South Dakota Divorce Handbook

This Handbook Contains
The Complete South Dakota Divorce Law, Information on Divorce,

Child Custody, Child Support, The South Dakota Child Support
Guideline, Property Division, Filing Instructions and Fees,
Easy-To-Use Document Examples
By
Eugene Powell Till
DIVORCE
Do It Yourself
South Dakota
Divorce Handbook
Divorce does not have to be a war between two lawyers. It can be accomplished in a
civilized and amicable manner. The law allows you to represent yourself in court. If you
are able to read and write basic English and understand the information contained in this
handbook, you should be able to do it.
Rapid City
Public Library
610 Quincy St.
Rapid City,
SD 57701
IMPORTANT INFORMATION
Oxford Legal Reform publications are
designed to provide the best available service
for the purposes intended. The information is
provided with the understanding that the pub-
lisher, author, and representatives are in the
business of providing information and educa-
tion and are not engaged in rendering legal
services. If legal advice is required, the
services of a competent legal professional
should be sought.
The content of our guide has been
carefully compiled from sources believed to
be the best and most reliable available, but
accuracy will vary as laws and regulations
change and differing interpretations are de-
veloped.
The publisher, author and representa-
tives shall have neither liability nor respon-
sibility to any person or entity with respect to
any loss or damage caused or alleged to be
caused directly or indirectly by the use of
Oxford Legal Reform documents.
As with any matter of importance, com-
mon sense should prevail. It is strongly
recommended that professional legal advice
be obtained when circumstances dictate the
need.
You are now on your way to gaining a
better understanding of some of the available
options for your situation. Congratulations on
your courage to improve you life.
Copyright, Oxford Legal Reform, 1999
First Printing
Reproduced of any the forms for personal use is authorized. However, any other reproduction in whole or part
without written permission from the publisher is unauthorized.
PRINTED IN THE UNITED STATES OF AMERICA
DISTRIBUTED BY OXFORD LEGAL REFORM
3911 West Chicago St.
Rapid City, SD 57702
Phone: (605) 342-1409
CONTENTS
Page(s)
THE NEED FOR THIS BOOK
1
DIVORCE, ALIMONY& MAINTENANCE, CHILD CUSTODY 2
CHILD'S BILL OF RIGHTS, CHILD SUPPORT
3 - 4
SOUTH DAKOTA CHILD SUPPORT GUIDELINE SCHEDULE
5 - 8
PROPERTY DIVISION 9
DOCUMENTS TO BE PREPARED _
1 0
PHASE ONE - GETTING STARTED
1 1 - 1 2
PHASE TWO
1 3
PHASE FOUR, FIVE AND SIX
1 4
OPTIONAL WORDING FOR STIPULATION AGREEMENT
1 5 - 1 9
EXAMPLE COMPLAINT
2 0 - 2 1
EXAMPLE SUMMONS
2 2 - 2 3
EXAMPLE CERTIFICATE OF SERVICE 2 4
EXAMPLE ADMISSION OF SERVICE
2 5
EXAMPLE PLAINTIFF AFFIDAVIT
2 6 - 2 7
EXAMPLE DEFENDANT AFFIDAVIT
2 8 - 2 9
EXAMPLE STIPULATION AND AGREEMENT
30 - 39
EXAMPLE JUDGMENT AND DECREE OF DIVORCE
40 - 41
EXAMPLE NOTICE OF ENTRY OF JUDGMENT AND DECREE
42
EXAMPLE CERTIFICATE OF SERVICE
43
SOUTH DAKOTA CODIFIED LAWS - CHAPTER 2 5-4
44 -
67
3
THE NEED FOR THIS BOOK
This book is prepared to meet the need for open access to information regarding simple legal services for
those wish to exercise their right to represent themselves. It is not written by a lawyer. The author is an
independent paralegal who has prepared this book to serve as a source of information for the average person
who wishes to prepare his/her own divorce papers. It provides a complete copy of the South Dakota law
regarding divorce, forms for gathering needed information and presents a standard format for document
preparation and filing for a divorce.
DIVORCE Black's Law Dictionary defines divorce as the legal separation of
man and wife, effected by the judgment or decree of a court, and
either totally dissolving the marriage relation, or suspending its
effects so far as concerns the cohabitation of the parties.
SHOULD YOU DIVORCE
No one should make that decision but you. If you and your spouse
believe there is any chance for saving your marriage, this book
should be put aside and all efforts should be made toward working
things out.
If, however, you have decided that there is no way your marriage
can survive, this book can be a valuable tool in making you aware
of how the system works and providing you with the information
necessary for you to do your own work.
CAN YOU PREPARE AND
YES ! The law allows you to represent yourself in
FILE YOUR OWN court without the aid of an attorney. If you are able to read and write
DIVORCE DOCUMENTS ?
basic English and understand the information contained in this
book you should be able to do it. If you can't type, our typing
service can do the typing for you.
LAWYERS Divorce does not have to be a war between two lawyers. Lawyers
are expensive and have been known to introduce an adversarial
approach to the divorce process which can intensify any conflict
which may already exist. They have a tendency to over demand in
favor of their client and make harsh statements that are harmful and
objectionable to both sides. This is usually explained to the client
as justifiable procedure for negotiating.
An Oxford Legal Reform Publication
1
A
4
Terms You Should Know
1. No Fault Divorce: You are not required to prove fault or grounds for divorce beyond
the showing of an irretrievable breakdown of marriage or irreconcilable differences.
Black's Law Dictionary
2. Alimony and Maintenance: Support is available to either spouse from the other.
Award of support is usually viewed as temporary and is established to allow the less
self-sufficient spouse adequate time to become more self-sufficient through educa-
tion or work. Consideration is given to: duration of the marriage; the ability of the
spouse from whom support is sought to meet his or her needs while meeting those of
the spouse seeking support; the financial resources of the spouse seeking mainte-
nance, including marital property apportioned to such spouse and such spouse's
ability to meet his or her needs independently; comparative financial resources of the
spouses, including their comparative earning abilities in the labor market; the age of
the spouses; the physical and emotional conditions of the spouses; the fault of the
spouses during the marriage. Reasonable security may be required to guarantee the
payment of maintenance.
3.
Child Custody:
Both parents are presumed to be equally qualified to be granted
custody of a child unless there is sufficient evidence to the contrary. Joint custody
by both natural parents is not uncommon. The mother is usually considered the
primary care-giver and in the majority of cases is awarded the physical custody of
minor children.
The best interest of the child is given the highest priority. Consideration is
given to: age and sex of the child; the child's preference; which parent now provides
primary care; where does the child now live; their school; their church; any physical
or emotional health problems; special medical needs; who will provide the higher
ethical, moral and spiritual growth; who will provide the most love and affection; has
there been any history of violence or child abuse; which spouse has the better
physical, mental, or moral fitness,
a. Sole Custody: Under sole custody, one parent is awarded both physi-
cal and legal custody. Physical custody is the right to have the child live with the
custodial parent. Legal custody is the right to make all of the major decisions relating
to the upbringing of the child. In most Sole Custody arrangements, the non-custodial
parent is afforded some type of reasonable visitation rights unless there is a danger
of harm to the child. This is usually the form of custody used in the majority of
divorces involving children
2
b. Joint or Shared Custody: Under joint or shared custody both parents are
given a voice in the major decisions involved in the raising of the children. Usually
one parent is awarded sole physical custody with the other parent being allowed
reasonable visitation privileges. Both parents, however, are usually awarded legal
custody which allows both the right to make major decisions which may involve
religious, educational, medical and social circumstances.
4. Child's Bill of Rights: The Wisconsin Supreme Court developed the following Bill
of Rights for Children and they are worthy of consideration in South Dakota:
a.
The right to a continuing relationship with both parents;
b. The right to be treated as an important human being, with unique feelings,
ideas, and desires;
c.
The right to continuing care and guidance from both parents;
d.
The right to know and appreciate what is good in each parent without one
parent degrading the other,
e.
The right to express love, affection, and respect for each parent without having
to strifle that love because of disapproval of the other parent;
f. The right to know that a parent's decision to divorce was not the responsibility
of the child;
g. The right not to be a source of argument between the parents;
h. The right to honest answers about the changing family relationships;
i. The right to be able to experience regular and consistent contact with both
parents and the right to know the reason for any cancellation of time or change
of plans;
j. The right to have a relaxed, secure relationship with both parents without
being placed in a position to manipulate one parent against the other.
5. Child Support: In most cases, the parent who does not have physical custody of a
child must provide child support to the parent who has custody. The State of South
Dakota has established guidelines for determining the level of support required for the
adequate and satisfactory care for children and they are listed in this section. You
would do well to know that the majority of court-ordered child support payments are
neither paid in full nor on time. Nearly one-third of the children entitled to child
support receive no support at all. To assist with this problem, South Dakota has
adopted the Uniform Reciprocal Enforcement of Support Act to enforce the collection
of delinquent child support payments. Support payments may be ordered to be paid
through the court clerk.
Wage withholding orders may also be ordered.
3
Parents of natural as well as adopted minor children have the same legal obligation
to provide adequate support for a child until the child reaches 18 years of age. This
legal duty includes providing food, clothing, shelter, medical care, and education.
The goal is to achieve a fair division of the income of both parents in order to provide
satisfactory support of the children. South Dakota has provided a guideline in
accordance with The Family Support Act of 1988 and it is listed in the following
pages.
Either or both parents may be ordered to provide child support. Exceptions to the
official schedule may be based upon financial conditions of either parent that would
make adherence to the schedule inequitable; income tax consequences; special needs
of the child; income from other persons; effect of custody and visitation provisions;
child care expenses necessary to obtain employment, education, or training; agree-
ments between the parents which provide other forms of support for the direct benefit
of the child; a voluntary reduction in the income of either parent; any other support
obligations of a parent.
Child support can be modified later. The courts always have authority to increase or
decrease the amount of support based upon changed circumstances. A brochure is
available from The South Dakota Department of Social Services which outlines the
procedure.
PLEASE REFER TO THE FOLLOWING 4 PAGES FOR
THE SOUTH DAKOTA CHILD SUPPORT GUIDELINE SCHEDULE
4
South Dakota Child Support Guideline Laws Schedule
Combined
Monthly One Two Three Four Five Six
Net Income Child Children Children Children Children
Children
$1-1,000 $50 $50
$50 $50
S50 $50
$1,050 $74 $75 $76 $77 $78
$78
$1,100 $119 $121 $122 $123 $125
$126
$1,150 $164 $166 $168 $170 $172
$173
$1,200 $209 $212 $214 $216 $219
$221
$1,250 $254 $257 $260 $263 $266 $268
$1,300 $299
$303 $306 $309
$313 $316
$1,350 $322
$348 $352 $356
$360 $363
$1,400 $333
$394
$398
$402
$407 $411
$1,450 $344 $439 $444 $449 $454 $458
$1,500 $355 $485 $490
$495
$501 $506
$1,550 $366 $530
$536 $542
$548 $553
$1,600 $378 $547 $582 $588 $595
$601
$1,650 $389 $563 $628 $635 $642 $348
$1,700 $400 $579 $674 $681 $689 $696
$1,750 $411 $595 $701 $728 $736 $743
$1,800 $422 $611 $719 $774 $783 $791
$1,850 $434 $627
$737
$815 $830 $838
$1,900 $443 $641 $754 $833 $877
$886
$1,950 $452 $654 $769 $849 $921
$933
$2,000 $460 $666 $783 $866 $938
$981
$2,050 $469 $678 $798 $882 $956
$1,023
$2,100 $477 $691 $813 $898 $974 $1,042
$2,150 $485
$703
$828
$914
$991 $1,061
$2,200 $494 $715 $842 $931 $1,009
$1,079
$2,250 $502 $728 $857 $947 $1,026
$1,098
$2,300 $510 $739 $870 $962 $1,043
$1,116
$2,350 $515
$745 $878
$970 $1,051 $1,125
$2,400 $520 $752
$885
$978 $1,060 $1,134
$2,450 $524 $758 $892 $986
$1,068 $1,143
$2,500 $529 $765 $899 $993 $1,077
$1,152
$2,550 $534 $771 $906 $1,001 $1,085 $1,161
$2,600 $538
$778
$913 $1,009 $1,094 $1,171
$2,650 $543 $784 $921 $1,017
$1,103 $1,180
$2,700 $548 $791 $928 $1,025
S1,111
$1,189
$2,750 $555 $800 $938 $1,037
$1,124 $1,203
$2,800 $562 $810 $950 $1,050 $1,138
$1,217
$2,850 $569 $820 $961 $1,062 $1,151
$1,232
$2,900 $576.
