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When a Spouse Cannot Be Found in South Dakota
When one spouse wants to call it quits but cannot find his or her missing partner, or when he or she is hiding, divorce by publication comes into play. Divorce by publication happens "only after a judge has been convinced, based on a sworn declaration, of the serving party's inability to find the Defendant after trying hard. Service by publication is commonly used in a divorce action to serve a spouse who has disappeared without a leaving a forwarding address..."
When the Respondent cannot or will not be found (and, therefore, cannot be served by sheriff or private process service, which are the preferred methods), the Petitioner must conduct what is termed a "diligent search" followed by Service by Publication.
South Dakota's Search Requirements and Process
South Dakota courts require a good faith effort by the Petitioner to prove that he or she has made a genuine search for his or her missing partner. This search may entail checking the telephone book and directory assistance; asking friends and relatives who might know the location of the missing spouse; checking the post office for any forwarding address; and exploring any other possible sources that might lead to a current address.
In order to be eligible for a "Divorce by Publication", you must complete and submit an Affidavit of Diligent Search to the court. This document clearly outlines all of the actions you have taken to locate your spouse, essentially proving to the court that your spouse absolutely can't be found.
If you actively pursue locating your spouse through the methods outlined in the Affidavit of Diligent Search, and still can't locate your spouse, then a "Divorce by Publication" is your likely method of getting a divorce.
Filing for Divorce by Publication in South Dakota
If the search is fruitless, the Petitioner, with the permission of the courts, may file an affidavit requesting permission to service by publication. With the court's permission, the Petitioner places a notice in a newspaper "in the county where the action is pending to be designated as most likely to give notice to the person to be served and for such length of time as may be deemed reasonable, not less than once a week for four successive weeks."
After publication, the missing spouse is considered served, and if or she does not respond to the notice, the Petitioner may move forward seeking a default judgment.
South Dakota Service by Publication is described in SDCL 15-6-4(g)(4), 15-9-7 to 15.9.22.
Copyright Notice: These South Dakota divorce laws above are copyrighted by Divorce Source, Inc. This abbreviated and revised version of the state laws has been compiled from applicable state laws and unauthorized reproduction in any fashion is prohibited. Violation of this copyright notice may result in immediate legal action.