South Dakota filing for divorce begins when one spouse prepares and submits legal documents to the circuit court, officially starting the divorce proceedings. Whether you're considering an uncontested divorce where both parties agree on terms or facing a contested divorce requiring court intervention, understanding the requirements, procedures, and timelines for filing for divorce in South Dakota helps ensure your case proceeds smoothly from start to finish.
A divorce is a legal action that dissolves a marriage and addresses all related matters including property division, spousal support, child custody, and child support. The divorce proceeding transforms legal spouses into single individuals while establishing new legal relationships and financial obligations.
Types of Divorce Available
Courts in South Dakota recognize two main types of divorce that affect how filing proceeds:
- Uncontested divorce (also called stipulated divorce) occurs when spouses agree on all major issues. Both parties consent to the divorce and reach agreement on grounds for divorce, custody and visitation of any minor children, child support and insurance coverage, spousal support or alimony, property division, debt allocation, and all other divorce-related matters. Uncontested divorces move faster, cost less, and cause less emotional stress than contested proceedings.
- Contested divorce happens when spouses cannot agree on some or all aspects of the divorce. One spouse contests the divorce grounds, disputes child custody arrangements, challenges property division proposals, disagrees with support amounts, or refuses to agree on other material terms. Contested divorces require hearings, possibly mediation, evidence presentation, and potentially trial before a judge.
Residency Requirements for Filing
Before filing for divorce in South Dakota, you must meet the state's residency requirements.
South Dakota's Lenient Residency Rules
To obtain a divorce in South Dakota, you must be a resident of South Dakota at the time you file. There's no specific length of residency or waiting period before beginning the action 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.
This means you can be living in South Dakota for only one day and file for divorce, as long as you have the intention of remaining in the state. South Dakota has some of the most lenient residency requirements when it comes to divorce compared to other states that require months or even a year of residency before filing.
What Constitutes Residency
Being a resident of South Dakota means you are domiciled in the state, you live here and intend to make South Dakota your permanent home. As proof of residency, you might be asked to provide a South Dakota driver's license, state identification card, or an affidavit from a corroborating witness confirming your residency.
Military Members
If you're a member of the military stationed in South Dakota, you can file for divorce here even if South Dakota is not your state of legal residence. You do not have to be living in South Dakota during the divorce proceedings to be granted a divorce, though you must be a resident when you file.
Grounds for Divorce in South Dakota
South Dakota courts favor marriage over divorce, so you must provide legally acceptable grounds (reasons) for requesting divorce.
No-Fault Ground
You can get a divorce in South Dakota without claiming that your spouse is at fault. The judge can grant you a no-fault divorce if the judge finds that there are irreconcilable differences between you and your spouse. Irreconcilable differences exist when there are substantial reasons for the marriage to end, fundamental problems that cannot be resolved.
To get a divorce because of irreconcilable differences, one of the following must be true: both spouses must agree (consent) to a divorce on the grounds of irreconcilable differences, or the spouse who was served with the divorce petition does not appear in the divorce case (does not make a general appearance).
If one spouse contests the divorce and refuses to agree to irreconcilable differences, the filing spouse must prove one of the fault-based grounds instead.
Fault-Based Grounds
South Dakota law recognizes six fault grounds for divorce when you claim your spouse was responsible for the marriage breakdown:
- Adultery
Your spouse has sexual intercourse with someone else after marriage. You must provide evidence proving the affair occurred.
- Extreme cruelty
Your spouse causes you serious physical injury or causes you serious mental suffering. This includes domestic violence, abuse, or severe emotional harm.
- Willful desertion
Your spouse leaves you with the intent to leave the marriage and remains gone continuously for at least one year. This includes physical abandonment or constructive desertion through forced departure.
- Willful neglect
Your spouse refuses to provide for your common needs even though they can afford to do so, or because of laziness (idleness), extravagant habits (profligacy), or wastefulness (dissipation). This ground lasts at least one year.
- Habitual intemperance
Your spouse is under the influence of alcohol so often that they can't manage normal activities, or so often that it causes you intense emotional distress. This pattern must continue for at least one year.
