If either party is unable to consummate their marriage due to an ongoing incapacity to do so, the marriage may be nullified within 4 years after the date of the marriage if the injured party commences an annulment action.

Can I get a legal separation in South Dakota?
While there is no such thing as a "legal separation" in South Dakota, couples can file an action for separate maintenance based on the same grounds as divorce. Issues such as alimony and child support may be addressed. The court may also address child custody issues in situations where the parents are separated without a divorce.

When is alimony awarded?
The court may award alimony, either for a set period of time or until the death of the receiving party, based on the circumstances of both parties.

How are assets and debts divided in a South Dakota divorce?
The assets of each spouse prior to the marriage are considered separate property and not divisible in divorce. All assets acquired after the date of marriage are considered part of the marital estate and subject to division in divorce. If the spouses can't mutually agree on the division of marital assets and debts, a judge will attempt to reach an equitable division of the marital estate, taking into consideration the circumstances of both spouses. Marital misconduct or fault by either spouse is not a consideration in the equitable distribution of assets and debts.

Name change in South Dakota:
The court may, at its discretion or upon the request of either spouse, restore the wife to her maiden or previous name. Even though this may be included in the divorce decree, it does not mandate that the wife is required to change her name.

How is child custody decided?
If the parents are not able to agree on the custody of their minor children, the court may appoint a parenting coordinator to assist the parents in their issues. The court favors joint legal custody to ensure both parents remain active participants in the child's life.

When determining physical custody, the court will take into consideration the best interests of the child in respect to the child's mental and moral well-being, with no preference being given to either gender. The court may take into consideration the preferences of the child if the child is old enough to form a logical preference. Also relevant in determining custody is whether a parent has tried to influence a custody decision by falsely reporting that some other person has committed sexual or physical abuse, or neglect against the child or a sibling of the child. The court does not consider it in the best interest of the child to award custody to a parent who has a conviction or proven history of domestic violence.

How is child support determined in South Dakota?
Both parent's incomes shall be used to calculate the total amount of the child support obligation. This amount is then split proportionately between the parents based upon their respective incomes, and the amount of the non-custodial parent's share shall determine the level of the child support ordered.

If the parents mutually agree to a shared parenting plan in which the child resides at least 180 nights per years with each parent, and such a plan has been incorporated in the custody order, the court may set a level of child support based on both parents net income and the number of nights the child resides with each parent.

The court may also require either or both parents to carry medical coverage on their minor children if it is available at a reasonable cost, and allocate the reasonable child care expenses for the child between the parents. Wage withholding is required by law for every parent who has a child support obligation.

Child support doesn't end until a child turns 18, or until age 19 if a full-time student in a secondary school. Child support may end before the age of 18 if a child becomes emancipated due to marriage, active duty in the military, or receiving a declaration of emancipation.

Reference: 
South Dakota Codified Laws: Title 25 - Domestic Relations Chapter

Do It Yourself Divorce Options

Online Divorce - Save on legal fees! With this online divorce solution, everything will be accurately completed and you'll be given instructions on how to file your paperwork with the court system. 

Divorce Support Groups

Find Support and Recovery Meetings in your area to help you cope with separation and divorce issues. There are also support groups for children experiencing their parent's divorce as well as groups to help victims of domestic violence.

For Victims of Domestic Violence

The SD Department of Public Safety has created a victims services and shelter map, along with phone numbers, contact information, and websites for the different locations. 

SD Network Against Family Violence & Sexual Assault