South Dakota Uncontested Divorce

This information is an overview of the uncontested South Dakota divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in South Dakota.

To file for a divorce in South Dakota, a person must be a resident of the state at the time of the filing and must remain a resident of the state until the divorce is final. The divorce may be filed in the county where either spouse resides, but a defendent has the right to have it transferred to the county of his or her residence if he or she desires. There is no other residential requirement. The same requirements apply to military personnel stationed in the state.

There is a 60-day waiting period after the filing of the action before a hearing will be held or a divorce granted.

Grounds for divorce are No-Fault, which means "[i]rreconcilable differences which have caused the irretrievable breakdown of the marriage"; and general grounds of 1) adultery, 2) conviction of a felony, 3) willful desertion, 4) cruel and inhuman treatment, 5) willful neglect and 6) habitual intemperance.

Actions are filed in the Circuit Court of the county of residence.

The party filing the action is called the Plaintiff; the party responding is called the Defendant.

When both spouses agree to use irreconcilable differences, South Dakota courts may grant the divorce based solely on affidavits that establish the required residency and grounds. Personal appearances by either spouse are not required.

In South Dakota, pro se Plaintiffs must complete a checklist stating that he or she has filed all the necessary forms, and the list becomes part of the divorce paperwork filed with the Court Clerk.

To file for a divorce, the Plaintiff must complete the following forms:

> A Summons without Children, UJS 309, and a Complaint without Children, UJS 310; or

> A Summons with Children, UJS 311, and a Complaint with Children, UJS 312.

The Summons informs the Plaintiff that he or she has 30 days after its receipt to answer the Complaint and that failure to do so may result in a default judgment against him or her. The summons also imposes a temporary restraining order against the dissipation of marital assets, restrains the parties "from molesting or disturbing the peace" of each other, and in the case of children, enjoins either of them from removing children from the state. The complaint specifies whether the action is sought on grounds of irreconcilable differences, which will not likely be contested, or fault grounds, which will likely be contested.

If the Defendant agrees, he or she can sign a Notice and Admission of Service of Summons and Complaint, UJS 315, which is returned to the Plaintiff, who files it with the Clerk of Courts as part of the divorce papers. If he or she refuses to sign the Notice and Admission of Service of Summons and Complaint, the Plaintiff must have the Summons and Complaint served on the Defendant. This cannot be done by the Plaintiff. Normally service of process is completed by the sheriff or professional process server, who completes a notarized Affidavit of Personal Service, UJS 314, which is returned to the Plaintiff and becomes part of the case papers. Any other case papers other than the Summons and the Complaint may be mailed to the Defendant, after which the Plaintiff must complete a notarized Affidavit of Service by Mail, UJS 313, which become part of the divorce papers.

Each spouse completes a Financial Affidavit, form UJS 304, which provides the court with detailed information about the party’s property and debts, and, if applicable, a Child Support Filing Data form, UJS/DSS 89.

The parties also file a Civil Case Filing Statement, UJS 232, with identifies the parties.

The Plaintiff must also file an Affidavit of Non-Military Status, UJS 306, which attests to the fact that the Defendant is not a member of the military and hence enjoys no protections under the terms of the Servicemembers’ Civil Relief Act.

If the Defendant lives outside the state or cannot or will not accept the Summons and Complaint, the Plaintiff, having made a diligent effort to locate and serve the missing spouse, may petition the court for permission to serve the party by publication of a notice of the action in a newspaper. This notice is published four times, after which the Defendant is considered served.

The Defendant may choose to file an Answer (With or Without Children), UJS 318, in which he or she admits, denies, partially admits or partially denies, or claims insufficient information to answer the allegations in the Complaint. Or he or she may filed an Answer and Counterclaim Without Minor Children, form UJS 316, or an Answer and Counterclaim With Minor Children, form UJS 317, depending upon his or her situation. The Answer and Counterclaim tells the court that the Defendant wants the divorce.

Failure to answer or file a counterclaim may result in the court granting everything the Plaintiff requests by default.

When both spouses agree to end the marriage, the courts may grant the divorce based solely on affidavits that establish the required residency and grounds of irreconcilable differences. Personal appearances by either spouse are not required. The spouses must sign a notarized Affidavit of Plaintiff and Defendant As to Jurisdiction and Grounds for Divorce, form UJS 319, as well as the following:

> A Stipulation and Settlement Agreement (Without Children), form 324; or

> A Stipulation and Settlement Agreement (With Children), form 325.

The Stipulation and Settlement Agreement spells out the terms and conditions of the division and distribution of property and spousal support, if any, and, if applicable, child support.

If the couple desire to have the court incorporate the Stipulation and Settlement Agreement into the judgment and Decree of Divorce, they must prepare a Judgment and Decree of Divorce (Stipulation and Agreement), form UJS 326, which is signed by the judge.

After 60 days have passed from the delivery of the Summons and Complaint without response by the Defendant, the Plaintiff may file an Affidavit of Default, UJS 320, as well as a Motion for Default Judgment. A copy of the Affidavit of Default as well as a Notice of Intent to Take Default Judgment, UJS 321, is mailed to the Defendant. The Notice of Intent to Take Default Judgment puts the Defendant on notice that the court action will proceed without him or her. If this happens, the court hands down a Decree of Divorce, form UJS 322.

The Plaintiff must also file a Notice of Entry of Decree of Divorce, form UJS 327, which informs the other party that a decree of divorce has been entered.