- Conviction of a felony
Your spouse is convicted of a felony during your marriage. This is the easiest fault ground to prove since it relies on court records.
Choosing Your Grounds
Most divorces in South Dakota proceed on no-fault irreconcilable differences because this ground simplifies the process, reduces conflict, protects privacy, and costs less. However, fault grounds remain available when circumstances warrant, particularly when one spouse refuses to consent to no-fault divorce or when documenting misconduct matters for alimony or custody purposes.
Required Documents for Filing
South Dakota filing for divorce requires specific legal documents prepared according to court rules.
Summons
The summons formally notifies your spouse that a legal action is being filed against them. The summons must be legibly signed by the plaintiff or their attorney, directed to the defendant, and require them to answer the complaint and serve a copy of their answer within thirty days after service, exclusive of the day of service. The summons notifies the defendant that failure to answer may result in default judgment.
Complaint for Divorce
The complaint (also called petition for divorce) is the formal request to the court to grant the divorce. The complaint must include:
Basic information about both spouses including names, addresses, and ages; marriage date and place; separation date if applicable; grounds for divorce (irreconcilable differences or specific fault ground); whether there are minor children of the marriage; requests regarding child custody and visitation; requests for child support amounts; requests for spousal support or alimony; proposals for division of property and debts; requests for attorney fees if appropriate; and any other relief sought from the court.
The complaint 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.
Financial Disclosure Forms
Most courts require comprehensive financial disclosures detailing all assets, debts, income, and expenses. These forms ensure fair property division and appropriate support determinations.
Additional Forms
Depending on your county and circumstances, you may need to complete additional forms including a summons for publication (if spouse cannot be located), parenting plan (if you have minor children), child support worksheet, and financial affidavits.
Where to Get Divorce Forms
South Dakota provides multiple resources for obtaining divorce paperwork.
South Dakota Unified Judicial System
The South Dakota Unified Judicial System provides court forms for individuals who wish to get a divorce by filing on their own. These forms are available on the UJS website and contain helpful information and instructions for completing them adequately.
Clerk of Courts Office
Forms for filing for divorce are also obtainable from the clerk of courts in the county circuit court where the divorce will be filed. Court clerks can provide forms and answer questions about procedures, but they cannot provide legal advice about your specific situation.
Legal Form Help Line
South Dakota provides a Legal Form Help Line at 1-855-784-0004 to answer questions about or help people complete UJS forms. This service cannot provide legal advice but can answer form-related questions.
Online Divorce Services
Several online divorce services can prepare South Dakota divorce forms for couples with uncontested divorces. These services typically cost less than hiring an attorney but more than doing it yourself.
Determining the Proper Court and Venue
You must file your divorce paperwork in the correct court and county.
Circuit Courts Handle Divorce
Cases involving family matters like divorce are filed in circuit court. South Dakota has 17 circuit courts that serve as the state's trial courts and oversee divorce proceedings. Magistrate courts handle small claims but not divorce cases.
Choosing the Right County
Most petitioners file the divorce paperwork in the county circuit court where they live. If you and your spouse have separated and live in different counties, you may file your paperwork in either county's circuit court. The case is usually filed where you live or where the marital action took place.
Filing Fees and Costs
South Dakota filing for divorce involves several costs beyond attorney fees.
Court Filing Fee
There is a filing fee at the courthouse when you submit your divorce documents. The filing fee for divorce in South Dakota is approximately $95, though the amount varies slightly by county. You should check with your local courthouse for the exact amount in your jurisdiction.
The defendant who files an answer to the complaint typically pays a filing fee of approximately $25, though this also varies by county.
Fee Waivers for Low-Income Filers
In certain cases, filing fees and sheriff's 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.
If you can't afford to pay the filing fee, you can request a fee waiver from the court. You will need to provide a fee waiver application to the clerk of courts when you file your divorce paperwork. The judge will review it and decide whether it's appropriate to waive your fees. If approved, you will not have to pay any court costs for the duration of your case.