$830 $973 $1,075 $1,165 $1,247
$2,950 $583 $840
$984 $1,088 $1,179 $1,252
$3,000 $590 $850 $996
$1,100 $1,193 $1,276
$3,050 $598 $860 $1,007
$1,113 $1,207 $1,291
$3,100 $605 $870 $1,019 $1,126
$1,120 $1,306
$3,150 $611 $880 $1,030 $1,138
$1,234 $1,320
$3,200 $618
$889 $1,041 $1,150 $1,247
$1,334
$3,250 $624 $898 $1,052 $1,163 $1,260
$1,348
$3,300
$630 $907 $1,063 $1,175 $1,273
$1,363
$3,350 $637 $917 $1,074
$1,187 $1,287
$1,377
$3,400 $643 $926 $1,085 $1,199
$1,300 $1,391
$3,450 $649 $935 $1,096 $1,211
$1,313 $1,405
$3,500 $656 $944 $1,107 $1,223
$1,326 $1,419
$3,550 $662 $954 $1,118
$1,236 $1,340 $1,433
$3,600
$670 $965 $1,131
$1,249 $1,354
$1,449
$3,650
$677 $975 $1,143
$1,263 $1,369
$1,465
$3,700 $685
$986 $1,155 $1,276
$1,384 $1,480
$3,750 $692 $997
$1,167 $1,290
$1,398 $1,496
$3,800
$700 $1,007 $1,180
$1,303
$1,413 $1,512
$3,850
$707 $1,018 $1,192
$1,317 $1,428
$1,527
5
Combined
Monthly One Two Three Four Five
Six
Net Income Child Children Children Children Children
Children
$3,900 $715 $1,028 $1,204 $1,330 $1,442
$1,543
$3,950 $723 $1,039 $1,216 $1,344 $1,457
$1,559
$4,000 $729 $1,049 $1,227 $1,356
$1,470
$1,573
$4,050 $736 $1,058 $1,238 $1,369
$1,483
$1,587
$4,100 $742 $1,067 $1,249 $1,381
$1,497
$1,601
$4,150 $749 $1,077 $1,261 $1,393
$1,510
$1,616
$4,200 $755 $1,086 $1,272 $1,405
$1,523 $1,630
$4,250 $762 $1,096 $1,283 $1,417
$1,536 $1,644
$4,300 $768 $1,105 $1,294 $1,429 $1,549
$1,558
$4,350 $775 $1,114 $1,305 $1,442 $1,563 $1,572
$4,400 $781 $1,124 $1,316 $1,454 $1,576 $1,686
$4,450
$788 $1,133 $1,327 $1,466 $1,589 $1,700
$4,500 $794
$1,143 $1,338 $1,478 $1,602 $1,414
$4,550 $801 $1,152 $1,349 $1,490
$1,615 $1,729
$4,600
$807 $1,161 $1,359 $1,502 $1,628 $1,742
$4,650 $812 $1,158 $1,368 $1,512 $1,639
$1,754
$4,700 $817 $1,176 $1,377 $1,522 $1,650 $1,765
$4,750 $822 $1,183 $1,386 $1,532 $1,661 $1,777
$4,800 $826 $1,190 $1,396 $1,542 $1,672 $1,789
$4,850 $831 $1,198 $1,405 $1,552 $1,683 $1,800
$4,900 $836 $1,205 $1,414 $1,562 $1,694 $1,812
$4,950 $841
$1,213
$1,423
$1,572 $1,705 $1,824
$5,000 $846 $1,220 $1,432 $1,583 $1,716
$1,836
$5,050 $851 $1,228 $1,441 $1,593 $1,727 $1,847
$5,100 $856 $1,235 $1,451 $1,603 $1,737 $1,859
$5,150 $861 $1,243 $1,460 $1,613 $1,748 $1,871
$5,200 $866 $1,250 $1,469 $1,623
$1,759 $1,883
$5,250 $871 $1,257 $1,478 $1,633 $1,770 $1,894
$5,300 $876 $1,265 $1,487 $1,643 $1,781 $1,906
$5,350 $880 $1,272 $1,496 $1,653 $1,792 $1,918
$5,400 $885 $1,280 $1,505 $1,663 $1,803 $1,929
$5,450 $891 $1,288 $1,516 $1,675 $1,816 $1,943
$5,500
$898 $1,298 $1,527 $1,687 $1,829 $1,957
$5,550 $904 $1,307 $1,538 $1,699 $1,842 $1,971
$5,600 $911 $1,316 $1,549 $1,711 $1,855 $1,985
$5,650 $917 $1,326 $1,560 $1,723 $1,868
$1,999
$5,700
$923 $1,335 $1,571 $1,735 $1,881 $2,013
$5,750 $930 $1,344
$1,582 $1,748 $1,894 $2,027
$5,800
$936
$1,353
$1,592 $1,760 $1,907 $2,041
$5,850 $943 $1,363 $1,603 $1,772
$1,921 $2,055
$5,900 $949 $1,372 $1,614 $1,784 $1,934
$2,069
$5,950 $955 $1,381 $1,625 $1,796 $1,947
$2,083
$6,000
$962 $1,390 $1,636 $1,808 $1,960 $2,097
$6,050 $968
$1,400 $1,647 $1,820 $1,973 $2,111
$6,100 $975 $1,409 $1,658
$1,832 $1,986 $2,125
$6,150 $981 $1,418 $1,669 $1,844
$1,999 $2,139
$6,200
$987 $1,427 $1,680 $1,856 $2,012
$2,153
$6,250
$994 $1,437 $1,691 $1,869 $2,026
$2,167
$6,300 $1,000
$1,446 $1,702 $1,881 $2,039
$2,181
$6,350 $1,007 $1,455
$1,730 $1,893 $2,052
$2,195
$6,400 $1,013 $1,465 $1,724
$1,905 $2,065 $2,209
$6,450 $1,019 $1,474 $1,735
$1,917 $2,078 $2,223
$6,500 $1,026 $1,483 $1,746
$1,929 $2,091 $2,238
$6,550 $1,032 $1,492 $1,757
$1,941 $2,104 $2,252
$6,600
$1,039 $1,502 $1,768
$1,953 $2,117 $2,266
$6,650
$1,045 $1,511 $1,779
$1,965 $2,130
$2,280
$6,700
$1,051 $1,520 $1,790
$1,977 $2,144 $2,294
$6,750 $1,058 $1,529
$1,801 $1,990
$2,157 $2,308
$6,800 $1,064
$1,539 $1,811 $2,002
$2,170
$2,322
6
Combined
Monthly
Net Income
One
Child
Two
Children
Three
Children
Four
Children
Five
Children
Six
Children
$6,850 $1,071 $1,548 $1,822
$2,014 $2,183
$2,336
$6,900 $1,077
$1,557
$1,833
$2,026 $2,196 $2,350
$6,950 $1,083 $1,567 $1,844
$2,038 $2,209 $2,364
$7,000 $1,090 $1,576 $1,855
$2,050 $2,222 $2,378
$7,050 $1,096 $1,585 $1,866 $2,062
$2,235 $2,392
$7,100 $1,102 $1,594 $1,877 $2,074
$2,248 $2,405
$7,150 $1,108 $1,602 $1,886 $2,084 $2,259 $2,417
$7,200
$1,113 $1,610 $1,895 $2,094 $2,270 $2,429
$7,250 $1,118 $1,617
$1,904
$2,104
$2,281 $2,441
$7,300 $1,124 $1,625 $1,914 $2,115 $2,292 $2,453
$7,350 $1,129 $1,633 $1,923 $2,125 $2,303 $2,465
$7,400 $1,135 $1,641 $1,932 $2,135 $2,315 $2,477
$7,450 $1,140 $1,649 $1,942 $2,146 $2,326 $2,489
$7,500
$1,145 $1,657 $1,951 $2,156 $2,337 $2,500
$7,550 $1,151 $1,664 $1,960
$2,166 $2,348
$2,512
$7,600 $1,156 $1,672 $1,970 $2,176
$2,359
$2,524
$7,650 $1,161
$1,680 $1,979 $2,187 $2,370 $2,536
$7,700 $1,167 $1,688 $1,988 $2,197 $2,381 $2,548
$7,750 $1,172
$1,696 $1,997 $1,207 $2,393 $2,560
$7,800 $1,178 $1,704 $2,007 $2,217 $2,404 $2,572
$7,850 $1,183 $1,712 $2,616 $2,228 $2,415
$2,584
$7,900 $1,188 $1,719 $2,025 $2,238 $2,426
$2,596
$7,950 $1,194 $1,727 $2,035 $2,248 $2,437
$2,608
$8,000 $1,199 $1,735 $2,044 $2,258 $2,448 $2,620
$8,050 $1,205 $1,743 $2,053 $2,269 $2,459 $2,632
$8,100 $1,210 $1,751 $2,062 $2,279 $2,471 $2,643
$8,150 $1,215 $1,759 $2,072
$2,289 $2,482 $2,655
$8,200 $1,221 $1,767 $2,081 $2,300 $2,493
$2,667
$8,250 $1,226 $1,774 $2,090 $2,310 $2,504 $2,679
$8,300
$1,231 $1,782 $2,100 $2,320 $2,515 $2,691
$8,350
$1,237 $1,790 $2,109 $2,330 $2,526 $2,703
$8,400 $1,242 $1,798
$2,118 $2,341 $2,537 $2,715
$8,450 $1,248 $1,806 $2,128
$2,351 $2,548 $2,727
$8,500
$1,253 $1,814 $2,137 $2,361 $2,560 $2,739
$8,550 $1,258 $1,821
$2,146 $2371 $2,571 $2,751
$8,600 $1,264 $1,829
$2,155 $2,382 $2,582 $2,763
$8,650 $1,269
$1,837 $2,165 $2,392 $2,593 $2,775
$8,700 $1,275 $1,845
$2,174 $2,402 $2,604 $2,786
$8,750 $1,280 $1,853
$2,183 $2,413 $2,615 $2,798
$8,800 $1,285 $1,861 $2,193
$2,423 $2,626 $2,810
$8,850 $1,291 $1,869 $2,202
$2,433 $2,638 $2,822
$8,900 $1,296 $1,876 $2,211 $2,443
$2,649 $2,834
$8,950 $1,301
$1,884 $2,221 $2,454 $2,660
$2,846
$9,000 $1,307 $1,892
$2,230 $2,464 $2,671
$2,858
$9,050 $1,312 $1,900 $2,239
$2,474 $2,682 $2,870
$9,100
$1,318 $1,908 $2,248 $2,484
$2,693 $2,882
$9,150
$1,323 $1,916 $2,258 $2,495
$2,704 $2,894
$9,200 $1,328
$1,924 $2,267 $2,505
$2,715 $2,906
$9,250 $1,334 $1,931
$2,276 $2,515 $2,727 $2,918
$9,300 $1,339 $1,939
$2,286 $2,526
$2,738
$2,929
$9,350 $1,345 $1,947 $2,295
$2,536 $2,749 $2,941
$9,400
$1,350 $1,955 $2,304
$2,546 $2,760 $2,953
$9,450 $1,355
$1,963 $2,313
$2,556 $2,771 $2,965
$9,500 $1,361
$1,971 $2,323
$2,567 $2,782 $2,977
$9,550 $1,366
$1,978 $2,332
$2,577 $2,793 $2,989
$9,600 $1,371 $1,986
$2,541
$2,587 $2,805
$3,001
$9,650
$1,377 $1,994
$2,351 $2,597
$2,816 $3,013
7
L "
L
L "
Combined
Monthly
Net Income
One
Child
Two
Children
Three
Children
Four
Children
Five
Children
Six
Children
$9,700
$1,382 $2,002 $2,360
$2,608 $2,827
$3,025
$9,750
$1,388 $2,010 $2,369
$2,618 $2,838
$3,037
$9,800
$1,393 $2,018 $2,379
$2,628 $2,849
$3,049
$9,850
$1,398 $2,026
$2,388 $2,638 $2,860
$3,060
$9,900 $1,404
$2,033 $2,397 $2,649
$2,871
$3,072
$9,950
$1,409 $2,041 $2,406 $2,659
$2,883
$3,084
$10,000
$1,415 $2,049
$2,416 $2,669 $2,894
$3,096
L "
L "
L "
C
PLAN MASTER CAN DO THE TYPING FOR YOU
CALL (605) 342-1409
J
8
6.
