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Family Court

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 strongly encouraged to consult a lawyer. However, you are not required to do so; 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. Please visit the South Dakota Law HELP website or click here to visit the UJS Pro Se Divorce Forms Page. The court staff is available to provide you with information, not legal help. They may be able to help you understand the court process or how to do what you need. But they have been instructed to not answer questions if you are seeking advice on what to do, whether it is of a legal nature or not.

You may want to consult our website for other information. Visit the Unified Judicial System Home.

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

  • 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.
  • 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.
  • 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.
  • 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.
  • For cases involving property division, spousal support or child support, disclosure of income may also be required.
  • 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 payable to the Clerk of Court. There are additional fees for copying and/or certifying copies, or issuing subpoenas.



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