South Dakota Divorce Procedures

South Dakota Divorce Procedures
 
Complete overview of South Dakota divorce laws for people considering a South Dakota divorce or filing a South Dakota divorce with issues to be resolved about child custody, child support, visitation and alimony.

South Dakota Divorce Residency Requirements

In order to file your Complaint for Divorce in South Dakota, you must make sure the Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the South Dakota residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services, and in order that each party be entitled to the entry of a decree or judgment of divorce or separate maintenance, that residence or military presence must be maintained until the decree is entered. The divorce may be filed in the county in which either spouse resides. The defendant has a legal right to have the case transferred to his or her county if desired. There is also a 60 day waiting period that must elapse after the date of filing before the divorce will be granted. (South Dakota Laws – Volume 9A – Title 25 – Chapters: 25-4-30, 25-4-30.1, and 25-4-34)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of South Dakota. It is most common that people file for a divorce in the county in which they live. If you are unsure of whether or not you meet the South Dakota residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

South Dakota Grounds for Divorce

The Complaint for Divorce is the initial document filed with the South Dakota court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

Divorces may be granted by the court for any of the following reasons:

No-Fault Based Grounds:
(1) Irreconcilable differences.  

Fault Based Grounds:
(1) Adultery; 2) Extreme cruelty; (3) Willful desertion; (4) Willful neglect; (5) Habitual intemperance; (6) Conviction of felony;

Extreme cruelty is defined as the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

Willful desertion is defined as the voluntary separation of one of the married parties from the other with intent to desert.

Adultery is defined as the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married. (South Dakota Laws – Volume 9A – Title 25 – Chapters: 25-4-2, 25-4-17, 25-4-18)

Every divorce case that is filed in the state of South Dakota must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

South Dakota Uncontested Divorce

This information is an overview of the uncontested South Dakota divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in South Dakota.

To file for a divorce in South Dakota, a person must be a resident of the state at the time of the filing and must remain a resident of the state until the divorce is final. The divorce may be filed in the county where either spouse resides, but a defendent has the right to have it transferred to the county of his or her residence if he or she desires. There is no other residential requirement. The same requirements apply to military personnel stationed in the state.

There is a 60-day waiting period after the filing of the action before a hearing will be held or a divorce granted.

Grounds for divorce are No-Fault, which means “[i]rreconcilable differences which have caused the irretrievable breakdown of the marriage”; and general grounds of 1) adultery, 2) conviction of a felony, 3) willful desertion, 4) cruel and inhuman treatment, 5) willful neglect and 6) habitual intemperance.

Actions are filed in the Circuit Court of the county of residence.

The party filing the action is called the Plaintiff; the party responding is called the Defendant.

When both spouses agree to use irreconcilable differences, South Dakota courts may grant the divorce based solely on affidavits that establish the required residency and grounds. Personal appearances by either spouse are not required.

In South Dakota, pro se Plaintiffs must complete a checklist stating that he or she has filed all the necessary forms, and the list becomes part of the divorce paperwork filed with the Court Clerk.

To file for a divorce, the Plaintiff must complete the following forms:

> A Summons without Children, UJS 309, and a Complaint without Children, UJS 310; or

> A Summons with Children, UJS 311, and a Complaint with Children, UJS 312.

The Summons informs the Plaintiff that he or she has 30 days after its receipt to answer the Complaint and that failure to do so may result in a default judgment against him or her. The summons also imposes a temporary restraining order against the dissipation of marital assets, restrains the parties “from molesting or disturbing the peace” of each other, and in the case of children, enjoins either of them from removing children from the state. The complaint specifies whether the action is sought on grounds of irreconcilable differences, which will not likely be contested, or fault grounds, which will likely be contested.

If the Defendant agrees, he or she can sign a Notice and Admission of Service of Summons and Complaint, UJS 315, which is returned to the Plaintiff, who files it with the Clerk of Courts as part of the divorce papers. If he or she refuses to sign the Notice and Admission of Service of Summons and Complaint, the Plaintiff must have the Summons and Complaint served on the Defendant. This cannot be done by the Plaintiff. Normally service of process is completed by the sheriff or professional process server, who completes a notarized Affidavit of Personal Service, UJS 314, which is returned to the Plaintiff and becomes part of the case papers. Any other case papers other than the Summons and the Complaint may be mailed to the Defendant, after which the Plaintiff must complete a notarized Affidavit of Service by Mail, UJS 313, which become part of the divorce papers.

