The Basics of Annulment in South Dakota

Wondering if you can get an annulment? Learn about the grounds for an annulment and how to get one in South Dakota.

In South Dakota, some marriages can be terminated by annulment rather than divorce. This article will explain what an annulment is and its effects. This article also explains what kinds of marriages can be annulled in South Dakota.

Contact a South Dakota family law attorney if you have additional questions after reading this article. It’s also helpful to contact the circuit court for your county to see if they have forms you can use, or if your county has requirements for an annulment besides what is listed below.

Overview of an Annulment

Ending a marriage by annulment is different from ending a marriage by divorce. An annulment means that no valid marriage ever existed; annulment cancels an invalid marriage, while a divorce ends a valid marriage. If there are legal grounds that your marriage was invalid, you may be able to have your marriage annulled.

Grounds For an Annulment

South Dakota has several legal grounds for annulment. To have your marriage annulled you will need to prove one of the following grounds:

  • Bigamy – one spouse has a living wife or husband at the time of marriage
  • Unsound mind – one spouse has a mental disability at the time of marriage, such as retardation or insanity
  • Underage – one spouse was below the legal age to be married
  • Duress – one spouse was forced to get married
  • Fraud – one spouse defrauded the other into getting married
  • Impotence – one spouse physically can’t have sexual intercourse
  • Incest – the spouses are first cousins or more closely related

Some grounds for annulment have additional requirements:

If a spouse wants an annulment because of bigamy, that spouse must file for an annulment while their spouse’s 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.

If a spouse had an unsound mind at the time of marriage, they can’t have their marriage annulled if they 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, you must be at least 18 to get married, or at least 16 with consent from a parent or guardian. If you were underage at the time of marriage but continue to live with your spouse after reaching 18, you won’t be able to have your marriage annulled. Also, you or your legal guardian must file for annulment before age 22.

If you want an annulment because you were forced to get married, you can’t continue to voluntarily live with your spouse after the marriage. You also have to file for annulment within four years of the marriage to be eligible to have it annulled.

If you want your marriage annulled because of fraud, you have to stop living with your spouse after discovering the fraud. You’ll also need to file for annulment within four years of discovering the fraud.

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.

How Do I Get an Annulment?

To get an annulment in South Dakota, you should file a “Complaint for Annulment” in the circuit court for the county where either your or your spouse lives. The spouse asking for the annulment is the “plaintiff,” and the other spouse is the “defendant.” Contact the circuit court clerk’s office for your county and ask if they have a sample complaint for annulment that you can use. A link to contact information for all seven South Dakota circuit courts is below.

The complaint needs to state the date of your marriage, and the city and state where you were married. You’ll need to state the legal grounds why your marriage should be annulled. You’ll also need to list the county where you live and the county where your spouse lives. If any children were born during the marriage, list their names and dates of birth. If you need the court to decide child custody, visitation, child support, alimony, or property division, state that in the complaint as well.

Next, file your complaint with the circuit court clerk’s office, and get a copy of the complaint to serve on your spouse. Your clerk’s office can tell you the different options you have to serve your spouse. There are options to serve an out of state spouse or a spouse you can’t locate.

After your spouse is served with a copy of the complaint, the court will give you a court date. Bring any evidence or witnesses that can help you prove the legal grounds why your marriage should be annulled to the court date. If the judge believes you’ve proven that your marriage should be annulled, the judge will sign an order granting your annulment.

Effect of an Annulment

When the court grants an annulment, it is as though your marriage never existed. An annulment means the court has decided you and your spouse never had a valid 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 within10 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.

Resources

To read the full text of the laws about annulment in South Dakota, see the  South Dakota Codified Laws Chapter 25-3.

Contact information for each of the seven  South Dakota circuit courts is here.

See South Dakota Divorce and Family Law for more information about the divorce process.

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