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South Dakota Divorce Process
Preparing the Documents
In order to file for divorce pro se in South Dakota, a party must complete forms that can be obtained from the South Dakota Form Index.
The forms differ depending on whether a party has children and also on whether he or she is the plaintiff, who is the spouse who initiates the divorce or the defendant, who is the spouse who receives the papers and responds to the complaint. Divorcing parents with minor children - that is, financially dependent and not legally emancipated - use the Pro Se Divorce with Children forms. Spouses without minor children together use the Pro Se Divorce Without Children forms.
Divorcing parents - either the plaintiff or the defendant - who do not agree on the terms of their divorce should download and read A Guide for Representing Yourself in South Dakota Courts (UJS-300) and General Definitions (UJS 301), which gives some background about South Dakota divorce laws and illuminates court processes and vocabulary. After reading these materials, the plaintiff should download and read Plaintiff Instructions With Children (UJS 307A), or the defendant should read Defendant Instructions With Children (UJS 308A).
These instructions guide the parties through the process and help them decide what additional forms they need to complete, file, and serve. Some forms vary from case to case. However, when the spouses do not agree on divorce terms, the plaintiff nevertheless completes, files, and serves the Summons with Children (UJS 311, Complaint with Children (UJS 312), and the Checklist (UJS 303A). The defendant will always have to file the Answer with or without Children (UJS-318).
If the spouses have minor children and agree to all terms of the divorce, both download and read A Guide for Representing Yourself in South Dakota Courts (UJS-300) and General Definitions (UJS 301) and then download and read Stipulation Instructions with Children (UJS 323A). Then, together with the defendant, they read and complete the Stipulation with Children (UJS 325) and sign it in the presence of a notary. Fill out only the top part of the Decree of Divorce (Stipulation and Agreement with Children) (UJS 326A), because it has to be signed by a judge.
If the spouses do not have minor children and do not agree on the terms of their divorce, they should download and read A Guide for Representing Yourself in South Dakota Courts (UJS-300) and General Definitions (UJS 301A), and then the plaintiff reads Plaintiff Instructions Without Children (UJS 307) and the defendant reads Defendant Instructions Without Children (UJS 308). The forms may vary, but the plaintiff can expect to file the Summons without Children (UJS 310), and the Checklist (UJS 303), and the defendant responds with Answer with or without Children (UJS 318), among other forms.
A couple with children who agree to all terms of the divorce should download and read A Guide for Representing Yourself in South Dakota Courts (UJS-300) and General Definitions (UJS 301) and then download and read Stipulation Instructions (UJS 323). Then, together with the other spouse, they read and complete the Stipulation with Children (UJS 324) and sign it in the presence of a notary, and complete only the top part of the Decree of Divorce (Stipulation and Agreement with Children) (UJS 326), because it has to be signed by a judge.
Filing the Paperwork with the Court
The plaintiff makes two copies of all documents and keeps the original. Eventually one copy goes to the court, one to the defendant, and the plaintiff gets one set.
The plaintiff files the divorce papers with the clerk in the local courthouse (the one in the county where the spouses live) and asks to file the documents that were outlined in the Instructions. The plaintiff pays a fee unless he or she completes an Affidavit of Indigency (UJS 305) and the court agrees that the fee should be waived because he or she can’t afford it.
Serving the Documents
The plaintiff should serve the defendant as soon as possible after leaving.
Service of process insures that everyone understands what is happening and has opportunity to argue his or her point of view.
The defendant must file an Answer within 20 days of being served with the plaintiff's papers, or the plaintiff can ask for a default judgment, which means that the divorce is entered solely on plaintiff’s terms without input from the defendant.
If the defendant is a party who is pro se (meaning, has not hired a lawyer), then the plaintiff should serve him or her directly at the defendant’s home. If the defendant has a lawyer, the plaintiff serves the lawyer at the lawyer’s office and does not send copies to the defendant.
The plaintiff serving the Summons and Complaint can hire a professional process server or law enforcement official (like a sheriff or constable) to serve the documents personally, and then complete an Affidavit of Personal Service. The plaintiff can also send the materials to the defendant if the defendant signs and returns a Notice and Admission of Service of Summons and Complaint within 20 days.
Virtually all other documents can be served by first class mail or hand delivery.
Different routines may apply when trying to serve someone who is very hard to locate, in the military, out-of-state, or in jail.
Disclosing Financial Information
Both spouses complete a Financial Affidavit (UJS 304), which is a notarized statement that details each spouse’s financial picture, both assets and liabilities and income and expenses. Thus everyone understands more about, for example, how much child support should be paid, or whether one spouse should receive alimony.
Finalizing the Divorce
In South Dakota, there is a mandatory 60-day waiting period from the time the divorce is started until the court has jurisdiction to grant a divorce.
Premarital agreements must be written and signed. In South Dakota, premarital agreements may include provisions that define the respective property rights of the parties during the marriage, or upon the death of either or both of the parties. The agreement may provide for the disposition of marital property upon a divorce or separation of the parties, but may not adversely affect the right of child support.
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