Property Division:
The division of property can be one of the most important
economic decisions you will make. You should spend some time and effort
in preparing a complete inventory of all your family, separate and business
property.
There may be a tendency to not care who gets what in order to
expedite the procedure, but this could be a major mistake.
Property to be considered should include: bank accounts; savings & loan
accounts; credit union accounts; certificates of deposit; investment accounts;
stock options; retirement accounts; stocks; cash value in insurance policies;
residences; timeshares; vacation homes; vacant lots; businesses; automo-
biles; boats; motorcycles; airplanes; trailers; RVs; monies owed to your
family or business; personal and business debts (credit cards and charge
accounts); mortgages.
South Dakota is an "equitable distribution" state. Property acquired during
the course of a marriage is usually considered to be owned in equal or
equitable shares by both parties, regardless of how it is titled. Spouses are
given credit for home-making duties and consideration is given to compen-
sation for sacrifices of a spouse who has assisted the other in obtaining an
educational degree.
The marriage is usually treated as an equal partnership
when the division of property is considered.
Marital Property
is normally that property which the couple acquired during
the course of their marriage which should be shared equally.
Separate property
is normally that property which each spouse owned
individually prior to their marriage, acquired by individual gift during the
marriage, or received by inheritance.
Debts or obligations are treated similarly.
Those incurred prior to the
marriage belong to the spouse who brought them into the marriage.
You are now ready to prepare documents. Remember !! If you
need help typing, call Plan Master at 342-1409
9
Documents
Documents Preparation: There will eventually be at least nine (9) basic documents
which will need to be prepared to complete your divorce. Only the first three will need
to be completed to get things started:
COMPLAINT
This is the initial document by which you as the Plaintiff start
the divorce action.
SUMMONS This is the document which requires the Defendant to answer
the Complaint.
CERTIFICATE OF
SERVICE In this document you certify that you sent a copy of the
Complaint and Summons to your spouse.
ADMISSIO N This document is prepared by the Defendant to acknowledge
that the Complaint and Summons have been received.
AFFIDAVITS The Plaintiff and Defendant each prepare their own affidavit
to confirm by oath in front of a notary that the information
contained in the Complaint is true.
STIPULATION
This document is the Agreement which may be prepared
jointly by the Plaintiff and Defendant.
ADMISSION This document is prepared by the Defendant to acknowledge
that the Judgment and Notice have been received.
This document states the decision of the court.
This document notifies the Defendant that the court has
rendered a judgment.
JUDGMENT
NOTICE
PHASE
1
PHASE
2
PHASE
3
PHASE
4
PHASE
5
PHASE
6
10
Let's Get Started
PHASE O NE - LET'S GET STARTED
O nly three documents are needed to get started
Step 1 - You will need the following information to prepare your documents.
Also, if children are involved, a "Child Support Order Filing Data" form will be
furnished by the clerk at the court when you deliver your documents for filing. I:
can be filled out right there if you have the following information with you:
1. The county in which you live.
2. The number of the Circuit Court where you will file for divorce.
3.
Your full name.
4. Your social security number.
5. Your complete address & phone at: home, (mailing), and work.
6. Your spouse's full name.
7. Spouse's social security number.
8. Spouse's complete address & phone at: home, (mailing), and work.
9. What date you and your spouse were married.
10. Where you and your spouse were married.
11.
The name, birthdate and social security no. for each of your
children.
12.
Who do you wish to have custody of your children.
Step 2 - Pull out "Complaint", "Summons" and "Certificate of Service" examples
found on pages 20 - 24. (If you wish to preserve the book pages, you may make
copies for your work sheets) Pencil-in the information pertaining to your situation
everywhere you find bold print.
Once you have all the information completely
penciled in, you are ready to start typing your own documents.
When you are
convinced that your documents look like the examples, read them over a few more
times looking for any typing errors. After you are satisfied that your documents
are ready, make 3 copies of each of your completed documents.
1.
Copy #1 is for filing at the court house.
2. Copy #2 is to be sent to your spouse.
3. Copy #3 is for your files.
11
To legally start the divorce you must:
1.
Have the summons and complaint given to your spouse by the sheriff or a process
server
O R
2. Your spouse must complete the Admission of Service from on page 25.
John J. Delaney
Civ Ct Judge
Phase One - Step Two Continued
Take all your documents to the courthouse for filing and hand them to the clerk at
the divorce section, along with a filing fee of $60.
If children are involved the clerk will hand you a "Child Support Order Filing Data"
form. If you have all the information listed in Step #1 on the previous page, you will
have all the information needed to complete the form.
Since most people hire an attorney to do this work, the clerk may check your
documents very closely to insure that you have made no mistakes. They have been
instructed to give no advice or instructions to anyone which could be considered
"giving legal advice" and in order to be safe, they will normally be very cautious in
talking with you. Please don't misinterpret this to mean that they do not wish to help
you or are unwilling to be of assistance. They simply are not allowed to. If your
documents are acceptable, they will assign a Case Number and either stamp the
number on your copies of the documents or have you write the number in. They will
keep a copy (Copy #1) and return all the others to you..
Copy #2
You may have the
Snenrr aenver this for you at an approximate cost of $25 if you wish.
Copy #3 of the completed Complaint, Summons and Certificate of Service is to be
kept with your other divorce documents in a personal file.
Remember !!
Your Summons contains a Temporary Restraining Order that requires you and your
spouse to:
1.
Restrained from transferring, encumbering, concealing or in any way
dissipating or disposing of any marital assets, without the written consent of the other
party or an order of the Court, except as may be necessary in the usual course of
business or for the necessities of life. You are to notify the other party of any proposed
extraordinary expenditures and to account to the Court for all extraordinary expen-
ditures made after the Temporary Restraining Order is in effect;
2.
Restrained from molesting or disturbing the peace of the other party.
3. Restrained from removing any minor child of the parties from the state
without the written consent of the other party or an order of the Court.
12
PHASE ONE, TWO
You have now completed Phase One. You have done all that is necessary to start the
Divorce process.
PHASE TWO
This phase is actually to be completed by your spouse and may be filed together with
the Phase One documents. Your spouse is required to acknowledge receipt of your
Complaint and Summons as soon as possible. This may be done by the spouse using
the "Admission of Service" example found on page 25. You may wish to make
copies of the example document and share it with your spouse. The Spouse must
get all copies of his/her documents notarized. ( Notary service is usually free at banks)
Distribution of the three copies should be made as described in Phase One. Copy #1
may be sent or hand carried to the court and Copy # 2 may be sent or hand carried to
your spouse. You keep Copy #3
PHASE THREE
The Plaintiffs and Defendant's Affidavit may to be prepared and filed at the same
time as the Phase One documents if you wish. Each of you is responsible for preparing
and filing your own documents. You may wait for a few days after the Complaint is
filed if you wish , Just as you did for Phase One, pull out "Plaintiffs and Defendant's
Affidavit" examples found on pages 26 -29. (If you wish to preserve the book pages,
you may make copies for your work sheets) Pencil-in the information pertaining to
your situation everywhere you find bold print. Once you have all the information
completely penciled in, you are ready to start typing your own document. When you
are convinced that your document looks like the example, read it over a few more
ti
mes looking for any typing errors. After you are satisfied that it is ready, make 3
copies of each page. Get all copies notarized. (Notary service is usually free at banks)
Distribution of thethree copies should be made as described in the Phase One. Copy
#1 may be sent or hand carried to the court and Copy # 2 may be sent or hand carried
to your spouse. You keep Copy #3.
13
PHASE FOUR
PHASE FO UR
The "Stipulation and Agreement" is the Agreement
between you and your spouse
regarding Alimony, Maintenance, Child Custody, Child Support, Property Division
and other important matters which you wish to have settled by the court. You should
be very careful in preparing this document to state exactly what you want to have
happen. Please read through the optional wording listed on pages 15 - 19 which
address some of these matters. Pick out those which best describe your agreement.
Change the wording or make up your own wording. This document is to be signed by
both you and your spouse. Unless there is already a total agreement between you and
your spouse, you may wish to take a little more time in preparing this document. Just
as you did for Phase One, pull out the "Stipulation and and Agreement" examples
found on pages 30 - 40. (If you wish to preserve the book pages, you may make copies
for your work sheets) Pencil-in the information pertaining to your situation
everywhere you find bold print. Once you have all the information completely
penciled in, you are ready to start typing your own documents. When you are
convinced that your document looks like the example, read it over a few more times
looking for any typing errors. After you are satisfied that it is ready, make 3 copies
of each page. Get all copies notarized. Distribution of the three copies should be
made as described in the Phase One. Copy #1 may be sent or hand carried to the court
and Copy # 2 may be sent or hand carried to your spouse. You keep Copy #3.
PHASES FIVE AND SIX
The "Judgment, Notice and Admission" represent the action which finalizes your
divorce. The "Judgment" represents the decision of the court, which will normally be
the same as the agreement contained in your "Stipulation and Agreement", unless the
judge determines that some corrections, changes, additions or deletions should be
made. If there are any, the court will let you know. Just as you did for Phase One,
pull out the "Judgment, Notice and Admission" examples found on pages 40 -43. (If
you wish to preserve the book pages, you may make copies for your work sheets)
Pencil-in the information pertaining to your situation everywhere you find bold print
and make any necessary corrections as instructed by the court. Leave blank lines for
dates so that the court may enter the date of the judgment. The "Notice and
Admission" should be dated on or after the judgment date. Once you have all the
information completely penciled in, you are ready to start typing your own document.
When you are convinced that your document looks like the example, read them over
a few more times looking for any typing errors. After you are satisfied that they are
ready, make 3 copies of each page. Get all copies notarized. (Notary service is usually
free at banks) Distribution of the three copies should be made as described in Phase
One. Copy #1 may be sent or hand carried to the court and Copy # 2 may be sent or
hand carried to your spouse. You keep Copy #3.
YOU ARE DONE !!!!
14
Optional Wording For The Stipulation and Agreement
SOLE CUSTODY AND VISITATION CLAUSE BASIC AGREEMENT)
The parties agree that it is in the best interests of our child[ren] that the
Plaintiff have
sole physical and legal custody of the child[ren]. The parties also agree that the other
parent has the right to be with the child[ren] on a frequent and liberal basis through
reasonable visitation, at such times as the parties and the child[ren] can agree upon.
The parties agree that they will share as equally as possible the right to be with the
child[ren] on holidays, birthdays, and during the child[ren]'s school vacations. The
parties agree that the child[ren]'s time with eitherpartie should not interfere with their
attendance at school. The parties also agree that the parent with custody should have
the right to make the major decisions regarding the care and up-bringing of the
child[ren], but that the other parent has the right to be notified of any major decisions.