Service Costs
You'll also need to pay for serving the divorce papers on your spouse unless they sign an admission of service. Service costs vary depending on method: Sheriff service typically costs $50-$75, private process server costs range from $75-$150, and service by publication (if necessary) costs several hundred dollars for newspaper publication.
Additional Potential Costs
Other costs may include certified copies of the final decree, mediation fees if required by the court, custody evaluation fees if ordered, and copying costs for documents.
Filing Your Divorce Papers
Once you've completed all required forms, you're ready to file.
Submit Documents to Clerk of Courts
Take your completed summons, complaint, and any other required documents to the clerk of courts office in the appropriate county circuit court. The clerk will review your documents to ensure they're complete and properly formatted, though they cannot review for legal sufficiency.
You'll need to pay the filing fee (approximately $95) at this time, or submit your fee waiver application if you cannot afford the fee.
Receive Case Number
The clerk of courts will assign your case a number and file-stamp your documents. You'll receive copies of the filed documents showing the filing date and case number. Keep these copies for your records as you'll need them throughout the divorce process.
What Happens After Filing
After you file all required documents with the court, the next critical step is serving your spouse with copies of the divorce papers. The court cannot proceed until your spouse receives proper legal notice of the divorce action.
The Defendant's Response Period
After being served, your spouse has thirty days to respond.
30-Day Deadline
The summons demands that your spouse answer the complaint within thirty (30) days or a default judgment may be entered against them after sixty (60) days. This 30-day response period runs from the date of service, exclusive of the day of service.
What the Defendant Can Do
Your spouse can sign and file an answer agreeing to the divorce and its terms, file an answer contesting some or all divorce issues, file a counterclaim making their own divorce requests, sign an admission agreeing to irreconcilable differences as the ground, or do nothing and risk default judgment.
The Mandatory 60-Day Waiting Period
South Dakota imposes a mandatory waiting period before any divorce can be finalized.
Cannot Finalize Before 60 Days
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 means the judge cannot issue the final judgment for divorce until at least 60 days have passed since the divorce papers were served on your spouse.
This "cooling off" period allows the parties to reconcile or modify the divorce settlement agreement. The 60-day waiting period applies to both contested and uncontested divorces and cannot be waived except in extraordinary circumstances.
What Happens During Waiting Period
During the mandatory 60 days, spouses typically exchange financial disclosures, negotiate settlement agreements, attend mediation if required or beneficial, work on parenting plans if they have children, complete S.M.I.L.E. classes if required (in Minnehaha and Lincoln Counties), attend temporary order hearings if necessary, and prepare for final hearing or trial if divorce is contested.
The court can enter temporary orders concerning child custody, support, alimony (spousal support), and use of the marital residence during the waiting period.
How the Divorce May Proceed
After filing and service, your divorce will follow one of several paths depending on your spouse's response.
Default Divorce
If 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 within the required time, you may proceed with a default divorce. If your attorney hears nothing from your spouse after 60 days from service, a divorce can be granted and you can get what you asked for in your complaint based on your testimony alone.
Stipulated (Uncontested) Divorce
Where it's possible for the parties to agree on the 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. In such a situation, the divorce is handled like a default divorce and is granted based on your testimony alone. The stipulation is presented to the court for the judge's approval and both parties 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 terms are set forth in the stipulation, and both parties agree the grounds for the divorce is irreconcilable differences.
Contested Divorce
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 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 visitation orders. The cost of mediation and evaluations are allocated by the court unless agreed upon by the parties.
Working with Attorneys vs. Self-Representation
Whether to hire an attorney for South Dakota filing for divorce depends on your circumstances.
When You May Not Need an Attorney
In uncontested divorces where spouses agree on all terms, hiring a lawyer may not be necessary. Filing paperwork yourself saves significant attorney fees. South Dakota provides forms, instructions, and support services to help people complete divorce paperwork adequately.
Several kits are available for do-it-yourself divorce, and if the paperwork is done correctly, it will be accepted by the local clerk of courts and a divorce can be granted by the judge. However, you'll spend time getting familiar with all local forms and rules, as requirements differ from county to county.
