The South Dakota legal process for divorce involves specific procedures, requirements, and timelines that couples must follow to legally dissolve their marriages. From filing initial papers through final decree, understanding each step of the South Dakota legal process helps ensure your divorce proceeds smoothly without costly delays or procedural errors. This comprehensive guide walks you through every stage of the divorce legal process in South Dakota, including filing requirements, service of process, court procedures, and what to expect at each phase.
The South Dakota legal process for divorce follows a structured sequence of steps governed by state law and court rules. While individual cases vary based on whether the divorce is contested or uncontested, all South Dakota divorces must complete certain fundamental procedural requirements.
Types of Divorce Cases
South Dakota recognizes two basic types of divorce proceedings that affect how the legal process unfolds:
- Uncontested divorce occurs when both spouses agree on all major issues, including grounds for divorce, property division, spousal support, child custody, and child support. This streamlined process costs less, moves faster, and causes less emotional stress than contested proceedings. After the mandatory 60-day waiting period, uncontested divorces can be finalized relatively quickly with minimal court involvement.
- Contested divorce happens when spouses cannot agree on the material terms of their divorce. These cases require extensive negotiation, potential mediation, discovery procedures, court hearings, and possibly a trial. Contested divorces take significantly longer to resolve and cost substantially more in attorney fees and court costs.
Step 1: Filing the Divorce Papers
The South Dakota legal process begins when one spouse files divorce papers with the circuit court, officially commencing the legal action.
Who Files
The person starting the case is called the plaintiff. The plaintiff must meet South Dakota's residency requirement by being a resident in good faith at the time of filing. There's no minimum residency period required before filing, making South Dakota accessible for divorce.
Required Documents for Filing
The plaintiff must prepare and file several documents to initiate a divorce:
Summons
This document formally notifies the other party that a legal action is being filed against them. The summons requires the defendant to answer the complaint within thirty days or risk default judgment. It must be legibly subscribed by the plaintiff or their attorney, directed to the defendant, and specify where and when the response must be filed.
Complaint for Divorce
This document tells the court what the case is about. The complaint must include basic information about both spouses, the marriage date, separation date (if applicable), grounds for divorce (either no-fault irreconcilable differences or one of six fault grounds), and specific requests regarding property division, child custody and support, and spousal support.
Financial documents
Many courts require initial financial disclosures showing assets, debts, income, and expenses to facilitate property division and support determinations.
Determining Proper Venue
You must decide which county is right for your case. This is called finding the right venue. Cases involving family matters like divorce are filed in circuit court in the county where either spouse resides or where the couple last lived together. South Dakota Codified Laws Section 15-5 contains statutes on the venue of actions.
Filing Fees
The court charges a filing fee when you submit divorce papers. Filing fees in South Dakota typically range from approximately $95 to $97, though this varies by county. You should check with your local courthouse for the exact amount in your jurisdiction.
In certain cases, filing fees may be waived for persons whose sole source or primary source of income is aid to dependent children, social security, county poor relief, or at a level determined by the court to be so low that the person cannot afford to pay the fees.
Step 2: Service of Process
After filing, the plaintiff must complete service of process—legally notifying the defendant about the divorce action. This critical step ensures the defendant receives proper notice and opportunity to respond.
The plaintiff is required to show that the defendant was properly served with copies of the summons and complaint. Without proper service of process, the court cannot proceed with the divorce, as the defendant's due process rights require actual notice of legal proceedings affecting them.
Who Can Serve Divorce Papers
South Dakota law specifies who may serve divorce papers. The summons may be served by:
Sheriff or constable
The sheriff of the county where the defendant may be found can serve divorce papers. This official service provides strong proof of delivery and is commonly used.
Process server
Any other person not a party to the action who, at the time of making service, is an elector (registered voter) of any state may serve papers. Professional process servers charge fees for their services but provide reliable, documented service.
Any credible adult
Personal service can be done by any credible person over the age of 18 who is not involved in the case. A friend or family member (who is not a party to the divorce) can hand-deliver papers to the defendant.