SOLE CUSTODY AND VISITATION CLAUSE (WITH VISITATION
SCHEDULE)
The parties agree that it is in the best interests of our child[ren] that the
Plaintiff
have
sole physical and legal custody of our child[ren]. The parties also agree that the other
parent has the right to be with our child[ren] on a frequent and liberal basis through
reasonable visitation, at such times as the parties and the child[ren] can agree upon.
If in the future the parties are unable to agree upon visitation, the
Defendant will have
the right to be with our child[ren] as follows:
(A).
On the following holidays during even-numbered years:
(B). On the following holidays during odd-numbered years:
(C).
On the following dates and times each [or every other] weekend:
(D).
On the following dates and times during each [or every other] week:
(E).
For the following vacation periods each year:
The parties agree that our child[ren]'s time with either party should not interfere with
attendance at school. The parties also agree that the parent with custody should have
the right to make the major decisions regarding the care and up-bringing of our
child[ren], but that the other parent should have the right to be notified of any major
decisions.
1 5
F
CUSTODY AND VISITATION CLAUSE (JOINT LEGAL AND SOLE
PHYSICAL CUSTODY)
The parties agree that it is in the best interests of our child[ren] that both parties have
joint legal custody of our child[ren]. The parties also agree that it is in the best interests
of the child[ren] that the Plaintiff have sole physical custody of our child[ren]. The
parties acknowledge that the child[ren] presently live[s] with the Plaintiff and that
the actual physical residence of our child[ren] may be changed at any time as the
parties may mutually agree.
All decisions pertaining to the education, discipline, health, extracurricular and
summer activities, religious training, medical and dental care, and welfare of the
child[ren] will be decided by both parties after reasonable and adequate discussion.
The parties also agree that the parent with physical custody shall have control over
the minor day-to-thy decisions affecting the child, including any medical or dental
emergencies. The parties agree that if, after reasonable attempts, they are unable to
reach an agreement on any of the decisions affecting the child[ren], the parties will
jointly seek professional mediation to resolve the differences.
The parties also agree that each has the right to know of any circumstances or
decisions that affect the child[ren] and that each of the parties has the right to any
medical, dental, or school records of the child [ren]. Neither party will do anything to
hamper or interfere with the natural and continuing relationship between the child[ren]
and the other parent.
The parties realize that the well-being of the child[ren] is of paramount importance
and, therefore, the parties agree that the child[ren] should have as much contact as
possible with the parent that does not have physical custody and that our child[ren]
may visit that parent as often as may be agreed upon. Although visitation may be
scheduled more often, the parent that does not have physical custody will have the
right to be with our child[ren] at least as follows:
(A). On the following holidays during even-numbered years:
(C). On the following dates and times each [or every other] weekend:
(D). On the following dates and times during each [or every other] week:
(E). For the following vacation periods each year:
16
1
-1
.a.
.
L
The parties additionally agree to use their very best efforts to insure that the child[ren]
receive the most care, love, and affection possible from both parents throughout their
entire childhood.
CUSTODY ANDVISITATIO N
CLAUSE (JOINT LEGAL AND PHYSICAL
CUSTODY)
The parties agree that it is in the best interests of the child[ren] that both parties have
joint legal and physical custody of the child[ren]. The parties also agree that it is in
the best interests of the child[ren] that the home of the Plaintiff be the primary
residence of the child[ren]. Both parties acknowledge that the child[ren] presently
live[s]
with the * and that the actual physical residence of the child[ren] may be
changed at any time as we may mutually agree.
All decisions pertaining to the place of residence, discipline, education, health,
extracurricular and summer activities, vacations, religious training, medical and
dental care, and welfare of the child[ren] will be decided by both parties after
reasonable and adequate discussion. The parties also agree that the parent with
physical custody shall have control over the minor day-to-day decisions affecting the
child, including any medical or dental emergencies. The parties agree that if, after
reasonable attempts, they are unable to reach an agreement on any of the decisions
affecting the child[ren], the parties will jointly seek professional mediation to resolve
our differences.
The parties also agree that they have the right to know of any circumstances or
decisions that affect the child[ren] and that each party has the right to any medical,
dental, or school records of our child[ren]. Neither party will do anything to hamper
or interfere with the natural and continuing relationship between the child[ren] and
the other parent.
The parties agree that the child[ren] will be known by the last name of Smith .
The parties agree that frequent and continuing contact with both parents is vital to the
child[ren], and therefore both parties agree that neither will permanently remove the
child[ren] from this state without the express written permission of the other parent.
17
The parties realize that the well-being of the child[ren] is of paramount importance
and, therefore, both agree that the child[ren] should have as much contact as possible
with the parent that does not have physical custody and that the child[ren] may visit
that parent as often as may be agreed upon. Although contact may be scheduled more
often, the parent that does not live in the primary physical residence of the child[ren]
will have the right to be with the child[ren] at least as follows:
(A). On the following holidays during even-numbered years:
(C).
On the following dates and times each [or every other] weekend:
(D). On the following dates and times during each [or every other] week:
(E). For the following vacation periods each year:
The parties additionally agree to use their very best efforts to insure that the child[ren]
receive the most care, love, and affection possible from both parents throughout their
entire childhood.
BASIC MONTHLY CHILD SUPPORT CLAUSE
[Use if necessary:] The parties agree to file a joint income tax return for the current
year.
[Use if you have children:] The parties also agree that the Plaintiff
may claim the federal dependency tax exemption for our child[ren].
MARITAL SETTLEMENT AGREEMENT NAME CHANGE CLAUSE
The parties agree that, in the event of divorce or dissolution of marriage, the Wife
desires to and shall have the right to be known by the name of Mary Joy Smith.
The parties also agree that, in the event of divorce or dissolution of marriage, our
child[ren] will be known by the last name of Mary Joy Smith.
ADDITIONAL MANDATORY MARITAL SE1'1'LEMENT AGREEMENT
CLAUSE
The parties desire that, in the event of their divorce or dissolution of marriage, this
marital settlement agreement be approved and merged and incorporated into any
subsequent decree or judgement for divorce or dissolution of marriage and that, by
the terms of the judgement or decree, both parties be ordered to comply with the terms
of this agreement, but that this agreement survive.
18
The parties have prepared this agreement cooperatively and each has fully and
honestly disclosed to the other the extent of their assets, income, and financial
situation. The parties have each completed Financial Statements which are attached
and incorporated by reference..
The parties each understand that they have the right to representation by separate
lawyers. Each fully understand their rights and each consider the terms of this
agreement to be fair and reasonable. Both parties agree to execute and deliver any
documents, make any endorsements, and do any and all acts that may be necessary
or convenient to carry out all of the terms of this agreement.
The parties agree that this document is intended to be the full and entire settlement
and agreement between us regarding our marital rights and obligations and that this
agreement should be interpreted and governed by the laws of the State of South
Dakota .
The parties also agree that every provision of this agreement is expressly made
binding upon the heirs, assigns, executors, administrators, successors in interest,
and representatives of each parties.
19
EXAMPLE DOCUMENTS - Complaint
STATE O F SO UTH DAKO TA)
IN THE CIRCUIT COURT
) SS
COUNTY OF
PENNINGTO N) SEVENTH JUDICIAL CIRCUIT
MARY JO Y JO NES )
SSN: 048-48-2982 Plaintiff, )
File No.
)
-vs- )
) COMPLAINT
JO HN JAY JO NES )
SSN: 062-50-3984
Defendant. )
Plaintiff, for her cause of action, states and alleges:
I.
Plaintiff is a resident of Pennington County, South Dakota for the purposes of
bringing this action.
II.
Plaintiff and Defendant were legally married on the 4th day of June, 1983, at
Jacksonville, Florida and at all times since have been, and are now, husband and wife.
III.
As a result of the marriage, the parties have the following three (3) minor
children, namely: James Paul Jones born December 16, 1984, Mark William Jones
born April 17, 1986 and Kristine Elizabeth Jones born
May 27,
The Plaintiff
is not now pregnant.
IV
Both parties are fit and proper persons to have joint custody of the minor
children.
20
EXAMPLE DOCUMENTS - Complaint
V.
The parties have irreconcilable differences as defined in SDCL 25-4-17.1.
VI.
During their marriage, Plaintiff and Defendant have accumulated various items
of property and debts, an equitable division of which is required.
WHEREFORE, Plaintiff prays:
1.
That the Plaintiff be granted full and absolute divorce from the Defen-
dant;
2. That joint custody of the children be granted to the parties;
3.
That the Court determine the child support to be paid;
4. That the Court make an equitable division of the various items of property
and debts accumulated by the parties;
5. That the court grant such other relief as it deems just and proper.
DATED this 25th day of June, 1998 .
Mary Joy Jones, Plaintiff
8995 Timberline Road
Rapid City, South Dakota
(605) 342-1432
21
EXAMPLE DOCUMENTS - Summons
STATE OF SOUTH DAKOTA) IN THE CIRCUIT COURT
) SS
CO UNTY O F PENNINGTO N) SEVENTHJUDICIAL CIRCUIT
MARY JO Y JO NES )
SSN: 048-48-2982 Plaintiff, ) File No.
)
-vs- )
) SUMMONS
JO HN JAY JO NES )
SSN:
062-50-3984 Defendant. )
THE STATE OF SOUTH DAKOTA TO THE ABOVE NAMED DEFENDANT:
YOU ARE SUMMONED AND REQUIRED to answer the Complaint of the
above-named Plaintiff, seeking absolute divorce from you, a copy of which Complaint
is hereto attached and herewith served upon you, and to serve a copy of your answer
to said Complaint upon the subscriber at: 8995 Timberline Road, Rapid City, South
Dakota 57702, within thirty (30) days after service of this Summons, exclusive of the
day of service.
IF YOU FAIL TO DO SO, the Plaintiff in this action will take judgment
against you by default as requested in Plaintiff's Complaint after sixty (60) days
have elapsed from the completed service of said summons and Complaint.
NOTICE:
South Dakota law provides that upon the filing of a Complaint for divorce or
separated maintenance and upon personal service of the Complaint and Summons on
the Defendant, a Temporary Restraining Order shall be in effect against both parties
22
EXAMPLE DOCUMENTS - Summons
until the
final Decree is entered, the Complaint is dismissed, or until further order of
the Court. Either party may apply to the Court for the further temporary orders
of modification or revocation of the Order modification or revocation of the Order.
TEMPORARY RESTRAINING ORDER
1.
Restrained from transferring, encumbering, concealing or in any way
dissipating or disposing of any marital assets, without the written consent of the
other party or an order of the Court, except as may be necessary in the usual course
of business or for the necessities of life. You are to notify the other party of any
proposed extraordinary expenditures and to account to the Court for all extraordi-
nary expenditures made after the Temporary Restraining Order is in effect;
2.
Restrained from molesting or disturbing the peace of the other party.
3. Restrained from removing any minor child of the parties from the state
without the written consent of the other party or an order of the Court.
DATED this 25th day of June, 1998.
L
23
EXAMPLE DOCUMENTS - Certificate of Service
CERTIFICATE OF SERVICE
I, Mary Joy Jones,
hereby certify that I served a true and correct copy of the
foregoing Complaint and Summons, to the Defendant in this matter, by way of U. S.
Certified Mail, Return Receipt Requested, to the said addressee at the following
address:
John Jay Jones
1920 North 7th Street, Apt. 7-A
Rapid City, South Dakota 57701
24
EXAMPLE DOCUMENTS - Admission of Service
) SS
COUNTY OF PENNINGTON) SEVENTH JUDICIAL CIRCUIT
MARY JOY JONES
SSN:0
4
8-48-2982 Plaintiff,
-vs-
JOHN JAY JONES
SSN: 062-50-3984 Defendant.
