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South Dakota Annulments

Annulments in South Dakota

Annulments in South Dakota focus on the foundation of the marriage, not the conduct of the partners. An annulment means that no valid marriage ever existed, which is the case in void marriages; annulment also cancels an invalid marriage, which is the case in voidable marriages.

South Dakota laws about annulment are in the South Dakota Codified Laws Chapter 25-3.

Grounds

Here are the grounds for annulment in South Dakota:

Bigamy, which means that one spouse has a living wife or husband at the time of marriage;
Unsound mind, which means one spouse has a mental disability, such as retardation or insanity;
Underage, which mean that one spouse was below the legal age to be married - 18 years of age;
Duress, which means one spouse was forced to get married;
Fraud, which means one spouse defrauded the other into getting married;
Impotence, which means that one spouse is physically unable to have sexual intercourse, and the difficulty is incurable;
Incest, which means the spouses are first cousins or more closely related.

Some grounds for annulment have additional requirements:

The victim spouse in a bigamous marriage must file for an annulment while the previous wife or husband is still alive. The marriage won’t be annulled if the spouse who was already married believed their spouse was dead or if they were missing for five years before the current marriage. When bigamy happens, it is usually because one partner failed to get an official divorce from a previous spouse.
In the case of an annulment for an unsound mind, a spouse with unsound mind cannot annul a marriage if he or she continued to live with their spouse after their mental disability ended. For example, if a spouse was temporarily insane at the time of marriage but continues to live with their spouse after recovering from the insanity, the marriage won’t be annulled.;
In South Dakota, a person must be at least 18 to get married, or at least 16 with consent from a parent or guardian. If a person was underage but continues to live with his or her partner after reaching 18, an annulment cannot be granted. Moreover, the partner or guardian must file for annulment before age 22. When either partner was under the age of consent and did not have parental approval, the marriage can be annulled. Underage annulments must be filed within four years of the underage partner reaching the age of majority.
In the case of coercion, the partner cannot cohabit voluntarily live with the partner. The innocent spouse must file for annulment within four years of the marriage.
In the case of fraud, the innocent spouse must stop living with the partner after discovering the fraud and file for an annulment within four years of discovering it.
For a marriage to be annulled because one spouse is physically unable to have sexual intercourse, one of the spouses must file for annulment within four years of the marriage.

Even though there was never a valid marriage, the judge can still decide the same issues as in a divorce: custody, visitation, child support, alimony, and property division.

Children that were born during a marriage that’s been annulled, or within 10 months of an annulled marriage, are considered legitimate unless one of the spouses or children can prove the husband was not the biological parent. Both parents have to financially support their legitimate children. Legitimate children can also inherit from either parent.

Procedure

To file an annulment in South Dakota, the plaintiff files a Complaint for Annulment in the circuit court for the county where either spouse resides. After filing, the defendant, the other spouse, receives a copy of the complaint and the summons.

The complaint states the particulars of the marriage and the legal grounds for annulment. Children of the marriage must be listed with their names and dates of birth. If need be, the court decides child custody, visitation, child support, alimony, or property division

The clerk’s office provides information about different options to serve a spouse, and there are ways to serve an out of state spouse or a spouse who cannot be found, if need be.

After the defendant receives the complaint, the court sets a date for a hearing. The plaintiff brings any evidence or witnesses that prove the legal grounds for the annulment. If the judge believes the plaintiff has proven the marriage should be annulled, he or she signs an order granting the annulment.