Note: The plaintiff cannot serve their own divorce papers. Someone else must complete the service.
Methods of Service of Process
South Dakota recognizes several methods for accomplishing service of process:
Personal service
The papers are hand-delivered directly to the defendant. The summons shall be served by delivering a copy to the defendant personally. This represents the most reliable form of service and is preferred whenever possible. The server must deliver copies of both the summons and complaint.
Substituted service
If the defendant cannot be found conveniently, service may be made by leaving a copy at their dwelling house in the presence of a member of their family over the age of fourteen years. If the defendant resides in the family of another, papers can be left with a member of such age of the family with whom they reside. This method requires the server to exercise reasonable diligence in attempting personal service first.
Acceptance of service
If the other side is willing to accept the papers, you can give them a copy, have them sign an Admission of Service form saying that they received them, and file that form with the clerk of the court's office. This voluntary acceptance saves time and service costs.
Service by mail
South Dakota law allows service by mailing a copy of the summons, two copies of the notice and admission of service, and a return envelope (postage prepaid) addressed to the sender. The defendant must sign and return the admission of service within twenty days. Failure to return the admission without good cause may result in the court ordering the defendant to pay the costs of personal service.
Service by publication
This method is used only if the person you are suing lives out of state, and you don't know how to locate them. Service by publication involves publishing a summons in a newspaper approved by the court. This can be complicated and is governed by South Dakota Codified Laws Sections 15-9-7 through 15-9-22. Every effort should be made to locate the defendant personally before resorting to this method.
Timeline for Service
The defendant must be served within a reasonable timeframe. South Dakota court rules generally require service to be completed within 60 days of filing, though courts may extend this deadline for good cause.
Proof of Service
After serving the defendant, proof of service must be filed with the court. This proof must state the time, place, and manner of service and must be made as follows:
- If served by a sheriff or county constable, their certificate thereof
- If by any other person, their affidavit thereof
- The written admission of the party or their representative
- In case of publication, by affidavit of the printer, foreman, principal clerk, or newspaper publisher showing the publication and an affidavit of mailing copies
- In case of mailing, by affidavit of mailing and admission of service
This documentation becomes part of the court record and proves the defendant received proper notice.
Step 3: Defendant's Response
After being served, the defendant has specific options for responding to the divorce complaint.
The 30-Day Response Period
The defendant has thirty days from the date of service of the summons and complaint to file a formal answer in writing with the court. This answer represents the defendant's side of the story and addresses each allegation in the plaintiff's complaint.
Filing an Answer
The defendant files a written response to the complaint, telling their side of the story, and delivers a copy to the plaintiff. The answer must respond to each paragraph of the petition, stating whether the defendant agrees or disagrees with each statement and request.
In the answer, the defendant can contest the divorce itself (by refusing to agree to no-fault grounds), dispute child custody or support requests, challenge property division proposals, disagree with alimony requests, or raise any other objections to the plaintiff's claims.
Counterclaim
The defendant may also file a counterclaim, which is essentially their own complaint for divorce. The counterclaim allows the defendant to make affirmative requests to the court rather than just responding to the plaintiff's requests.
Consequences of Default
If the defendant chooses not to file an answer, the judge could enter a default judgment. Default means the defendant does not answer, respond, or in any way contest the divorce or related matters such as child custody, support, alimony, or division of property and debts. In a default situation, the divorce can be granted, and the plaintiff can receive what they requested in their complaint based on their testimony alone.
However, the defendant cannot be defaulted until at least 60 days have passed since service, consistent with South Dakota's mandatory waiting period.
Step 4: Financial Disclosures
Both spouses must exchange comprehensive financial information during the divorce process.
Mandatory Financial Disclosure Requirements
South Dakota requires both spouses to complete and exchange financial disclosure forms detailing all assets, debts, income, and expenses. This mandatory step ensures fair property division and appropriate support determinations.
Financial disclosures typically include documentation of income (pay stubs, tax returns, business income), assets (bank statements, investment accounts, retirement accounts, real estate, vehicles, personal property), debts (mortgages, car loans, credit cards, personal loans), and monthly expenses (housing, utilities, food, transportation, healthcare, childcare).