Personal service of the enclosed SUMMONS IN ACTION FOR DIVORCE
AND COMPLAINT is hereby admitted by receipt and copies thereof on this
25th
day
of June, 1998, at Rapid City, County of Pennington, State of South Dakota.
John Jay Jones, Defendant
Date of Signature
Subscribed and sworn to this 25th
day of June, 1998.
NOTARY PUBLIC
My Commission expires:
L
(SEAL)
File No.
ADMISSION OF
SERVICE
L"
EXAMPLE DOCUMENTS
- Plaintiffs Affidavit
DATED THIS 25th day
of June, 1998
Subscribed and sworn to this 25th day of June, 1998.
NOTARY PUBLIC
(SEAL)
27
EXAMPLE DOCUMENTS - Defendant's Affidavit
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF PENNINGTO N) SEVENTH
JUDICIAL CIRCUIT
IN THE CIRCUIT COURT
MARY JO Y JO NES )
)
-vs- )
)
DEFENDANT'S
JO HN JAY JO NES )
AFFIDAVIT
SSN: 062-50-3984 Defendant. )
CO MES NO Wyour affiant,
John Jay Jones, being first sworn on oath, deposed
and states as follows:
1.
I agree that South Dakota is the proper State for jurisdiction of this
divorce matter between
Mary Joy Jones and me.
2. That as a result of this relationship,
three children
have been born,
namely, James Paul Jones born December 16, 1984, Mark William Jones born
April 17, 1986 and Kristine Elizabeth Jones born May
27,
1988. None were
adopted and no more children are expected.
3.
I agree that the grounds for this divorce are Irreconcilable Differences as
defined by SDCL 25-4-17.1.
4.
I agree that my spouse can obtain a Divorce by Default.
5.
Our Marital property has already been divided and I am satisfied with the
division of this property.
6.
I further agree that no hearing is necessary, and that neither my spouse or
I need appear personally at a hearing for this divorce and that we may do so by Affidavit
pursuant to SDCL 25-4-17.3 and pursuant to the Stipulation and Agreement
entered into in the above-entitled matter.
EXAMPLE DOCUMENTS - Defendant's Affidavit
DATED THIS 25th day of June, 1998
John Jay Jones,
Plaintiff
Subscribed and sworn to this 25th day of June, 1998.
NOTARY PUBLIC
29
EXAMPLE DOCUMENTS - The Stipulation And Agreement
STATE OF SOUTH DAKOTA ) IN THE CIRCUIT COURT
) SS
COUNTY OF PENNINGTO N) SEVENTH JUDICIAL CIRCUIT
MARY JO Y JO NES )
)
-vs- )
)
STIPULATION
JO HN JAY JO NES
) AND AGREEMENT
SSN: 062-50-3984 Defendant. )
I.
PARTIES:
The parties to this agreement are Mary Joy Jones, SS 048-48-2899,
the above-
named Plaintiff, and John Jay Jones,
SS 062-50-4899, the above-named Defendant.
II.
PURPOSE:
Plaintiff has caused to be served upon Defendant a Summons and Complaint in
this action. Service was completed on the Defendant on the 20th day of
June, 1988.
The Plaintiff is an actual resident of
Pennington County, South Dakota, and was
so at the time of the initiation of this action.
During the course of the marriage, the parties have had children, accumulated
certain items of personal property and have accumulated certain debts and obligations.
The purpose of this agreement is to set forth the terms and conditions upon which the
parties agree to compromise and settle any controversies arising out of their marital
relationship and to aid the Court in disposing of this matter if the Court sees fit to grant
Plaintiff a Divorce upon her cause of action set forth in her Complaint.
30
NO W THEREFO RE, in
consideration of the mutual promises and
covenants hereafter contained, the parties do hereby agree as follows:
III.
NOTICE OF TRIAL AND DECISION OF COURT WAIVED:
After being fully advised of their rights, the parties do specifically waive any
notice of trial and decision of the Court consisting of its Findings of Fact and
Conclusions of Law, and agree that Plaintiff may forthwith bring on for hearing any
cause of action which she has for divorce, as set forth in her Complaint, without notice
to the Defendant upon the expiration of sixty (60) days from the date of completed
service of the Summons and complaint herein.
IV.
DATE AND PLACE OF MARRIAGE:
Plaintiff and Defendant were legally married on the 4th day of June, 1983, at
Jacksonville, Florida.
V.
FINANCIAL AND PERSONAL STATUS:
It is understood and agreed by the parties that each of said parties is fully and
completely informed of the financial and personal status of the other , and each of them
has given full and mature thought to the making of this agreement of all obligations
contained herein.
VI.
RELEASE OF OBLIGATIONS:
It is understood and agreed by the parties that except as hereafter expressly
provided, each party is hereby released and absolved from any and all obligations and
liabilities for future acts and duties of the other, and each party hereby releases the
other from any and all liabilities, duties and obligations of any kind or character,
31
incurred by the other, from, and after, the date of separation, which was the
3rd
day
of June, 1998.
VII.
CHILDREN:
There have been three children born of this marriage, namely:
James Paul
Jones born December 16, 1984, Mark William Jones born April 17, 1986 and
Kristine Elizabeth Jones born May
27, Plaintiff is not now pregnant.
VIII.
CUSTODY
The Plaintiff and Defendant shall have the joint legal care, custody and control
of the minor children, namely
James Paul Jones born December 16, 1984, Mark
William Jones born April 17, 1986 and Kristine Elizabeth Jones born May 27,
1988, with Plaintiff
having primary care, custody and control of the minor children.
IX.
VISITATION:
The Defendant shall have reasonable visitation rights with the children as set
forth in the Seventh Circuit Child Visitation Guidelines.
IX.
CHILD SUPPORT:
Defendant shall pay the sum of $214.00
per month to the Plaintiff for child
support, an amount which both parties agree is in accordance with the current Child
Support Guidelines established by the South Dakota Department of Social Services.
L
X.
ORDER FOR WITHHOLDING:
Parties acknowledge that on July 1, 1990, a statute was passed regarding the
entry of an Order for Withholding upon the entry of any order for support. An Order
for
Withholding will be entered unless the Court approves of an alternative arrange-
ment for the payment of support. If no wage withholding is entered, a request for
support can be made at any time regardless of delinquency. The person entitled to
receive support may request an Order for Withholding and it will be granted.
XI.
NOTICE OF CHANGE OF RESIDENCE
:
If either party changes residence or phone numbers they shall immediately
contact the other parent and give them full information as to their new complete
address and phone number.
In the event that either party moves from the area where the children are living
they shall give the other party
sixty (60) days notice so that parties will have ample time
to renegotiate visitation and transportation costs and other arrangements.
XII.
MEDICAL INSURANCE:
Defendant shall be responsible for complete medical coverage for the minor
children through Title 19.
Medical care includes but is not limited to counseling,
dental, orthodontic, optometric, physical check-ups, surgery
and other routine and
emergency care. Plaintiff and Defendant shall share any medical costs not covered by
Title 19 on a pro rata basis according to their income within thirty (30) days from the
ti
me the costs are incurred. Copies of all medical bills shall be sent immediately to the
non-custodial parent for payment of their share of the debt.
33
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XIII.
LIFE INSURANCE:
Defendant shall carry sufficient personal life insurance necessary to collateralize
child support, naming the children as beneficiaries. The life insurance will be carried
at least until the youngest child is 18 years of age or graduates from high school,
whichever occurs last.
In the event Defendant remarries the life insurance coverage for this purpose
shall not be expanded to cover any new children he has but shall remain in full force
and effect, only for the children of this marriage.
Defendant shall in no way encumber said life insurance policies or do anything
that would diminish the value of said policies.
XIV.
INCOME TAX DEDUCTIONS:
Plaintiff shall claim all three children as dependency exemptions on her income
tax return. Each of the parties shall cooperate in signing the necessary papers for the
IRS regarding the claiming of the minor children for deduction.
XV.
PERSONAL PROPERTY:
The parties have made division of their personal and real property (if any)
which they owned either together or separately, as set forth in Appendix "A" attached
hereto and by reference incorporated herein, and such division and apportionment is
hereby confirmed and ratified as being equitable. Each party releases, quit claims and
assigns to the other party all his or her right, title and interest, present and prospective,
in each item of property of every kind, nature and description and wherever situated
which is herein divided. All property here after accumulated or acquired by either of
them shall be his or her sole, separate and exclusive property, the same as if the parties
had never been married.
34
XVI.
DEBTS AND OBLIGATIONS:
The debts and obligations (if any) of the parties, whether joint or several, have
been divided by the parties as set forth in Appendix "B", attached hereto and
incorporated herein by reference and such division and apportionment is hereby
confirmed and ratified as being equitable and the parties agree to pay each debt so
assumed by them as their sole obligation and hereby indemnifies the other party
therefore. The parties represent to each other and agree that the list of debts set out is
true and complete and that any debt not listed, through oversight or otherwise, and
which is not known to exist by both parties, will be paid by the party failing to disclose
the same, who will indemnify the other party against liability therefore.
XVII.
LEGAL FEES:
Each party will pay their own legal fees and costs .
XVIII.
ALIMONY:
The Plaintiff and Defendant stipulate and agree that each party waives and
surrenders any and all entitlement they may have to any and all alimony, pension(s),
retirement(s) (Military or Civilian), or annuity benefits, including present and future
benefitsXlX.
GROUNDS FOR DIVORCE:
Parties agree that grounds for divorce will be Irreconcilable Differences as
defined by SDCL 25-4-2(7) and 25-4-17.1 and that the parties can no longer reside as
husband and wife.
35
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xx.
INCORPORATION:
It is expressly understood and agreed by both parties that the terms and
provisions of the property settlement Agreement may be incorporated into the final
divorce decree. If the Court refuses to accept any part or paragraph of this Agreement
or wishes to modify the same, this Agreement shall be null and void. The parties agree
and understand that the terms contained in the agreement are enforceable by an action
for contempt of Court. Upon the entry of this Decree of Divorce incorporation any and
all of these agreements, any prior agreement or agreements between the parties hereto
respecting their property rights and any other obligation arising out of the marriage of
the parties shall be considered canceled and superseded by such decree.
XXI.
INDEMNIFICATION SINCE THE TIME OF SEPARATION:
Except as otherwise provided herein, Plaintiff shall be responsible for, indem-
nify and hold Defendant harmless from any and all debts incurred by her since the
separation of the parties; and Defendant shall be responsible for, indemnify and hold
Plaintiff harmless from any and all debts incurred by him since the 3rd day of June,
1998,
which is the separation date of the parties, except as specifically stated herein.
36
XXII.
BINDING EFFECT:
This agreement shall bind and insure to the benefit of the parties of their
respective heirs, next of kin, divisees, legatees, executors, administrators and assigns.
DATED this 25th day of June, 1998 .
John Jay Jones, Defendant
37
J
y
) SS
CO UNTY O F PENNINGTO N )
O n this 25th day of June, 1998,
before me, the undersigned officer, personally
appeared Mary Joy Jones,
known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument, acknowledged that she executed
the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
) SS
COUNTY OF PENNINGTO N )
O n this 25th day of June, 1998,
before me, the undersigned officer, personally
appeared John Jay Jones, known to me or satisfactorily proven to be the person whose
name is subscribed to the within instrument, acknowledged that he executed the same
for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
My Commission Expires:
38
APPENDIX "A"
PERSONAL PROPERTY
The parties acknowledge and agree that they have divided the marital and
personal property to their mutual satisfaction and accordingly, any marital and
personal property in his or her possession on the date of the Decree of Divorce shall
be awarded to that party.
REAL PROPERTY
1 .
NONE
-------------------------------------
Use new page for Appendix "B"
APPENDIX "B"
DEBTS
Plaintiff shall be responsible for, indemnify and hold Defendant harmless from
the following debts, to-wit:
1 .
Any debts that are in the Plaintiff's name.
