How to file for divorce in South Dakota

Tags: Online Divorce, South Dakota

Image: Joecho / iStock

By Valerie Keene

Published Jul 27, 2022

To file for divorce in South Dakota:

  • The plaintiff must be a resident of the state when the divorce action is started and the residence must be maintained until the final divorce decree is entered.

  • You can file for divorce in the county where either your spouse or you reside and the defendant can have the case transferred to his/her county.

  • You must wait for a period of 60 days from the date of filing for divorce before the divorce is granted in both a contested, as well as an uncontested divorce.

Grounds for divorce

No-Fault Divorce

  • This is when both parties claim that there are irreconcilable differences between the two.

Fault-Based Divorce

  • Extreme Cruelty: When there is grave injury or mental suffering inflicted by one spouse on the other.

  • Adultery: This is when the spouse has voluntary sexual relations with an individual of the opposite sex to whom he/she is not married.

  • Willful neglect.

  • Willful Desertion: Voluntary separation of one spouse from the other spouse with the intention to desert him/her.

  • Conviction of felony.

  • Habitual intemperance.

Step 1: Starting your divorce

Preparing the Documents

To start the process of divorce in South Dakota, you must fill the documents mentioned below.

Documents Needed for Filing for Divorce

  • Financial Affidavit: Must be completed by each spouse and gives information about the property and debts of the party.

  • Affidavit of Indigency: Must be filled by the plaintiff if he/she claims that they can’t afford the filing and service fees.

  • Civil Case Filing Statement: Filed separately by each spouse and identifies the party, lists the address, employer, attorney and ssn (social security number).

  • Child Support Order Filing Data Form: This form has information about the spouses and their minor children.

  • Summons and Complaint: The defendant is informed by the Summons that he/she has 30 days after the receipt to file an “answer” to the Complaint, filing which can result in a default judgment against him/her.

  • Affidavit of Service by Mail: Attests that the documents of the divorce case were mailed to the defendant properly.

  • Affidavit of Personal Service: Attests that the documents of the divorce case were served to the defendant properly.

  • Notice and Admission of Service of Summons and Complaint: This gives the defendant time of 20 days in which he/she must file the Admission of Service.

  • Answer or Answer and Counterclaim: Should be served by the defendant on the plaintiff within 30 days of receiving the Summons and Complaint and the failure to file an “answer” will result in a default judgment against the defendant.

  • Affidavit to Jurisdiction and Grounds: Confirms that the plaintiff is a resident of the state and the marriage is ending because of “irreconcilable differences”.

  • Affidavit of Default

  • Stipulation: Has details of the terms and conditions regarding property distribution, spousal support and child support (if applicable).

  • Decree of Divorce (Stipulation and Agreement): Includes the Stipulation and Agreement in the judgment and divorce decree.

  • Notice of Entry: This informs the defendant that the Judgment and Decree of Divorce have been entered by the court.

Filing Your Forms

When all the documents have been completed, make 2 copies of the same. While the original will be filed with the county court where either your spouse or you live with the filing fee, one copy will be kept with you for your records and the other copy will be served on your spouse.

The documents must be served on your spouse to inform him/her about the divorce action as soon as they have been filed with the court. Your spouse can sign an “Admission of Service” that states that he/she has received the papers. If your spouse refuses to sign this, then you can serve the papers via a process server or the sheriff of the county.

Despite your diligent efforts, if you cannot locate your spouse, you can publish the summons in a newspaper and serve your spouse. The defendant then has 30 days from the date when he/she has been served to file a formal answer with the court.

Step 3: Contested or Uncontested divorce?

Contested Divorce (High Costs)

In the case that your spouse files a formal answer and doesn’t agree to the divorce and there is a dispute on issues like division of property, child custody or child support, this is known as a contested divorce and there will be a trail.

Based on the evidence presented, including the testimony of both the spouses and other witnesses, the court will resolve the issues that were earlier disputed by both spouses.

Uncontested Divorce (Low Costs)

Usually, uncontested divorces are comparatively cheaper than contested ones and can save you the stress of going to court. Both spouses agree on all the terms of the divorce in case of an uncontested divorce. However, before you file for an uncontested divorce, the various issues must be resolved such as:

  • Distribution of property

  • Division of assets and debts

  • Alimony or spousal support

  • Child custody and/or visitation

  • Child support

  • Health and dental insurance and other incidental expenses

  • Any other disputes

If you are unable to agree on any of the above issues with your spouse, then the divorce will be contested.

Step 4: DIY vs. lawyer?

