Types of Divorce in South Dakota

by Bernadette A. Safrath

When spouses decide to end their marriage, one or both of them must file for divorce. To be eligible to file for divorce in South Dakota, the filing spouse, called the Plaintiff, must be a resident of the state. The divorce petition must be filed in the Plaintiff's county of residence, unless the Defendant, the other spouse, also resides in South Dakota, in which case the petition may be filed in the Defendant's county of residence.

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No Fault Divorce

No-fault divorce means that neither spouse committed any misconduct that lead to the end of the marriage. In South Dakota, the no-fault ground for divorce is called "irreconcilable differences." This means that the spouses have become incompatible and no amount of time or therapy will repair the damage to the marriage. Either spouse can file for a no-fault divorce by submitting a Complaint for Divorce to the Circuit Court located in his county of residence.

Simplified Divorce

Generally, when spouses file for a no-fault divorce, they can take advantage of South Dakota's simplified divorce procedure. They must agree to file jointly, under the no-fault ground of irreconcilable differences. Each spouse must submit an affidavit stating that he or she is a resident of South Dakota and that the reason for the divorce is one of irreconcilable differences. There is a 60-day waiting period until the divorce is granted and a court appearance is not required. A judge will sign the divorce decree after the 60-day waiting period elapses.

Fault Divorce

South Dakota is one of several states that still recognize divorce for fault. This means that a spouse has committed some act of misconduct, or that an incident occurred, which to a breakdown in the marriage. The aggrieved spouse can file the Complaint for Divorce, which must be served on the opposing spouse, and which gives him notice of the divorce.

Grounds for Divorce

There are several fault grounds for divorce available in South Dakota. First, if one spouse commits adultery, the other spouse can file for divorce. South Dakota law defines adultery is actual sexual intercourse with a person who is not one's spouse. Another fault ground for divorce is called abandonment or "willful desertion." This means that one spouse voluntarily left the marital residence for a period of at least one year with the intent not to return. The one-year time period also applies for a spouse seeking a divorce because of the other spouse's "habitual intemperance," which is defined as excessive use of alcohol. A spouse may also file for divorce in South Dakota after the other spouse is convicted of a felony. Last, "extreme cruelty" is also a ground for fault divorce. Extreme cruelty is defined as "grievous" bodily or mental injury inflicted on one spouse by the other during the marriage.