When You Should Hire an Attorney
In contested divorces where spouses cannot agree on terms, hiring a lawyer is important. Attorneys help by preparing proper legal documents, presenting evidence effectively, negotiating favorable settlements, protecting your legal rights, explaining complex legal issues, and advocating for you in court hearings and trials.
Even for uncontested divorces, many people benefit from at least consulting with an attorney to ensure they understand their rights and the agreement is fair.
Finding an Attorney
Individuals who require the services of an experienced divorce lawyer may find one through the South Dakota Lawyer Referral Service operated by the State Bar. You can also search the organization's database using parameters such as practice area, attorney's name, or firm name.
South Dakota provides a free consultation policy with many attorneys, allowing you to discuss your case before deciding whether to hire representation.
Attorney Fees and Costs
If you hire an attorney, understanding fee structures helps with financial planning.
How Attorneys Charge
Each party is responsible for their own attorney fees unless otherwise ordered by the court. Attorney fees are the amount an attorney charges a client for the time and work expended on the case.
Most divorce lawyers base their fees on an hourly rate ranging from $150-$350 per hour in South Dakota, though rates vary based on attorney experience and location. The more complicated the divorce, the more expensive it's going to be.
Typical Costs
Uncontested divorces can usually be handled in approximately 4 hours of attorney time, plus the filing fee of $95, plus sales taxes, and the costs of serving the papers on the other side. Total costs for simple uncontested divorces typically range from $1,500-$3,000.
Should a hearing be necessary, small hearings can add $500-$600 to the cost, and longer hearings cost closer to $1,000. If a trial is necessary, it usually adds at least $2,000 per trial day to the cost of the divorce for the time necessary to prepare the case, contact witnesses, try the case, and prepare the final paperwork.
Contested divorces typically cost $10,000-$50,000 or more depending on complexity and extent of litigation.
Court-Ordered Attorney Fees
The court can order either party to pay all or part of the attorney fees and costs of the other party. Courts sometimes order the higher-earning spouse to pay attorney fees for the lower-earning spouse who cannot afford representation.
Timeline for South Dakota Divorce
Understanding typical timelines after filing helps set realistic expectations.
Uncontested Divorce Timeline
For uncontested divorces where both spouses agree: Filing and service (Days 1-15), 30-day response period (Days 15-45), settlement agreement finalization (Days 30-60), mandatory 60-day waiting period from service expires (Day 60+), final hearing and decree entry (Days 75-100).
Most uncontested divorces finalize within 2.5-4 months from filing.
Contested Divorce Timeline
Contested divorces take significantly longer: Filing and service (Days 1-30), defendant's answer filed (Days 30-60), discovery and financial disclosures (Days 60-150), temporary orders hearings (Days 60-120), mediation attempts (Days 90-180), trial preparation (Days 120-300), trial (Days 180-400+), final decree (Days 200-450+).
Contested divorces typically take 6-18 months or longer from filing to final decree.
Special Considerations When Filing
Several unique situations affect South Dakota filing for divorce.
If Your Spouse Lives 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 the authority to award you custody of children residing in another state.
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 written consent of the other party or a court order.
S.M.I.L.E. Program
All divorces involving children in Minnehaha and Lincoln Counties require that the couple attend S.M.I.L.E. (Start Make it Livable for Everyone). It's held on the 2nd and 4th Tuesdays of each month at the Minnehaha County Courthouse at 7:00 p.m. You need to sign up and pay $5. Parents do not need to attend together and children may not attend.
Moving Forward with Filing
South Dakota filing for divorce begins your journey toward ending your marriage and establishing new legal relationships. Whether pursuing uncontested or contested divorce, understanding residency requirements, grounds for divorce, required paperwork, filing fees, service procedures, and what happens after filing helps you navigate the process confidently.
Most people benefit from at least consulting with a South Dakota family law attorney before filing to ensure they understand their rights, obligations, and options. With proper preparation and knowledge of procedures, you can file for divorce effectively and move forward toward the next chapter of your life.