Timeline for Disclosures
Financial disclosure forms are generally exchanged within 45 to 60 days after the defendant files their answer, though specific timelines may vary based on local court rules and case complexity.
Step 5: Temporary Orders
During the divorce process, either party can request temporary orders addressing immediate needs.
What Temporary Orders Address
Temporary orders can cover temporary custody and visitation schedules, temporary child support payments, temporary spousal support, use of the marital residence, payment of bills and expenses, protection orders if domestic violence is alleged, and possession of vehicles and other property.
These temporary arrangements remain in effect during the divorce proceedings and sometimes form the basis for permanent orders in the final decree.
Automatic 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 parties are restrained from disposing of any marital assets, molesting or disturbing the peace of the other party, and removing any minor child of the parties from the state without the written consent of the other party or a court order.
If either spouse disobeys a restraining order or protection order, the court can hold them in contempt after a hearing, with consequences including fines or jail time.
Step 6: The Mandatory 60-Day Waiting Period
South Dakota imposes a mandatory waiting period before any divorce can be finalized.
Purpose of the Waiting Period
An action for divorce or separate maintenance shall not be heard, tried, or determined by the court until at least sixty days have elapsed from the completed service of the plaintiff's summons and complaint. This "cooling off" period allows parties to reconcile or modify their divorce settlement agreement.
What Happens During This Period
During the 60-day waiting period, spouses can negotiate settlement agreements, complete financial disclosures, attend mediation if required, work on parenting plans if they have children, gather evidence if the divorce is contested, and attend temporary order hearings if necessary.
The mandatory waiting period applies to both contested and uncontested divorces and cannot be waived except in extraordinary circumstances.
Step 7: Negotiation and Settlement
Most divorces settle through negotiation rather than proceeding to trial.
Developing Settlement Agreements
Before having the case heard before a judge, the parties should attempt to find a resolution that is fair and equitable. This can be done by completing a settlement agreement. Where the parties can agree on custody of children, division of property and debts, child support, and alimony, a written agreement called a "stipulation" is prepared and signed by both parties.
The stipulation is presented to the court for the judge's approval. Once approved, both spouses are bound by its terms. Settlement agreements must address all contested issues to avoid the need for trial.
Mediation
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. Mediation involves meeting with a neutral third party who helps facilitate an agreement between spouses.
Even when not court-ordered, mediation can help resolve disputes more amicably and cost-effectively than litigation. The mediator doesn't make decisions but helps spouses communicate and find mutually acceptable solutions.
Step 8: Court Hearings and Trial
If spouses cannot reach a complete settlement, the case proceeds to court hearings or trial.
Contested Divorce Proceedings
If the defendant has filed a formal answer and does not agree to the divorce or disputes matters such as custody, child support, or property division, a trial will be held. The judge will decide these matters on the basis of evidence, including testimony of both parties and other witnesses.
Preparing for Court
Both parties need to begin gathering evidence to prove their case. Evidence could include documents (financial records, property titles, tax returns), photographs (of property, living conditions, relevant situations), and testimony of witnesses (character witnesses, expert witnesses, fact witnesses).
Proper preparation is essential for presenting a compelling case to the judge.
The Hearing or Trial
This is when both sides appear before the judge to present their evidence to prove their case. Each party has the opportunity to present testimony, introduce documents and other evidence, call witnesses, and cross-examine the other party's witnesses.
In divorce trials, the judge (not a jury) makes all decisions regarding property division, spousal support, child custody, and child support.
Step 9: Final Decree of Divorce
After all issues are resolved either by agreement or court decision, the judge issues the final decree.
What the Final Decree Includes
If the divorce is granted, the decree dissolves the marriage and returns each spouse to the status of a single person. The final decree also includes child custody orders specifying legal and physical custody arrangements, child support obligations based on South Dakota guidelines, alimony provisions if awarded (amount, duration, and termination conditions), division of property and debts (who receives which assets and who pays which debts), attorney fees allocation if court ordered one party to pay the other's fees, and restoration of a woman's former or maiden name if requested.