Each spouse completes a Financial Affidavit, form UJS 304, which provides the court with detailed information about the party’s property and debts, and, if applicable, a Child Support Filing Data form, UJS/DSS 89.

The parties also file a Civil Case Filing Statement, UJS 232, with identifies the parties.

The Plaintiff must also file an Affidavit of Non-Military Status, UJS 306, which attests to the fact that the Defendant is not a member of the military and hence enjoys no protections under the terms of the Servicemembers’ Civil Relief Act.

If the Defendant lives outside the state or cannot or will not accept the Summons and Complaint, the Plaintiff, having made a diligent effort to locate and serve the missing spouse, may petition the court for permission to serve the party by publication of a notice of the action in a newspaper. This notice is published four times, after which the Defendant is considered served.

The Defendant may choose to file an Answer (With or Without Children), UJS 318, in which he or she admits, denies, partially admits or partially denies, or claims insufficient information to answer the allegations in the Complaint. Or he or she may filed an Answer and Counterclaim Without Minor Children, form UJS 316, or an Answer and Counterclaim With Minor Children, form UJS 317, depending upon his or her situation. The Answer and Counterclaim tells the court that the Defendant wants the divorce.

Failure to answer or file a counterclaim may result in the court granting everything the Plaintiff requests by default.

When both spouses agree to end the marriage, the courts may grant the divorce based solely on affidavits that establish the required residency and grounds of irreconcilable differences. Personal appearances by either spouse are not required. The spouses must sign a notarized Affidavit of Plaintiff and Defendant As to Jurisdiction and Grounds for Divorce, form UJS 319, as well as the following:

> A Stipulation and Settlement Agreement (Without Children), form 324; or

> A Stipulation and Settlement Agreement (With Children), form 325.

The Stipulation and Settlement Agreement spells out the terms and conditions of the division and distribution of property and spousal support, if any, and, if applicable, child support.

If the couple desire to have the court incorporate the Stipulation and Settlement Agreement into the judgment and Decree of Divorce, they must prepare a Judgment and Decree of Divorce (Stipulation and Agreement), form UJS 326, which is signed by the judge.

After 60 days have passed from the delivery of the Summons and Complaint without response by the Defendant, the Plaintiff may file an Affidavit of Default, UJS 320, as well as a Motion for Default Judgment. A copy of the Affidavit of Default as well as a Notice of Intent to Take Default Judgment, UJS 321, is mailed to the Defendant. The Notice of Intent to Take Default Judgment puts the Defendant on notice that the court action will proceed without him or her. If this happens, the court hands down a Decree of Divorce, form UJS 322.

The Plaintiff must also file a Notice of Entry of Decree of Divorce, form UJS 327, which informs the other party that a decree of divorce has been entered.

South Dakota Simplified Divorce Procedures

If both spouses consent to the use of “irreconcilable differences” as the grounds for divorce, the court may grant the divorce based entirely on affidavits of the spouses which establish the required residency and grounds for the divorce. In such cases, a personal appearance in court by either of the spouses will not generally be required. [South Dakota Codified Laws; Title 25, Chapter 25-4-17.3].

Each state has its own unique filing procedure. When filing for divorce in South Dakota, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the South Dakota Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the South Dakota Laws and the filing requirements.

South Dakota Property Division Factors

In South Dakota, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Decree of Divorce.

South Dakota is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

The following factors will be considered by the court when making a property award upon divorce; the contribution each spouse had to the acquisition of the marital property; the value of each spouses separate property; the amount of time the spouse have been married; the age and health condition of each spouse; the current and future earning capacity of each spouse; and the value of the property being distribution as well as the income potential of that property.

Fault shall not be taken into account with regard to the awarding of property, except as it may be relevant to the acquisition of property during the marriage. (South Dakota Laws – Volume 9A – Title 25 – Chapters: 25-4-44, 25-4-45)

Since South Dakota is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

South Dakota Spousal Support/Maintenance/Alimony Factors

In South Dakota the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Circuit Court will order support from one spouse to the other on a case-by-case basis as follows:

The may order one party to make such suitable allowance to the other party for support on a permanent or temporary arrangement. The factors the court shall consider when establishing a support award are as follows; 1. the duration of the marriage; 2. the financial repercussions of each spouse; 3. the financial resources of each spouse; 4. the age of the spouses; 5. the health condition of the spouses; 6. the marital fault that caused the divorce if any.