Defendant shall be responsible for, indemnify and hold Plaintiff harmless from
the following debts, to-wit:
1 .
Any debts that are in the Defendant's name.
39
L.
:
EXAMPLE DOCUMENTS - Judgment and Decree of Divorce
) SS
COUNTY OF PENNINGTO N) SEVENTH JUDICIAL CIRCUIT
MARY JO Y JO NES )
SSN:
048-48-2982 Plaintiff, ) File No.
)
-vs- )
JUDGMENT AND
) DECREE OF
JO HN JAY JO NES )
DIVORCE
SSN:
062-50-3984 Defendant. )
The above matter having come before the Court, both parties not appearing
either in person or by counsel, but only through a Stipulation of the parties, admitted
in evidence and duly adopted by the Court, and by Affidavit of the parties, and the Court
having read the files determining that it has jurisdiction of the parties and subject
matter, that the matter is properly before it, that Plaintiff has a just and meritorious
cause of action against the Defendant for divorce, that all of the allegations in the
Complaint are true, and being fully advised in the premises, good cause appearing, it
is
ORDERED, ADJUDGED AND DECREED as follows:
I.
That Plaintiff, Mary Joy Jones, be granted an absolute divorce from Defendant,
John Jay Jones
and the bonds of matrimony existing be dissolved.
H.
That all provisions of the Stipulation and Agreement as executed by the
parties, admitted in evidence and adopted by the Court, be and the same are ap-
proved and incorporated and to be treated as if set forth verbatim.
40
EXAMPLE DOCUMENTS - Judgment and Decree of Divorce
III.
That the Plaintiff shall have her former name restored as
Mary Joy Johnson.
DATED this 14th day of September, 1998.
BY THE COURT:
CIRCUIT COURT JUDGE
SEVENTH JUDICIAL CIRCUIT
ATTESTED:
Clerk of Court
Deputy Clerk
(SEAL)
41
EXAMPLE DOCUMENTS - Notice of Entry of Judgment
)
SS
COUNTY O F PENNINGTO N)
SEVENTH JUDICIAL CIRCUIT
MARY JO Y JO NES
)
SSN: 048-48-2982 Plaintiff, )
File No.
)
-vs- )
) NOTICE OF ENTRY
JO HN JAY JO NES ) OF JUDGMENT AND
SSN: 062-50-3984
Defendant. ) DECREE OF DIVORCE
TO THE DEPENDANT, JO HN JAY JO NES:
PLEASE TAKE NOTICE that a Decree of Divorce in the above entitled action,
a certified copy of which is attached thereto, was on the 14th day of
September, 1998,
duly entered by the Clerk of Courts at Rapid City, Pennington County, South Dakota.
42
4
EXAMPLE DOCUMENTS - Certificate of Service
CERTIFICATE OFSERVICE
I, Mary Joy Jones, hereby certify that I served a true and correct copy of the
foregoing Notice of Entry of Judgment and Decree of Divorce, together with a certified
copy of the Judgment and Decree of Divorce, to the Defendant in this matter , by way
_ of Certified Mail to the said addressee, to-wit:
John Jay Jones
1920 North 7th Street, Apt. 7-A
Rapid City, South Dakota 57701
43
SOUTH DAKOTA CODIFIED LAWS - Chapter 2 5-4
SOUTH DAKOTA
CODIFIED LAWS
CHAPTER 25-4
DOMESTIC RELATIONS
DIVORCE AND SEPARATE MAINTENANCE
Section
25-4-1.
25-4-2.
25-4-3.
25-4-4.
25-4-5.
25-4-6. 25-4-7.
25-4-8.
25-4-9.
25-4-10.
25-4-11.
25-4-12.
25-4-13.
25-4-14.
25-4-15.
25-4-16.
25-4-17.
25-4-17.1.
25-4-17.2.
25-4-18.
25-4-19.
25-4-20.
25-4-21.
25-4-22.
25-4-23.
25-4-24.
25-4-25.
25-4-26.
25-4-27, 25-4-28.
25-4-29.
25-4-30.
Marriage dissolved only by death or divorce - Status of parties after divorce.
Grounds for divorce.
Adultery defined.
Extreme cruelty defined.
Willful desertion defined - special conditions applicable.
Repealed.
Refusal of intercourse as desertion - Refusal to live together.
Desertion by departure during absence of spouse induced by fraud.
Desertion by cruelty or threats causing departure of spouse.
Separation by consent not desertion.
Intent to desert formed during proper absence.
Desertion by refusal of reconciliation after separation.
Offer to return curing desertion - Refusal of offer as desertion.
Willful neglect defined.
Habitual intemperance defined.
Continuous period of desertion, neglect or intemperance required.
Irreconcilable differences defined.
Dissolution of marriage - Legal separation - Continuance - Orders during
continuance - Consent of parties.
Chronic mental illness as discretionary ground.
Grounds for denial of divorce.
Connivance defined.
Collusion defined.
Condonation defined - Required elements.
Condonation not implied by endurance of continuing conduct constituting
ground for divorce.
Fraudulent concealment of ground of divorce avoiding condonation.
Conjugal kindness as condition subsequent to condonation.
Revocation of condonation and revival of ground for divorce.
Repealed.
Lapse of time as ground for denial of divorce - Presumption of acquiescence
Residence requirements for divorce or separation maintenance.
44
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SOUTH DAKOTA CODIFIED LAWS - Chapter 25-4
Venue of action - Change by defendant.
Repealed
No presumption as to same domicile of parties - Separate domiciles after
separation.
Automatic temporary restraining order upon service - Modification or revoca-
tion.
Waiting period before trial of divorce and separate maintenance actions -
Temporary orders and preliminary proceedings during waiting period - Valid-
ity of proceedings commenced before 1964.
Validation of prior decrees granted on sixtieth day - Deadline for contesting
validity.
Validity of proceedings on service by publication under prior law.
Repealed.
Alimony pending action.
Separate maintenance granted on denial of divorce.
Action for separate maintenance without divorce - Alimony and support.
Allowance for support when divorce granted.
Security for payments required of spouse - Receivership - Allowance withheld
when recipient's estate sufficient.
Support payments through clerk of courts - Payment to social services when
assignment made to state - Back support - Accounting.
Division of property between parties.
Child custody provisions - Modification.
Fault not considered in awarding property or child custody - Exceptions.
Intervention by attorney general or state's attorney when support assigned to
state.
Adoption of fee schedule for home studies or investigations ordered by court in
custody proceedings.
Counsel appointed for child in certain divorce and custody proceedings - Duty
of counsel - Assistance - Costs.
Alimony, support, property and child custody provisions subject to review on
appeal.
Restoration of former name to wife - Validation of prior decrees.
Legitimacy of children after divorce for adultery of wife.
Legitimacy of children after divorce for adultery of husband.
Repealed.
Report of divorces to department of health.
Visitation rights for grandparents - Authority of circuit court.
Repealed.
Visitation rights of grandparents - Child placed for adoption.
Exclusion of child from custody proceedings.
Court authorized to order mediation or investigation - Allocation of costs.
45
25-4-30.1
25-4-31,25-4-32.
25-4-33.
25-4-33.1.
25-4-34.
25-4-34.1.
25-4-35.
25-4-36, 25-4-37
25-4-38.
25-4-39.
25-4-40.
25-4-41.
25-4-42.
25-4-43.
25-4-44.
25-4-45.
25-4-45.1.
25-4-45.2.
25-4-45.3.
25-4-45.4.
25-4-46.
25-4-47.
25-4-48.
25-4-49.
25-4-50.
25-4-51.
25-4-52.
25-4-53.
25-4-54.
25-4-55.
25-4-56.
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25-4-57. Court appointment of mediator.
25-4-58. Adoption of court rules establishing minimum qualifications of mediator.
25-4-58.1. Minimum Qualifications for Family Court Mediators.
25-4-58.2. Conduct of Family Court Mediators.
25-4-59. Privacy of mediation proceedings.
25-4-60. Confidentiality of mediation communications and mediator's work product.
25-4-61. Written mediated agreement - Signing - Court approval.
25-4-62
Recommendation by dediator to court upon parties' failure to agree.
25-4-1. Marriage dissolved only by death or divorce - Status of
parties after divorce.
Marriage is dissolved only:
(1) By the death of one of the parties; or
(2) By the judgment of a court of competent jurisdiction decreeing a divorce of the
parties. The effect of such judgment is to restore the parties to the state of unmarried
persons.
Source: SDC 1939, 14.0701.
See Cal Civ Code, 90.
25-4-2. Grounds for divorce.
Divorces may be granted for any of the following causes:
(1) Adultery;
(2) Extreme cruelty;
(3) Willful desertion;
(4) Willful neglect;
(5)
Habitual intemperance;
(6) Conviction of felony;
(7) Irreconcilable differences.
46
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SOUTH DAKOTA CODIH-thD LAWS - Chapter 25-4
Source: SDC 1939, 14.0703 (1) to (6); SL 1985, ch 207, 3.
25-4-3. Adultery defined.
Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom
he or she is not married.
The effective date of this section is July 1, 1984.
Source: SDC 1939, 14.0704; repealed SL 1976, ch 158, 22-8;
re-enacted SL 1984, ch 12, 38; 1985, ch 15, 36.
25-4-4. Extreme cruelty defined.
Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other,
by one party to the marriage.
Source: SDC 1939, 14.0708.
25-4-5. Willful desertion defined - Special conditions applicable.
Willful desertion is the voluntary separation of one of the married parties from the other with intent
to desert.
The special conditions or circumstances set forth in 25-4-8 to 25-4-14, inclusive, shall also apply
in establishing desertion under the provisions of this title.
Source: SDC 1939, 14.0709.
25-4-6. Desertion by wife's failure to conform to husband's
place or mode of living.
Repealed by SL 1974, ch 173.
25-4-7. Desertion by husband's selection of unreasonable place or mode
of living.
25-4-8.
Refusal of intercourse as desertion - Refusal to live together.
Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or
physical condition does not make such refusal reasonably necessary, or the refusal of either party to
dwell in the same house with the other party when there is no just cause for such refusal, is desertion.
Source: SDC 1939, 14.0709'(l).
25-4-9.
Desertion by departure during absence of spouse induced by fraud.
When one party is induced by the stratagem or fraud of the other party to leave the family dwelling
place or to be absent, and during such absence the offending party departs with intent to desert the
other, it is desertion by the party committing the stratagem or fraud and not by the other.
Source: SDC 1939, 14.0709 (2).
25-4-10.
Desertion by cruelty or threats causing departure of spouse.
Departure or absence of one party from the family dwelling place caused by cruelty or by threats of
bodily harm from which danger would be reasonably apprehended from the other is not desertion by
the absent party, but it is desertion by the other party.
Source: SDC 1939, 14.0709 (3).
25-4-11.
Separation by consent not desertion.
Separation by consent with or without the understanding that one of the parties will apply for a
divorce is not desertion.
Source: SDC
,
1939, 14.0709 (4).
25-4-12. Intent to desert formed during proper absence.

If one party deserts the other and, before the expiration of the statutory period required to make the
desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract and
solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the
refusal shall be deemed and treated as desertion by such party from the time of the refusal.
a
1
Source: SDC 1939, 14.0709 (7).
25-4-15. Willful neglect defined.
Willful neglect is the neglect of a person to provide the common necessaries of life for his or her
spouse, when having the ability to do so; or it is the failure to do so by reason of idleness, profligacy,
or dissipation.
Source: SDC 1939, 14.0710; SL 1984, ch 12, 45.
25-4-16.
Habitual intemperance defined.
Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which
disqualifies the person a great portion of the time from properly attending to business, or which would
reasonably inflict a course of great mental anguish upon the innocent party.
Source: SDC 1939, 14.0711.
25-4-17.
Continuous period of desertion, neglect or intemperance required.
A
Willful desertion, willful neglect, or habitual intemperance must continue for one year before either
is a ground for divorce.
