In this guide, we’ll address your burning questions – including some you didn’t even think to ask.
So if you want to make sure you have a lay of the land (and avoid the pitfalls), we’ve got you covered.
Let’s get started.
You can either file a no-fault or a fault-based divorce in South Dakota.
To file a no-fault divorce, you only need to cite irreconcilable differences. No other explanation is necessary. When both spouses agree to this, the court may grant a divorce based entirely on affidavits of the spouses, and no court appearance is required in most cases.
Fault-based grounds set a higher bar which must be substantiated with evidence of the specific reason for the filing.
South Dakota allows fault-based divorce based on:
Although the standard of proof is higher, some people choose to go through a fault-based divorce to give them additional leverage when attempting to settle the details of their case.
Legal separation requires a lot more than simply moving out of the home where you live with your spouse. Married people sometimes choose legal separation instead of divorce to see if they can take a break, but still work things out between them.
Others choose legal separation for religious reasons, because divorce may be a conflict depending on their spiritual beliefs. Also, a legal separation may be a way to let a spouse keep health insurance and can provide tax benefits that only married couples can enjoy.
In some cases, if a noncitizen gets a divorce, they may be deported. But with a legal separation, they can stay in the country even if they don’t continue to live with their spouse.
Legal separation creates a binding agreement that does require that child custody, alimony, a division of assets, and other major concerns are worked out. But the couple remains married.
However, in South Dakota, there is no such thing as legal separation. But there is a legal mechanism called separate maintenance. It is essentially the same thing as legal separation, but with a different label.
An annulment is an equivalent as if a valid marriage never existed (a void marriage) or a marriage is considered invalid because legal standards were not met (a voidable marriage).
You must meet specific grounds for an annulment in South Dakota. Those grounds include:
Even though a marriage can be annulled, a judge can still rule on alimony, child support and visitation, a division of property, and other issues.
You have several ways you can get a divorce in South Dakota.
Do-It-Yourself divorce. This is known as an uncontested divorce or simplified divorce. If you and your spouse can agree on all the issues in advance, you can file paperwork with the court stating this fact, and you will usually be granted a divorce in a short amount of time, the least amount of emotional stress, and the lowest possible costs.
In most cases, you may be able to go through the entire process without appearing in front of a judge.
This is similar to a DIY divorce, except that you rely a lot more on pre-printed forms and online services or attorneys to help you complete the required paperwork.
You can save a fair amount of time and money, but you still need to be diligent when going this route.
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In mediation, you meet with a neutral third party who helps you work through the areas of disagreement you have, such as property division, child custody and visitation, and related issues.
When you reach an agreement, you draw up a proposal and submit it to the court for approval. Although it may take several months, this is still a quicker, cheaper, and less contentious route than going through a full-blown trial.
This is an option for couples who still have a fair amount of cooperation and trust between them. Any disagreements are resolved respectfully and amicably using attorneys who are specially trained in collaborative law.
Aside from being less costly than some other forms of divorce, this process also leaves decisions with the couple, and not a judge. If collaboration fails, you can move forward with other types of divorce, but you will need to retain a different attorney if you do.
Litigation is a traditional approach to divorce. You and your attorneys engage with your spouse and their attorneys in an attempt to negotiate a settlement before going to trial. About 95% of all litigated divorces end this way.
When two people have tried other ways of settling their marital affairs, and there are high degrees of conflicts and outstanding issues, a trial often results. These can be long, drawn-out, and expensive with a judge who will make rulings based on applicable state law, taking control out of your hands.
Rulings decided by a judge mean you’ll have little recourse to modify the results.
You only need to be living in South Dakota at the time you file for divorce. There are no minimum residency requirements other than this.
After you gather your information, you’ll need to decide if you’re pursuing a contested or uncontested divorce. Working out issues in advance with your spouse is the quickest and cheapest way to go.
If needed, retain an attorney who will help you complete your paperwork which will then be filed at your local courthouse, along with a filing fee.
After you file, you’ll need to officially notify your spouse by having paperwork served on them. You can hire a sheriff’s deputy, a process server, or have a private party complete the task. They will complete a proof of service form and submit it to the court.
If you initiate the divorce, you are the plaintiff. If you are receiving the complaint, you are the defendant.
A defendant has 20 days to respond to the complaint, otherwise, a plaintiff can seek a summary judgment.
Overall, there is a 60-day waiting period before a divorce can be finalized. If you and your spouse agree on an uncontested divorce, a judge will review your settlement agreement and finalize your divorce decree shortly after the waiting period ends.
If you can’t reach an agreement, you’ll need to either negotiate with your spouse or go to trial where a judge will make decisions on a division of assets, child custody and support, alimony, and other issues before rendering a final decision.
Yes. You always have that option and it may be a good solution in South Dakota when you and your spouse can agree on all the issues ahead of time.
You can start the process online by working with a firm that will help you complete initial paperwork or with an attorney who can assist you via email.