DIY divorce Papers (Slower & Least Costly)

If you plan to represent yourself, then you must complete some documents, which can be obtained online from the forms index of the South Dakota Unified Judicial System. While these forms are official, you must check with your local court to ensure that they will be accepted by the judge. Respond to all the questions correctly and thoroughly; use a computer to fill the forms, else, write it out neatly.

This will take some time and errors will occur so be sure to take your time.

The forms that you must use if you have children or if you don’t have children are different and you must fill the forms according to your situation.

To file for divorce in South Dakota, either spouse should have been domiciled in the state i.e., you should have lived in the state for a minimum of 1 day and have the intention to make it your permanent home. Also, as pro se, you are responsible to file the correct forms and file them in the correct court.

South Dakota has 17 circuit courts which oversee divorce cases and you must file your papers in the circuit court of the county where either your spouse or you live. However, if your spouse and you are separated and both of you live in different counties, you can file the divorce papers in the circuit court where either of you resides.

Online Divorce Services (Fastest & Inexpensive)

The main issue with finding free divorce papers online is that the state leaves it all on you to figure out what paperwork you need on your own.

With an online divorce service, you have more support in making sure that you are filling out the paperwork that is necessary for your particular situation.

These services are pretty simple in how they work. You will be promoted to answer questions about your situation and based on your responses, it will determine what paperwork will be need inorder to file.

Once your complete answering all the questions, your paperwork will be ready to download and you will have access to a instructions on your next steps. The top provider in the space is 3StepDivorce and you can get started for as little as 4 payments of $84 or one payment of $299.

Attorney Divorce Trial (Longer & Expensive)

The least favorite and slowest way to file a divorce is when it’s contested, and you both need to hire an attorney to protect your interests.

Your case will go to trial, where a judge will hear your case and resolve the disputes. Usually, a divorce trial is very expensive as you need to hire an attorney to represent you in court.

Step 5: The major issues

Property division

In South Dakota, the property is divided equitably since it is an “equitable distribution” state. If both spouses do not agree about the property distribution, the court will divide the property belonging to either spouse or both of them equitably, whether the title of the property belongs to the wife or the husband.

The court will consider the circumstances and equity of both spouses. When dividing the property, fault will not be considered by the court.

When dividing the property, the court will consider the following:

  • Length of marriage.

  • Contribution of each spouse to the procurement of the marital property.

  • Age and condition of health of each spouse.

  • Value of the separate property owned by each spouse.

  • Present and future earning capacity of each of the spouses.

  • Value of the property being divided and the income potential of the property.

Alimony / Spousal Support

The court may ask one spouse to pay a suitable allowance to support the other spouse for life or for a shorter period that the court feels is fair after considering the circumstances of both spouses and the court may modify its orders.

The court will consider factors like the duration of the marriage, each spouse’s financial resources, each spouse’s health condition, the financial impact of both spouses and the marital fault which caused the divorce (if any) before deciding the spousal support.

Child Custody Laws

When deciding whether the custody of the child will be joint or sole, the court will take into account the best interests of the child.

And, in making the custody decision, the court will consider marital misconduct if it is relevant to the well-being of the child, the wishes of the child based on the age and the maturity of the child and the wishes of the parents.

The gender of the parents does not play a role in the decision of the court.

Child Support

Child support in South Dakota is calculated on the Income Shares Model. And in determining child support, the court will consider each parent’s income and income is defined as:

  • Compensation that is paid for the services of an employee, whether wages, salary, bonus, commission, etc.

  • Income from self-employment including profit or loss from any business, profession or farm.

  • Payments from retirement and pension programs such as veteran or social security benefits, insurance contracts, disability payments, etc.

  • Rentals, interest, royalties, dividends or any other profit for capital asset investment.

  • Profit or loss from trade, conversion or sale of capital assets.

  • Worker’s compensation benefits.

  • Unemployment insurance benefits.

  • Benefits in place of compensation such as military pay allowances.

If the parents get income from either seasonal employment or any payments other than regular, repeated payments, such type of income will be annualized to calculate the monthly income.

If the income of the parents is not sufficient to meet the needs of the child, then the parents’ assets will be considered. And, if the parents have assets that are not related to income or life insurance, then these will be also be considered. The ability of the parents to borrow may also be used to determine their financial ability

Step 6: Finalizing your South Dakota divorce

After the documents have been filed with the court, then you must wait because, even for an uncontested divorce, South Dakota needs both the spouses to wait for a period of 60 days before the divorce is granted.

In case of an uncontested divorce, there is no court hearing required by the state and if all the paperwork is fine, once the 60-day period of waiting is over, the Decree of Divorce or Final Judgment will be signed by the judge and your divorce will become final.