Source: SDC 1939, 14.0712.
25-4-17.1. Irreconcilable differences defined.
Irreconcilable differences are those grounds which are determined by the court to be substantial
reasons for not continuing the marriage and which make it appear that the marriage should be
dissolved.
Source: SL 1985, ch 207, 1.
25-4-17.2. Dissolution of marriage - Legal separation - Continuance - Orders during
continuance - Consent of parties.
If from the evidence at the hearing, the court finds that there are irreconcilable differences, which
have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage
or a legal separation. If it appears that there is a reasonable possibility of reconciliation, the court shall
49
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continue the proceeding for a period not to exceed thirty days. During the period of the continuance,
the court may enter any order for the support and maintenance of the parties, the custody, support,
maintenance and education of the minor children of the marriage, attorney fees and for the
preservation of the property of the parties. At any time after the termination of the thirty-day period,
either party maymove
for the dissolution of the marriage or a legal separation, and the court may enter
its judgment decreeing the dissolution or separation.
The court may not render a judgment decreeing the legal separation or divorce of the parties on the
grounds of irreconcilable differences without the consent of both parties unless one party has not
made a general appearance.
Source: SL 1985, ch 207, 2; 1986, ch 213.
25-4-17.3. Use of
affidavits to establish jurisdiction and grounds for divorce.
In any action for divorce or separate maintenance in which the parties have consented to the use of
irreconcilable differences, the court may grant the divorce based on the affidavits of the parties
establishing the requisite jurisdiction and grounds for the divorce or separate maintenance action
without requiring their personal appearance.
Source: SL 1987, ch 187, 1.
25-4-17.4. Validation
of divorce granted without personal appearance.
Any divorce or separate maintenance which has been granted without the personal appearance of a
party is hereby legalized and validated.
Source: SL 1987, ch 187, 2.
25-4-18. Chronic mental illness as discretionary ground.
In case of incurable, chronic mania or dementia of either spouse having existed for five years or more,
while under confinement by order of a court of record or of the board of mental illness as provided
by law, the court may in its discretion grant a divorce.
Source: SDC 1939, 14.0703 (7).
25-4-19. Grounds for denial of divorce.
Divorces must be denied upon showing:
(1) Connivance;
(2)
Collusion;
50
(3)
Condonation; or
(4) Limitation and lapse of time.
Source: SDC 1939, 14.0713; SL 1973, ch 161.
25-4-20. Connivance defined.
Connivance is the corrupt consent of one party to the commission of the acts of the other, constituting
the cause of divorce. Corrupt consent is manifested by passive permission, with intent to connive at
or actively procure the commission of the acts complained of.
Source: SDC 1939, 14.0714
.
25-4-21. Collusion defined.
Collusion is an agreement between husband and wife that one of them shall commit or appear to have
committed or to be represented in court as having committed acts constituting
acause of divorce, for
the purpose of enabling the other to obtain a divorce.
Source: SDC 1939, 14.0715.
25-4-22.
Condonation defined - Required elements.
Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.
The following requirements are necessary to condonation:
(1)
A knowledge on the part of the condoner of the facts constituting the cause of divorce;
(2)
Reconciliation and remission of the offense by the injured party;
(3)
Restoration of the offending party to all marital rights.
Source: SDC 1939, 14.0716.
25-4-23. Condonation not implied by endurance of
continuing conduct constituting ground
for divorce.
Where the cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty from
excessive acts of ill-treatment, which may aggregately constitute the offense, cohabitation, or passive
endurance, or conjugal kindness shall not be evidence of condonation of any of the acts constituting
such cause, unless accompanied by an express agreement to condone. In such cases, condonation can
be made only after the cause of divorce has become complete, as to the acts complained of.
Source: SDC 1939, 14.0716.
25-4-24. Fraudulent concealment of ground of
divorce avoiding condonation.
A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the
one condoned, and existing at the time of condonation, avoids such condonation.
Source: SDC 1939, 14.0716.
25-4-25. Conjugal kindness as condition subsequent to condonation.
Statute text
Condonation implies a condition subsequent that the forgiving party must be treated with conjugal
kindness.
Source: SDC 1939, 14.0716.
25-4-21. Collusion defined.
Collusion is an agreement between husband and wife that one of them shall commit or appear to have
committed or to be represented in court as having committed acts constituting a cause of divorce, for
the purpose of enabling the other to obtain a divorce.
Source: SDC 1939, 14.0715.
25-4-22. Condonation defined - Required elements.
Condonation is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.
The following requirements are necessary to condonation:
(1) A knowledge on the part of the condoner of the facts constituting the cause of divorce;
(2) Reconciliation and remission of the offense by the injured party;
(3) Restoration of the offending party to all marital rights.
Source: SDC 1939, 14.0716.
25-4-23.
Condonation not implied by endurance of continuing
conduct constituting
ground
for divorce.
Where the cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty from
excessive acts of ill-treatment, which may aggregately constitute the offense, cohabitation, or
passive endurance, or conjugal kindness shall not be evidence of condonation of any of the acts
constituting such cause, unless accompanied by an express agreement to condone. In such cases,
condonation can be made only after the cause of divorce has become complete, as to the acts
complained of.
Source: SDC 1939, 14.0716.
25-4-24. Fraudulent concealment of ground of divorce avoiding condonation.
A fraudulent concealment by the condonee of facts constituting a different cause of divorce from the
one condoned, and existing at the time of condonation, avoids such condonation.
Source: SDC 1939, 14.0716.
25-4-25.
Conjugal kindness as condition subsequent to condonation.
Statute text
53
i
Condonation implies a condition subsequent that the forgiving party must be treated with conjugal
kindness.
Source: SDC 1939, 14.0716.
25-4-26. Revocation of condonation and revival of ground for divorce.
Condonation is revoked and the original cause of divorce revived:
(1) When the condonee commits acts constituting a like or other cause of divorce; or
(2)
When the condonee is guilty of great conjugal unkindness, not amounting to a cause
of divorce, but sufficiently habitual and gross to show that the conditions of
condonation had not been accepted in good faith or not fulfilled.
Source: SDC 1939, 14.0717.
25-4-27. Recrimination defined.
25-4-28.
Condonation as bar to recriminatory defense.
25-4-29.
Lapse of time as ground for denial of divorce - Presumption
of acquiescence - O ther
li mitations not applicable.
A divorce must be denied when there is an unreasonable lapse of time before the commencement of
the action. Unreasonable lapse of time is such a delay in commencing the action as establishes the
presumption that there has been connivance, collusion, or condonation of the offense, or full
acquiescence in the same, with intent to continue the marriage relation, notwithstanding the
commission of the offense set up as a ground of divorce. The presumption arising from lapse of time
may be rebutted by showing reasonable grounds for the delay in commencing the action.
There are no limitations of time for commencing actions for divorce, except such as contained in this
section.
Source: SDC 1939, 14.0719.
25-4-30. Residence requirements for divorce or separate maintenance.
The plaintiff in an action for divorce or separate maintenance must, at the time the action is
commenced, be a resident of this state, or be stationed in this state while a member of the armed
54
services, and in order that each party be entitled to the entry of a decree or judgment of divorce or
separate maintenance, that residence or military presence must be maintained until the decree is
entered.
Source: SDC 1939, 14.0720; SL 1961, ch 53; SDCL, 25-4-32; SL 1974,
ch 174, 1.
25-4-30.1.
Venue of action - Change by defendant.
An action for divorce or separate maintenance may be commenced in the county of residence of either
party, subject to the right of the defendant to have the place of trial changed to the county where the
defendant resides.
Source: SDC 1939, 14.0720; SDCL, 25-4-30; SL 1974, ch 174, 2.
25-4-31. Residence requirements on cause of action arising in state.
Repealed by SL 1974, ch 174, 3.
25-4-32. Servicemen deemed resident for divorce purposes.
Repealed by SL 1974, ch 174, 3.
25-4-33. Nopresumption as to same domicile of parties - Separate domiciles after separation.
In actions for divorce there is no presumption of law that the domicile of either party is the domicile
of the other. After separation each party may have a separate domicile, depending for proof upon
actual residence, and not upon legal presumption.
Source: SDC 1939, 14.0721.
25-4-33.1 . Automatic temporary restraining order upon service - Modification or revocation.
Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and
upon personal service of the summons and complaint on the defendant, a temporary restraining order
55
shall be in effect against both parties until the final decree is entered, the complaint dismissed, or until
further order of the Court:
(1) Restraining both parties from transferring, encumbering, concealing or in any way
dissipating or disposing of any marital assets, without the written consent of the other
party or an order of the court, except as may be necessary in the usual course of
business or for the necessities of life, and requiring each party to notify the other party
of any proposed extraordinary expenditures and to account to the court for all
extraordinary expenditures made after the temporary restraining order is in effect;
(2) Restraining both parties from molesting or disturbing the peace of the other party; and
(3) Restraining both parties from removing any minor child of the parties from the state
without the written consent of the other party or an order of the court.
The provisions of the temporary restraining order shall be printed upon the summons and shall
become an order of the court upon fulfillment of the requirements of service. However, nothing in
this paragraph precludes either party from applying to the court for any further relief or for the
modification or revocation of any order.
Source: SL 1986, ch 212.
25-4-34. Waiting period before trial of divorce and separate maintenance actions - Tempo-
rary orders and preliminary proceedings during waiting period - Validity of proceedings
commenced before 1964.
An action for divorce or separate maintenance shall not be heard, tried, or determined by the court
until at least sixty days have elapsed from the completed service of the plaintiff's summons and
complaint therein. During said waiting period the court may issue all orders required to effectuate the
purposes expressed in 25-4-38 and 25-4-45 or to protect any of the parties to the action during the
pendency thereof.
This section shall not be construed to prohibit the taking of depositions, examination of parties before
trial, the granting of orders respecting discovery, or proceedings to perpetuate testimony, prior to the
hearing or trial of said action by the court.
Nothing in this section shall operate to nullify any action or proceeding for divorce commenced prior
to July 1, 1964, notwithstanding the fact that the final judgment or decree in such action or proceeding
is entered therein after said date.
Source: SL 1959, ch 232, 1 to 3; SDC Supp 1960, 14.0729; SL 1964,
ch 35, 1, 2.
SOUTH DAKOTA CODlFED
LAWS - Chapter 25-4
25-4-34.1.
Validation of prior decrees granted on sixtieth day - Deadline for contesting
validity.
All divorce decrees granted on the sixtieth day after service of the summons and complaint, on or
before December 12, 1979, are hereby legalized, cured and validated as if they were granted on the
sixty-first day following service of the summons and complaint.
Any person claiming that a divorce is not valid must have commenced action to adjudicate his or her
claim on or before July 1, 1981. In case of his or her failure to do so by July 1, 1981, his or her right
of action shall have expired and shall be barred.
25-4-35.
Validity of proceedings on service by publication under prior law.
All actions or proceedings had before July 1, 1959, for divorce pursuant to chapter 179 of the Session
Laws of 1957, and all actions or proceedings commenced pursuant thereto prior to said date, and
completed thereafter by entry of judgment or decree therein, are hereby legalized, cured and
validated, notwithstanding that service of the summons therein was by publication or in any other
manner provided by statute.
Source: SL 1959, ch 232, 4; SDC Supp 1960, 65.0341.
25-4-36. Default judgment prohibited - Proof and corroboration required - Serviceman's
deposition permitted.
Repealed by SL 1974, ch 173; 1974, ch 174, 2.
25-4-37.
Commission to take depositions - Notice or proof of default - Plaintiffs deposition
prohibited.
Repealed by SL 1974, ch 173; 1974, ch 174, 2.
25-4-38.
Alimony pending action.
While an action for divorce is pending, the court may in its discretion require one spouse to pay as
alimony any money necessary to support the other spouse or the children of the parties, or to prosecute
or defend the action.
