Area of Law:
Filing for divorce can be a confusing process. To begin a divorce proceeding in South Dakota, a spouse files a divorce complaint with the court’s clerk. File the complaint at the court located in the county where you or your spouse reside. The complaint will ask the court for a divorce, and state the spouse’s grounds for divorce. The spouse filing the complaint is the plaintiff and the other spouse is the defendant. In addition, after the plaintiff files the divorce complaint, the plaintiff must serve a copy of the complaint on the defendant. You can obtain a family law form at the South Dakota Unified Judicial System’s website http://www.sdjudicial.com/forms/prosedivorce.aspx.
As stated above, a South Dakota divorce complaint must state a reason, or grounds, for the divorce. Grounds for divorce in South Dakota include extreme cruelty, adultery, willful neglect or desertion, conviction of a felony, habitual intemperance, chronic mental illness or irreconcilable differences. A spouse will also state in a divorce complaint what the spouse would like the court to do regarding division of marital property and child support.
South Dakota does not have a residency requirement prior to filing for divorce. However, the spouse filing the divorce petition must be a resident in good faith, and must remain a resident of the state of South Dakota until the divorce is final. South Dakota has a mandatory waiting period of 60 days before the court will finalize the divorce. This means that if the divorce is uncontested, the divorce will take a minimum of 60 days from the date the defendant received a copy of the complaint to become final. In addition, when you file the divorce complaint, the plaintiff must pay the court a filing fee. The filing fee for a divorce complaint differs in each county in South Dakota. However, the court’s clerk will be able to give the plaintiff an accurate filing fee for the plaintiff’s county.
One of the issues that may arise during a South Dakota divorce proceeding is the division of marital assets. Marital assets are property jointly held by both spouses and acquired during the marriage. However, marital property does not include separate property. Separate property is property belonging to one spouse, owned either prior to marriage or acquired by gift or bequest during the marriage. In South Dakota, the court will decide any disagreement between the two spouses regarding the division of property and debts. Generally, the court will divide the assets equitably among the spouses, and usually will not take into consideration whether one spouse is more at fault for the divorce.
If you and your spouse can agree about the division of the marital property, consider drafting a marital settlement agreement. However, agreeing on settlement terms is often the hardest part of a divorce proceeding. Therefore, the court may recommend both spouses attend mediation to try to resolve any contested issues.