SOUTH DAKOTA DIVORCE BASICS AND OVERVIEW
|This is a divorce reference guide to understanding divorce in South Dakota. Each state has its own requirements, laws, and documentation, so we decided to gather it all in one location to make it easy and quick for you to find the information you need before, during and after your divorce.|
- Time Frame: In South Dakota, a 60-day waiting period from the time the divorce begins until the court has jurisdiction to grant a divorce is mandatory.
- Where to File: Circuit Court. "State of South Dakota, County of _____________, In the Circuit Court, __________ Judicial District."
- Statute Statutes: South Dakota Codified Laws.
- Name of Action: Complaint for Divorce.
- Name of Parties: Plaintiff, the filing spouse, and defendant, the other spouse.
- No-Fault or Fault and No-Fault Only: No-fault and fault.
- Primary Documents Filed: Complaint for Divorce and Decree of Divorce.
- Physical Separation Required: No.
- Separation Time to File: None.
- Legal Separation Permitted: The grounds for a legal separation are the same as the grounds for a divorce.
- Grounds: No-Fault, which means irreconcilable differences; and Fault, which includes adultery, defined voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married; extreme cruelty, defined as the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage; willful desertion, defined as the voluntary separation of one of the married parties from the other with intent to desert; willful neglect; habitual intemperance; and conviction of felony.
- Residency Requirement: The plaintiff must be a resident of South Dakota and remain a resident until a divorce decree is entered. A divorce may be filed in either the county where the plaintiff or the defendant lives. The 60-day waiting period transpires between the initial service of the Compliant and the divorce.
- Mediation Required: There is no mandatory mediation in South Dakota.
- Counseling Required: The court can delay the divorce proceeding for up to 30 days if there is a reasonable possibility of reconciliation. This is done so the spouses have time to seek counseling. After the 30 days, either party may move for the divorce, and the court may enter its judgment. During the 30 days, the court may enter an order for the support and maintenance of the parties.
- Parenting Classes Required: Parenting classes are required in some counties. These classes may be required for all parents who are divorcing. The classes range in length and parents receive a Certificate of Completion for the court. The goal of the classes is to educate the parents on best practices for co-parenting during and after divorce.
- Filing Fee: $95. (See SD Filing Fee Waiver Form)
- Where to File for Child Support: The South Dakota Division of Child Support helps collect past due child support and enforce the payment of child support.
- Child Support Guidelines Model: South Dakota uses the Income Shares Model, which estimates the amount of support that would have been available if the parents where still married. This estimated amount is then divided proportionally to the parents according to each parent's income. This is easy to do using the South Dakota child support worksheet. Pay records typically substantiate the estimated incomes.
Described in the South Dakota Codified Laws; Title 25, Chapters 25-3-11, 25-4-38, 25-4-45, 25-7-6.2 to 25-7-6.12, and 25-7A-9, child support is calculated using the Income Shares Model, where the amount is based on the noncustodial parent's share and payable to the custodial parent. The courts may order one or both parents to pay child support unless one of a number of factors -- the financial condition of either parent, or any income tax consequences, or special needs of the child, or other income besides the parents, or custody and visitation decisions -- convinces the judge otherwise. Courts typically calculate child support using the South Dakota Child Support Worksheet, which generates an appropriate support obligation based on each spouse's income and other factors, such as taxes paid and retirement contributions. In this routine, the parent with the great income pays a larger share of the child support and vice versa. After computing support, the courts and parents normally look at any appropriate deviation factors, such as childcare, extraordinary medical expenses, and private school tuition. Generally, the obligation ends at 18 years of age unless the child is still in school, or his or her 19th birthday, whichever occurs first.
- Property Division: South Dakota is an equitable distribution state, and all property is subject to distribution. All marital property is divided in an equitable fashion unless agreed otherwise by the spouses.
- Appreciation of Separate Property: The appreciation of all property is marital.
- Attendance at Hearing: No, as long as the defendant's answer is filed within 30 days of service and the parties file a stipulation and settlement agreement and an affidavit of plaintiff and defendant as to the jurisdiction and grounds for divorce. Without these filings, a hearing must be held.
- Fault Considered in Property Division: No.
- Waiting period after Divorce for Remarriage: None.
- Ways to Serve Spouse: Personal service by hand delivery by sheriff or someone designated to serve process or substituted service by mail.
- Divorce Records: The South Dakota Department of Health
The South Dakota Department of Health, an office within the Division of Administration, maintains Divorce Certificates and other vital records for the state and issues certified copies of these records. The South Dakota Vital Records Office in the Department of Health issues either an informational or a certified copy of a vital record. By state law, vital records filed in the state of South Dakota are not open for public inspection. The South Dakota Department of Health is located at 207 East Missouri Avenue, Suite 1A, Pierre, South Dakota 57501. A certified copy of a Divorce Certificate is ideal to show proof that a divorce took place and was finalized through the court, but it will not include the settlement terms of the divorce. A copy of a Final Decree of Divorce will include the settlement terms and this can be obtained through the county Clerk of the courthouse the divorce was filed. If you are not sure what county a divorce took place, a Divorce Certificate may have to be retrieved from archives from the South Dakota Vital Records Office before the Final Decree of Divorce, because the Divorce Certificate will include the filing county.