Divorce Without a Lawyer in South Dakota
What is a divorce?
A divorce is a legal action which dissolves a marriage.
The divorce proceeding will also provide for minor children, if any, determine whether any support will be paid, and will equitably divide the couple's property and debts.
For what reason may a divorce be granted?
Under South Dakota law a divorce may be granted for any of the following grounds: adultery, extreme cruelty (including bodily injury or grievous mental suffering), willful desertion, willful neglect, habitual intemperance, conviction of a felony, chronic mental illness or irreconcilable differences. The grounds of irreconcilable differences may be used only if both parties agree to use it or if there is a default.
If there are any questions, talk to your attorney about this matter.
What is the residency requirement?
To obtain a divorce in South Dakota, no length of residency or waiting period before beginning the action is required. However, you must be a resident in good faith and once the proceeding is commenced you must remain a resident of the state until the divorce is final.
What if my spouse is in another state?
If your spouse does not reside in South Dakota, you can still begin a divorce action in South Dakota. The South Dakota court has the authority to grant a divor children who are in South Dakota and divide property located in South Dakota. The court in South Dakota generally does not have the authority to award you custody of the children that are residing in another state.
If your spouse is in another state, you can obtain child support or have child support obligations enforced through the state's attorney's office, or through the Department of Social Services, Office of Child Support Enforcement.
How do I start a divorce action?
After you hire an attorney, the attorney will prepare a summons and complaint, which must be served upon your spouse in order to start the divorce action. The complaint simply asks the court to grant a divorce and states your grounds. The complaint also states what you want the court to do about such matters as child custody, child support and visitation, alimony, and division of property and debts of the marriage.
The summons demands that your spouse answer the complaint within thirty (30) days or a default judgment may be entered against him or her after sixty (60) days. The complaint for divorce must be answered if the spouse wishes to contest the divorce, custody of the children, child support, alimony, division of property and debts, or any other statement in the complaint.
how does my spouse find out about the divorce?
The summons and complaint must be "served, " that is, personally delivered, to your spouse in order to notify him or her of the divorce action. If your spouse wishes, he or she may sign an "admission of service" which simply states that he or she received the divorce papers. This will save the expense of having the papers served. If your spouse is not agreeable to signing the admission of service, then the sheriff or a process server in the county where your spouse resides can serve the papers.
If your spouse cannot be found through diligent efforts, your attorney may "serve" your spouse by publishing a summons of the divorce in a newspaper. However, every effort should be made to locate your spouse personally before resorting to this method of service. Your spouse has thirty (30) days from the date of the service of the summons and complaint to file a formal answer in writing to the court. Filing an answer means your spouse is contesting such things as the divorce, child custody, child support, alimony or division of property or debts.
They may also file a counterclaim, which is the equivalent of a complaint.
Is there a waiting period?
In both a contested and uncontested divorce, you must wait sixty (60) days after the serving of the summons and complaint before you and your attorney can finalize the divorce.
What happens during the divorce?
The divorce may proceed in one of four ways:
- DEFAULT: This means your spouse does not answer, respond or in any way contest the divorce or other related matters such as child custody, support, alimony or division of property and debts. In other words, if your attorney hears nothing from your spouse, a divorce can be granted and you can get what you have asked for in your complaint on your testimony alone.
- STIPULATION: Where it is possible for the parties to agree on the custody of the children, division of property and debts, child support and alimony, a written agreement called a "stipulation" is prepared and signed by both parties. In such a situation, the divorce is handled like a default divorce and is granted on your testimony alone. The stipulation is presented to the court for the judge's approval and you are bound by it. Note: there is also a provision for entry of a divorce without the appearance of either party if both consent, all the terms are set forth in the stipulation, and both parties agree the grounds for the divorce is irreconcilable differences.
- CONTESTED: If your spouse has filed a formal answer and does not agree to the divorce, showing there is a dispute on such matters as custody, child support or division of property and debts, a trial will be held. The judge will decide these matters on the basis of evidence, including the testimony of both parties and other witnesses. The court will decide on all matters not previously agreed to by the parties.
- MEDIATION AND EVALUATIONS: In any custody or visitation dispute between parents, the court shall, unless deemed inappropriate, order mediation to assist the parties in developing a parenting plan. The parenting plan will address custody and/or visitation to be formulated by the parents with the assistance of a qualified mediator. The court may also direct that an evaluation be conducted to assist the court in making custody and/or visitation orders. The cost of mediation and evaluations are allocated by the court, unless agreed upon by the parties.
What about restraining orders?
A temporary restraining order is automatically in effect against both parties from the filing of a summons and complaint and service on the spouse until the final decree is entered, the complaint dismissed or it is otherwise ordered by the court. The parties are restrained from: 1) disposing of any marital assets; 2) molesting or disturbing the peace of the other party; and 3) removing any minor child of the parties from the state without written consent of the other party or a court order. Other restraining orders or protection orders may also be granted by the court upon application of either party. If your spouse disobeys a restraining order or a protection order, the court after a hearing can hold him or her in contempt of the court.
What is included in a divorce?
Final decree: If the divorce is granted, the decree dissolves the marriage and each of you is returned to the status of a single person.