While many marriages explode into the courtroom, many others manage to disappear quietly through a little-known procedure known as an uncontested divorce. In South Dakota, an uncontested divorce can save you time and energy. You and your spouse may never even need to set foot in a courtroom.
This article will explain the nature of an uncontested divorce and South Dakota uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in South Dakota Defined
South Dakota recognizes that many spouses may prefer a swift and efficient uncontested divorce process rather than seeking a normal divorce. Therefore, like many other states, South Dakota offers an uncontested divorce to spouses who are willing to agree on all of the terms of their divorce.
In South Dakota, an uncontested divorce is known as a divorce by stipulation. A stipulation is a legal term that simply means agreement. A divorce by stipulation is normally accompanied by a legally-binding settlement agreement that lays out the spouses’ agreement in writing.
Requirements for Seeking a South Dakota Uncontested Divorce
To file for uncontested divorce in South Dakota, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced South Dakota divorce attorney or family lawyer.
The first and simplest requirement of a South Dakota uncontested divorce is the residency requirement. To file for any divorce in South Dakota, the filing spouse must be a resident of South Dakota. There is no specific time period for establishing residence, and the filing spouse is not required to intend to remain a resident of the state in the future.
The second requirement for an uncontested divorce is agreement on the grounds for divorce. South Dakota has six at-fault grounds for divorce and one no-fault ground for divorce. An at-fault divorce is a divorce in which one spouse blames the other spouse for destroying the marriage. Generally, spouses seeking an uncontested divorce will not want to allege an at-fault ground for divorce because those grounds are more likely to become contested.1
Most spouses seeking an uncontested divorce will want to file under South Dakota’s no-fault divorce petition for irreconcilable differences. Irreconcilable differences are defined as essentially any grounds that the court determines constitute a sufficient reason not to continue the marriage (reading past the legalese, this basically means any reason). Additionally, if the parties file affidavits affirming the grounds for divorce, the court may grant the divorce without ever requiring the parties to appear in a courtroom.2
The final requirement for seeking a South Dakota uncontested divorce is agreement on the terms if the divorce. As described above, this is a stipulation (or agreement) to the terms of the divorce. The stipulation agreement is normally accompanied by a property settlement agreement, which is a legally-binding contract describing the terms of the divorce.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal settlement agreement. A settlement agreement is NOT a formal divorce. A settlement agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed settlement agreement can serve as the basis for an uncontested divorce, and may be helpful in filling out the required divorce paperwork. Prior to signing any settlement agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
A fully-completed property settlement agreement should address all of the following issues in the divorce:
- Division of all marital property;
- Allocate the payment of all marital debts;
- Division of the proceeds of retirement plans;
- Spousal support (also known as either alimony or spousal maintenance); and
- Child custody, child support, and a child visitation plan, if applicable.
If the spouses do not agree on any of the above issues and those issues come into conflict, the divorce filing may be considered contested, and will take longer to adjudicate because the judge will need to rule on the contested issues.
The Process for Filing for an Uncontested Divorce in South Dakota
Once you have determined which court is the proper court for filing, the general flow of the process is follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly;
- The second step is gathering and filling out all of the proper divorce paperwork. Fortunately, for spouses filing for an uncontested divorce without the assistance of an attorney, you can find sample divorce forms on the South Dakota Unified Judicial System website.3
- Next, the spouses should sit down together and agree on the terms of a property settlement agreement that discusses all of the important terms of the divorce.
- The filing spouse must then file the complaint for divorce in the county in which he or she resides. The filing spouse will then need to serve the non-filing spouse with a copy of the divorce complaint and other required paperwork.
- After receiving service of process, the non-filing spouse will then need to stipulate to the terms outlined in the divorce complaint and marital settlement agreement.
- Next, wait! Once all of the proper divorce paperwork is filed a judge must wait at least sixty days before ruling on the divorce.
- Once the waiting period has elapsed, the judge may or may not choose to require a hearing on the divorce complaint. If the judge does not request a hearing, the judge will simply approve the judgment and decree of divorce. If the judge requires a hearing, the parties must appear in court to reaffirm the terms of the divorce for the judge before he grants the judgment and decree of divorce.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- The at-fault grounds for divorce are: (1) adultery, (2) extreme cruelty, (3) willful desertion, (4) willful neglect, (5) habitual intemperance, and (6) conviction of a felony.See S.D. Codified Laws § 25-4-2.
- See S.D. Codified Laws §§ 25-4-17.1 - 25-4-17.3.
- Divorce for the Self-Represented Litigant, SOUTH DAKOTA UNIFIED JUDICIAL SYSTEM.