Every state has its own rules and procedures for filing a divorce. Here's what you need to know to get started with your South Dakota divorce.
You must meet a state's residency requirements before you can file for divorce in its courts. To get a divorce in South Dakota, the filing spouse (the "plaintiff") must be a resident of the state at the time the divorce is filed. (S.D. Codified Laws § 25-4-30 (2022).)
It's important to file your divorce in the correct court—filing in the incorrect court could cause delays or dismissal of your divorce. You must file your divorce in the circuit court in the county of residence of either spouse. The non-filing spouse (the "defendant") has the right to have the place of trial changed to the county where they live. (S.D. Codified Laws § 25-4-30.1 (2022).)
South Dakota allows both "no-fault" and "fault-based" divorces. A no-fault divorce is one in which the court doesn't require either spouse to prove that the other's bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other's actions caused (were "grounds for") the failure of the marriage.
No-fault divorces in South Dakota reach resolution faster than fault-based divorces because the spouses don't have to argue about or prove who was responsible for the divorce. To get a no-fault divorce in South Dakota, both spouses must agree that the marriage is over due to irreconcilable differences. (S.D. Codified Laws § 25-4-2(7) (2022).) "Irreconcilable differences" generally means that the spouses can no longer get along—to the point that the marriage is broken and there is no hope of reconciliation.
In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves that the other spouse's behavior caused the marriage to fail. South Dakota has the following fault-based grounds for divorce:
(S.D. Codified Laws §§ 25-4-2, 25-4-17, and 25-4-18 (2022).)
Because filing a fault-based divorce takes longer and is usually more contentious, most divorcing couples prefer to file no-fault divorces.
Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and alimony (spousal support). A contested divorce, on the other hand, is one where the spouses disagree on at least one topic and must ask a court to decide the issues in their divorce.
Uncontested divorces usually reach resolution faster and are less expensive than contested divorces because there's no fighting in court. Instead, the judge needs only to review and approve the spouses' marital settlement agreement and issue a divorce decree.
South Dakota has created forms that you can use for your divorce. However, you'll want to check with the clerk of the court where you plan to file to see if there are different or additional required forms. The basic forms you'll need to begin your South Dakota uncontested divorce include:
If you have minor children, you might have to additional forms and versions of the above forms that are specific to divorcing couples with minor children. Most of these forms are available online or from the court clerk. You can file online using South Dakota's Odyssey guide and file—it walks you through the process and helps you fill out and submit the correct forms.
Along with the right paperwork, you'll have to pay court filing fees. Divorce filing fees in South Dakota are $95 as of 2022.
If you can't afford the filing fees, you can request a waiver by filing a Motion & Order to Waive Filing Fee & Service of Process Fee. If the court grants your motion, you won't have to pay the filing fee or the cost of serving the divorce paperwork on your spouse.
After you file the paperwork, you'll need to provide notice to your spouse of the divorce by "serving" (delivering) copies of what was filed with the court. You can't serve your spouse yourself; you must have someone who's at least 18 years of age and not a party to the case do it.
If your spouse will agree to accept service, you can hand deliver the documents or mail them. Your spouse must sign and return to you a Notice and Admission of Service of Summons form. If you mail the paperwork, you'll also need to complete an Affidavit of Mailing.
When your spouse isn't cooperative, you must have the sheriff's office or a private process server serve the paperwork on your spouse. The sheriff or process server will prepare a proof of service form and return it to you once your spouse has been served. Make a copy of this proof of service for yourself and file the original with the court.
South Dakota's courts provide detailed instructions for serving your spouse.
If you're working with an attorney, your attorney will assess your situation and fill out, file, and serve all the necessary forms. Many divorcing couples can't afford to hire an attorney to handle their entire case, but would like some assistance with completing and filing their forms. If this describes your situation, consider using an online divorce service or finding an attorney who will consult with you on an as-needed basis. Low-income individuals might qualify for reduced-fee or free legal aid.