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But once the paperwork is complete, you must file in person at the courthouse serving your jurisdiction.
After you file with the court, one of the ways to complete proof of service is by mail. For this to be valid, the defendant must sign and return a Notice and Admission of Service of Summons within 20 days.
If a spouse wants to divorce you, there is no way to stop the process.
However, you are free to contest the terms of the divorce. If you disagree on how assets are divided, alimony, child custody, or other issues, you can attempt to negotiate more favorable terms or go to trial to argue for your rights.
There is no residential requirement in South Dakota, other than you must be a resident of the state when the case is filed, and you must remain a resident of the state until the divorce is final.
After you serve papers on your spouse, they have 20 days to file a response, or you can seek a default judgment.
In all cases, there is a 60-day cooling-off period before your divorce can be finalized. At that point, a judge can review your paperwork and sign a final decree if there are no outstanding issues to be resolved.
Often, it takes a bit longer due to the availability of judges and court backlogs.
If you disagree, you’ll need to take additional time to negotiate issues. Some people choose mediation or other forms of collaborative divorce. These can add months to the process.
If you can’t reach an agreement, then you may have to litigate your case. This could take several months and possibly a year or longer before a final disposition of your case.
You can fast-track your divorce in South Dakota by following a few simple guidelines.
First, the absolute best way is to cooperate and negotiate with your spouse to come up with an agreement before you file. An uncontested divorce is the simplest and fastest route to finalizing a divorce.
If you agree to disagree, you can still expedite things by appearing on time for all your court dates, responding in a timely way to requests for information and documents, and remaining flexible in what your goals are as you work through the process.
Review South Dakota’s “Schedule of Court Costs” to see how much it will cost to complete your divorce action.
In some cases, you may be able to request a fee waiver if you can prove you meet financial limitations.
You will also need to submit a completed Financial Affidavit to explain your financial situation and request the waiver.
Bring these forms to the clerk of courts when you file for divorce.
A contested divorce means that you and your spouse do not agree on all the issues related to ending your marriage.
You will either have to negotiate out the contested issues or appear in front of a judge who will decide the issues for you during a trial.
An uncontested divorce means you both agree on all the issues in advance. If you agree, then you can go through a simplified divorce in South Dakota, and probably won’t even have to appear in front of a judge.
South Dakota permits both no-fault and fault-based divorces.
A no-fault divorce means you and your spouse have irreconcilable differences and there is no chance to get back together.
If you file a fault-based divorce, you will need to cite one of the specific grounds for divorce in South Dakota. These include:
In South Dakota, a final Decree of Divorce is the court’s final order granting you a divorce. It contains detailed information regarding the legalities of your divorce such as alimony, child support, and visitation, how assets are divided, and more.
With a Decree of Divorce, you are legally a single person and free to marry again if that’s your preference.
A proof of divorce is simply a certificate that only shows that two people got divorced, when it took place, and where. Proof of divorce certificate is often required when a person wants to get remarried.
If you are the petitioner in a divorce, and you want to stop a divorce in progress, file a request to dismiss the divorce complaint before it is finalized. This will reverse, or effectively end, the divorce action.
However, once a final divorce decree has been signed by the courts, the divorce is cannot be reversed.
In rare cases, courts in South Dakota courts will allow a couple to divide a divorce into two separate legal actions known as a bifurcated divorce. Judges sometimes grant this action when most issues can be resolved, but for one reason or another, a few outstanding issues remain.
The couple remains married, but issues such as alimony, child support, and dividing assets are resolved.
Judges are reluctant to grant bifurcated divorces because of judicial inefficiencies and because there is less incentive to finalize a divorce. There must be a compelling reason for two separate court actions.
Adultery is one of the fault-based reasons for divorce in South Dakota. A plaintiff must present evidence that adultery took place for a divorce to be granted based on this reason.
People sometimes pursue this as an option to try and gain an upper hand in a division of assets, awarding alimony or with child support and custody issues.
As you prepare your divorce forms, you will be able to choose to either restore your former name or request a court order for changing names.
Name changes are granted as part of your divorce. You may either receive a separate court order making your name change official, or have your name change recorded on the final divorce decree. Both of these documents are accepted with all US organizations and agencies as evidence of your name change.
Having a court order does not mean that your name change has taken effect yet. You need to contact all of your organizations to request that your records are updated.
It’s best to begin by updating your name with the Social Security Administration . Once complete, you can go on to change names everywhere else.
It’s time-consuming to contact each company and figure out what to send where, so we recommend using an Easy Name Change kit to cut out the 10+ hours of research and paperwork that follows.
There are a ton of resources for divorce that make big claims about what they can accomplish for you. We’ve tested a bunch of them ourselves, and most fall short of our expectations.
There are a few, however, that surpassed them.
We’re thrilled to share these resources and tools with you because we’re sure that using them will mean a better divorce experience for you.
If you’re looking for recommendations in any of the following areas, we’ve got you covered:
Looking for more great tips about divorce? Check out a few of our most popular articles.
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