The state enforcement office shall enforce the obligation that is paid to a spouse or former spouse who is living with his or her child or children, but only if a support obligation has been established for the spouse and the child support obligation is also being enforced. (South Dakota Laws – Volume 9A – Title 25 – Chapters: 25-4-42, 25-4-44, 25-4-45).

South Dakota Child Custody Factors

In South Dakota, a visitation agreement other than the standard visitation guidelines shall be in writing, signed by both parties and filed with the court. Any agreed plan, other than the standard plan, shall be approved by court order and replace the standard guidelines or any plan previously filed.

The court will make every effort to make a custody award that is best for the children. In making the award, the court will consider the following;

marital misconduct only if it is relevant to the further well being of the child;

>the child wishes depending on age and maturity;

>and the expressed desires of the parents.

The court will not discriminate based on the parents gender. (South Dakota Laws – Volume 9A – Title 25 – Chapters: 25-3-11, 25-4-25, 25-4-45.1, 25-5-7).

In South Dakota, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

South Dakota Child Support Factors

Either or both parents may be ordered to provide child support. There is an official child support obligation schedule set forth in the statute. Deviation from the official schedule may be based on a consideration of the following factors: (1) the financial condition of either parent that would make application of the schedule inequitable; (2) income tax consequences; (3) any special needs of the child; (4) income from other persons; (5) the effect of custody and visitation provisions; (6) childcare expenses necessary to obtain employment, education, or training; (7) agreements between the parents which provide other forms of support for the direct benefit of the child; (8) a voluntary reduction in the income of either parent; and (9) any other support obligations of a parent. The support payments may be ordered to be paid through the court clerk. Wage withholding orders may also be ordered. [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.]

South Dakota child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate South Dakota child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate South Dakota child support deviation factors that may be applicable to the situation.

South Dakota Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted if the child’s parents are divorced or legally separated or if an action for divorce or separate maintenance has been commenced by one of the child’s parents, or if the grandparent’s child has died. The court must find that the visitation is in the child’s best interest. Title 25, Chapter 4, Section 25-4-52 (S.D.C.L. §25-4-52 et seq.). 25-4-45

When Adoption Occurs: Visitation rights terminate upon adoption unless the adoption is by a stepparent or grandparent.

Child Custody Statutes: Only statutory reference is that custody is to be determined “as may seem necessary and proper.” S.D.C.L. §25-4-45.

Parents May Choose: Yes

South Dakota Military Divorce Laws

A South Dakota military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From South Dakota Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local South Dakota court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a South Dakota court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in South Dakota
- You or your spouse must be stationed in South Dakota

Grounds for South Dakota Military Divorce

The grounds for a military divorce in South Dakota are the same as a civilian divorce.

Dividing the Property

Along with the normal South Dakota property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In South Dakota, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal South Dakota child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

South Dakota Child Support Guidelines

The South Dakota child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate South Dakota child support order.

South Dakota Child Support Guidelines

Income Share Model *: YES
Percent of Income Model *: NO
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: YES
Secondary Education Support: NO
UIFSA: YES

* The Income Shares Model: South Dakota child support is calculated by estimating the amount of support that would have been available to the child(ren) if the family had remained intact. This estimated amount is then divided proportionally to the parents according to each parent’s income. This is easily done by using the South Dakota child support worksheet and the estimated incomes are typically substantiated by past pay stubs or w-2s.

For example: If the father has a higher income than the mother, he would then be responsible for the greater portion of the child support obligation. Conversely, if the father has a lower income than the mother, he would then be responsible for the smaller portion of the child support obligation.

As a reminder, the child support obligation can manifest itself differently between a custodial and a noncustodial parent.

For example: It is not common for a custodial parent to be paying support to a non-custodial parent.

South Dakota Child Support Definitions

Determination of parents’ monthly net income – Sources of income.

The monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:

(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus or otherwise designated;

(2) Self-employment income including gain, profit or loss from a business, farm or profession;

(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments or insurance contracts;

(4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;

(5) Gain or loss from the sale, trade or conversion of capital assets;

(6) Unemployment insurance benefits; and

(7) Worker’s compensation benefits. If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a
monthly average income.

Rebuttable presumption of employment at minimum wage.

Except in cases of physical or mental disability, it shall be presumed for the purposes of determination of child support that a parent is capable of being employed at the minimum wage and his child support obligation shall be computed at a rate not less than full-time employment at the state minimum wage. Evidence to rebut this presumption may be presented by either parent.

Assets considered when income insufficient.
If a child’s needs are not being met through the income of the parents, assets shall be considered. If the parents have savings, life insurance or other assets in amounts unrelated to income, these holdings shall be considered. The parents’ ability to borrow may be used to determine financial ability.

Profits or losses shown on federal income tax schedules as gross income – Court allowance of deduction.

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which he is associated, except that the court may allow or disallow deductions for federal income taxation purposes which do not require the expenditure of cash, including, but not limited to, depreciation or depletion allowances, and may further consider the extent to which household expenses, automobile expenses, and related items are deductible or partially deductible for income tax purposes. In the event a court disallows depreciation, it may consider necessary capital expenditures which enhance the parent’s current income for child support purposes.

Allowable deductions from monthly gross income.

Deductions from monthly gross income shall be allowed as follows:

(1) Income taxes withheld figured on the basis of two dependent exemptions for a single taxpayer paid monthly rather than actual amount withheld;

(2) Estimated income taxes payable, prorated monthly;

Abatement of portion of child support.

Unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order an abatement of not less than thirty- eight percent nor more than sixty-six percent of the child support if:

(1) A child spends ten or more days in a month with the obligor;

(2) The number of days of visitation and the abatement percentage or amount are specified in the court order; and

(3) The visitation is actually exercised. The court shall allow the abatement to the obligor in the month in which the visitation is exercised, unless otherwise ordered.

Allocation of travel costs by court.

If travel costs are substantial due to the distance between the parents, the court may order the allocation of such costs, taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.

Insurance – Computation of costs – Apportioned between parents.

The court may enter an order for health and dental insurance coverage. Medical insurance shall be provided for the benefit of the minor child whenever practical. The cost of the insurance attributable to the child shall be determined by dividing the out-of-pocket cost of the insurance to the parent by the number of individuals insured thereunder. However, if information is provided at the time of hearing regarding the actual additional costs for the child’s share of the insurance, that figure shall be used. The cost so computed shall be apportioned between the parents on the basis of income or income imputed. If one parent pays the entire amount, that parent shall either be reimbursed by the other parent for that parent’s portion of the payment or shall receive a credit against his or her support obligation,
whichever is appropriate. Any additional, reasonable medical costs, including optometric, dental or orthodontic, counseling or other health care costs for each minor child which exceed two hundred fifty dollars in any year and are not covered by insurance, shall be apportioned between the parents in proportion to the support obligation of each parent.

Order allocating child care expenses.

The court may enter an order allocating the reasonable child care expenses for the child, which are due to employment of either parent, job search of either parent, or the training or education of either parent necessary to obtain a job or enhance earning potential. The court may consider whether the federal child care tax credit for such minor child is available as a benefit to the custodial parent. If the federal child care tax credit is available to the custodial parent, it shall be calculated at twenty- five percent of the eligible expense.

South Dakota Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the South Dakota Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
State of South Dakota, County of ____________, In the Circuit Court, __________ Judicial District

The proper name of the court in which a Divorce is filed in the state of South Dakota. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the South Dakota Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Findings of Fact, Conclusions of Law, and Decree of Divorce

The title and name of the legal document that will finalize the South Dakota Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
Office of the Clerk of the County Circuit Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

The grounds for legal separation (separate maintenance) in South Dakota are the same as for divorce. The spouse filing for legal separation must be a resident of South Dakota or a member of the Armed Forces stationed in South Dakota at the time of the filing and must remain a resident until the legal separation is final. [South Dakota Codified Laws; Title 25, Chapters 25-4-17.2 and 25-4-40].

Property Distribution:
Equitable Distribution

The applicable South Dakota law that will dictate how property and debt is to be divided upon Divorce.

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