Finality of Property Division
It's important to keep in mind that the final decree is final as to property division and cannot be modified by the court in the future. Unlike child support or custody, which can be modified based on changed circumstances, property division orders are permanent once the decree is entered.
Post-Decree Requirements
After the decree is entered, spouses must comply with all its terms, including transferring property titles, making support payments, following custody schedules, and completing any other required actions.
Special Procedures and Considerations
Several special situations affect the South Dakota legal process for divorce.
Serving a Spouse 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 divorce and divide property located in South Dakota. However, the court in South Dakota generally does not have authority to award custody of children residing in another state.
Custody Evaluations
The court may direct that an evaluation be conducted to assist the court in making custody and visitation orders. Professional evaluators assess family dynamics, parent-child relationships, and home environments to provide recommendations to the judge. The cost of evaluations is allocated by the court unless agreed upon by the parties.
Parenting Classes
The court may order that you attend a class to understand the effects of your divorce on your children. Many South Dakota courts require divorcing parents to complete parenting education programs before finalizing a divorce.
Qualified Domestic Relations Orders (QDROs)
If dividing retirement accounts like 401(k)s or pensions, a Qualified Domestic Relations Order (QDRO) is required. This special court order instructs retirement plan administrators how to divide the accounts according to the divorce decree. Each retirement plan may have specific requirements for QDROs.
Working with Attorneys vs. Self-Representation
Understanding your options for legal representation affects how you navigate the South Dakota legal process.
Benefits of Attorney Representation
While some people represent themselves in divorce proceedings (proceeding "pro se"), most benefit from attorney representation. Attorneys help by advising on legal rights and options, preparing and filing documents correctly, negotiating favorable settlements, gathering and presenting evidence effectively, protecting against procedural errors, and advocating in court hearings and trials.
Self-Representation Considerations
If you represent yourself, you are proceeding "pro se." Pro se litigants must follow all the same rules and procedures as attorneys. Court staff cannot provide legal advice, but can answer questions about forms and procedures.
The South Dakota Unified Judicial System provides self-help resources, including court forms, instructions, and a Legal Form Help Line (1-855-784-0004) to help people complete forms. However, this service cannot provide legal advice.
Uncontested Divorce Timeline
For uncontested divorces where spouses agree on all terms, the typical timeline is: Filing and service (Days 1-15), financial disclosures (Days 30-45), settlement agreement preparation (Days 45-60), mandatory 60-day waiting period expires (Day 60), and final hearing and decree (Days 60-90).
Most uncontested divorces finalize within 2-4 months from filing.
Contested Divorce Timeline
Contested divorces take significantly longer: Filing and service (Days 1-30), answer and counterclaim filed (Days 30-60), financial disclosures and discovery (Days 60-120), temporary orders hearing (Days 30-90), mediation attempts (Days 90-150), trial preparation (Days 120-240), trial (Days 180-365+), and final decree (Days 190-400+).
Contested divorces typically take 6-18 months or longer, depending on complexity and court schedules.
Costs of the South Dakota Legal Process
Filing fees range from $95-$97, depending on the county. Additional court costs may include service fees ($50-$150 depending on method), mediation fees if required (varies), custody evaluation fees if ordered (typically $1,000-$5,000), and certified copies of the final decree.
Attorney Fees
Attorney fees represent the largest expense for most divorces. Costs vary based on whether the divorce is contested or uncontested, case complexity, attorney experience and rates (typically $150-$350 per hour in South Dakota), and total time required.
Simple uncontested divorces may cost $1,500-$3,000 in attorney fees, while contested divorces can cost $10,000-$50,000 or more, depending on complexity and litigation extent.
The South Dakota legal process for divorce follows a structured path from filing through final decree, with specific requirements for service of process, response deadlines, financial disclosures, waiting periods, and court procedures. Whether pursuing an uncontested or contested divorce, understanding each step helps you navigate the process more confidently and avoid costly procedural errors.