Source: SDC 1939, 14.0725; SL 1979, ch 165, 1.
57
25-4-39.
Separate maintenance granted on denial of divorce.
Though judgment of divorce is denied, the court may in an action for divorce provide for maintenance
of a spouse and the children of the parties, or any of them, by the other spouse.
Source: SDC 1939, 14.0727; SL 1979, ch 165, 2.
25-4-40.
Action for separate maintenance without divorce - Alimony and support.
An action for separate maintenance may be maintained without request for divorce, upon any
grounds which would be grounds for divorce, and in such cases the court shall have power to award
temporary alimony, suit money, and permanent support for a spouse and the children of the parties,
or any of them, by the other spouse.
Source: SDC 1939, 14.0727; SL 1979, ch 165, 3.
25-4-41.
Allowance for support when divorce granted.
Where a divorce is granted, the court may compel one party to make such suitable allowance to the
other party for support during the life of that other party or for a shorter period, as the court may deem
just, having regard to the circumstances of the parties represented; and the court may from time to
ti
me modify its orders in these respects.
Source: SDC 1939, 14.0726; SL 1977, ch 203, 1.
25-4-42.
Security for payments required of spouse - Receivership - Allowance withheld when
recipient's estate sufficient.
The court may require a spouse to give reasonable security for providing maintenance, or making any
payments required under the provisions of this chapter, and may enforce the same by the appointment
of a receiver, or by any other remedy applicable to the case. But when a spouse has a
separate estate sufficient to give that spouse proper support, the court in its discretion may withhold
any allowance to that spouse out of the separate property
of the other spouse.
Source: SDC 1939, 14.0728; SL 1979, ch 165, 4.
See Cal Civ Code, 140, 146.
58
25-4-43. Support payments through clerk of courts - Payment to social services when
assignment made to state - Back support - Accounting.
When a divorce is granted or a decree for separate maintenance entered or thereafter, and when the
court has
provided
for the maintenance of the children of the marriage, all payments so required by
the order of
the court may by order of the court be paid to the clerk of courts in the amount and at the
time specified in said order, and the clerk shall forthwith disburse the money so received to the party
entitled thereto. Upon receipt of written notice of assignment of support obligations to the state of
South Dakota the clerk of courts shall pay the support to the department of social services rather than
to a family as long as such assignment remains in existence. When the department has no
authorization to receive the current support, the department shall notify the clerk to stop sending
current support payments to the state. However, back support due and owing prior to termination of
public assistance shall be paid to the state. Thereupon adequate accounting records showing receipts
and disbursements shall be maintained by the clerk of courts, and the clerk of courts shall maintain
a fact sheet in the original case file showing chronologically the date of receipts, dates of
disbursements and names of recipients.
Source: SDC 1939, 14.0726 as added by SL 1963, ch 64; 1977, ch 204.
25-4-44. Division of property between parties.

When a divorce is granted, the courts may make an equitable division of the property belonging to
either or both, whether the title to such property is in the name of the husband or the wife. In making
such division of the property, the court shall have regard for equity and the circumstances of the
parties.
Source: SDC 1939, 14.0726; SL 1988, ch 203.
25-4-45. Child custody provisions - Modification - Preference of child.

In an action for divorce, the court may, before or after judgment, give such direction for the custody,
care, and education of the children of the marriage as may seem necessary or proper, and may at any
ti
me vacate or modify the same. In awarding the custody of a child, the court shall be guided by
consideration of what appears to be for the best interests of the child in respect to the child's temporal
and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the
court may consider that preference in determining the question. As between parents adversely
claiming the custody, neither parent may be given preference over the other in determining custody.
s
59
Source: SDC 1939, 14.0724; SL 1994, ch 192.
25-4-45.1. Fault not considered in awarding property or child custody - Exceptions.

Fault shall not be taken into account with regard to the awarding of property or the awarding of child
custody, except as it may be relevant to the acquisition of property during the marriage or to the fitness
of either parent in awarding the custody of children.
25-4-45.2. Intervention by attorney general or state's attorney when support assigned to

state.
Statute text
In all cases where child support has been assigned to the state, the attorney general or the state's
attorney shall have the right to intervene pursuant to 15-6-24(a) in ongoing divorce actions to obtain
child support, or to petition the court to modify existing court orders for child support.
Source: SDCL, 25-4-45 as added by SL 1977, ch 203, 2.
25-4-45.3. Adoption of fee schedule for home studies or investigations ordered by court in
custody proceedings.
The secretary of social services may, pursuant to chapter 1-26, adopt a schedule of fees for home
studies or investigations ordered by the court be based on the ability of the parties involved to pay
for the home studies or investigations. The fees so adopted shall apply only to custody issues relating
to or resulting from divorce or separate maintenance proceedings and shall not impose any fee or
charges against the unified judicial system.
25-4-45.4. Counsel appointed for child in certain divorce or custody proceedings - Duty of
counsel - Assistance - Costs.
Notwithstanding the provisions of 26-7A-31, if the court determines mediation as provided in 25-
4-56 is not feasible the court may appoint counsel for any child involved in any divorce or custody
proceeding, in which the child is alleged to be neglected or abused, or if a parent, guardian or
custodian request counsel be appointed in such proceeding and if the court determines that it is in the
best interest of the child to have counsel appointed for the child. The counsel shall be charged with
60
representation of the child's best interests and may not be counsel for any other party involved. The
court may designate other persons who may or may not be attorneys to assist in the performance of
the counsel's duties. The court shall allocate the cost of the appointed counsel between the parents,
guardian or custodian of the child.
Source: SL 1990, ch 199; SDCL, 26-10-17.1.
25-4-45.5.
Consideration of assault conviction in custody award.
In
awarding custody involving a minor, the court shall consider a conviction of domestic abuse as
defined in 25-10-1(1) or a conviction of assault against a person as defined in 25-10-1 (2), except
against any person related by consanguinity, but not living in the same household. The conviction
creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interests
of the minor.
Source: SL 1997, ch 156, 1.
25-4-45.6.
Consideration of conviction for death of other parent in custody award.
In awarding custody or granting rights of visitation involving a minor, the court shall consider a
conviction,
excluding vehicular homicide, of a parent for the death of the other parent. A conviction
for the death of the other parent creates a rebuttable presumption that awarding custody or granting
visitation to the convicted parent is not in the best interests of the minor.
Source: SL 1997, ch 156, 2.
25-4-46.
Alimony, support, property and child custody provisions subject to review on
appeal.
The disposition
of the homestead by the court, and all orders and decrees touching the alimony and
maintenance of a spouse, and for the custody, education, and support of the children as above
provided are subject to revision on appeal in all particulars, including those which are stated to be
in the discretion of the court.
Source: SDC 1939, 14.0728; SL 1979, ch 165, 5.
25-4-47.
Restoration of former name to wife - Validation of prior decrees.
Whenever a decree of divorce is granted, the trial court may, in its discretion or upon the application
of either party by the terms of the decree, restore to the woman her maiden name or the name she
61
legally bore prior to her marriage to the husband in the divorce suit. All decrees of divorce previously
entered restoring to the divorced woman her former name under this section are declared legal and
valid and effective from their date of entry.
Source: SDC 1939, 14.0702; SL 1983, ch 205.
25-4-48. Legitimacy of children after divorce for adultery of wife.
When a divorce is granted for the adultery of the wife, the legitimacy of children begotten of her
before the commission of the adultery is not affected; but the legitimacy of other children of the wife
may be determined by the court upon the evidence in the case. In every such case all children begotten
before the commencement of the action are to be presumed legitimate until the contrary is shown.
Source: SDC 1939, 14.0706.
25-4-49. Legitimacy of children after divorce for adultery of husband.
When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage,
begotten of the wife before the commencement of the action, is not affected.
Source: SDC 1939, 14.0705.
25-4-50. Remarriage after divorce for adultery.
25-4-51. Report of divorces to department of health.
The clerk of court in every county shall report information of each dissolution of marriage or divorce
filed in the office of the clerk of court, on forms prescribed and furnished by the department of health
and approved by the state court administrator of the unified judicial system. The forms shall be mailed
or delivered to the South Dakota department of health within forty days after the entry of the final
order or decree of the circuit court.
25-4-52. Visitation rights for grandparents - Authority of circuit court.

The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with
or without petition by the grandparents, if it is in the best interests of the grandchild.
Source: SL 1982, ch 191, 1.
62
25-4-53. Visitation rights for grandparents - Petition to circuit court.
qualifications.
25-4-54. Visitation rights of grandparents - Child placed for adoption.
The provisions of 25-4-52 to 25-4-54, inclusive, do not apply if the child has been placed for
adoption with a person other than the child's stepparent or grandparent. Any grandparent visitation
rights granted pursuant to 25-4-52 to 25-4-54, inclusive, prior to placement for adoption of the
child with persons other than the child's stepparent or grandparent shall terminate upon the
placement of the child for adoption.
Source: SL 1982, ch 191, 3.
25-4-55.
Exclusion of child from custody proceedings.
In proceedings under this chapter involving contested custody of a child, upon request of counsel for
either party, the court may, for good cause and at its discretion, exclude the child from the
proceedings.
25-4-56. Court authorized to order mediation or investigation - Allocation of costs.
In any custody or visitation dispute between parents, the court shall, unless the court deems it
inappropriate under the facts of the case, order mediation to assist the parties in formulating or
modifying a plan, or in implementing a plan, for custody or visitation and shall allocate the cost of
the mediation between the parties. The court may also direct that an investigation be conducted to
assist the court in making a custody or visitation determination and shall allocate the costs of such
investigation between the parties.
Source: SL 1989, ch 218; SDCL Supp, 26-5A-31; 1994, ch 193.
25-4-57. Court appointment of mediator.
For any mediation ordered pursuant to 25-4-56 the court shall appoint a mediator from a list of
qualified mediators approved by the court.
Source: SL 1996, ch 163, 1.
63
25-4-58. Adoption of court rules establishing minimum qualifications of mediator.
The Supreme Court shall adopt rules establishing the minimum qualifications of a mediator. To be
included on a list of qualified mediators approved by the court, a person must possess the minimum
qualifications.
Source: SL 1996, ch 1 63, 2.
25-4-58.1. Minimum Qualifications for Family Court Mediators.
To be eligible as a court appointed mediator under
25-4-56, a mediator
must have the following minimum qualifications:
(1)
A mediator must file an approved application on the prescribed form with the
presiding judge for the circuit or circuits in which the mediator will conduct
mediations. See prescribed form attached as Exhibit A.
(2) A mediator must have a minimum of forty (40) hours' training and consultation with
an experienced mediator for at least three mediation sessions. In place of forty (40)
hours' training and consultation, a person may, with court approval, qualify as a
mediator if that person has had five year's experience in mediating custody and
visitation issues with a minimum of twenty (20) mediations during that period. A
mediator must have competence in the following areas:
(a) general knowledge of the South Dakota court system and its procedures in
contested family matters;
(b) general knowledge of South Dakota family law, especially as applied to
custody and visitation issues;
(c) knowledge of child development and specifically the impact of divorce or
separation on family members;
(d)
knowledge of resources available in the state to which the parties and the
children can be referred for assistance;
(e) knowledge of interviewing and mediation techniques applicable to the family
setting.
(3) A mediator must be committed to and participate in continuing education
courses.
64
EXHIBIT A
MEDIATOR APPLICATION FORM
UNIFIED JUDICIAL SYSTEM OF SOUTH DAKOTA
CIRCUIT COURT
Name:
Address:
Day time Phone:
Instructions: Please complete the following questionnaire as specified under each section. If
additional space is needed, attach a sheet for each area making sure to indicate the section of the
questionnaire to which you are responding. This form must be filed with the Presiding Judge for each
circuit in which you intend to participate in court appointed mediation.
1) Provide your professional background including degree(s), certificate(s), practice
specialization(s ), years of experience and special training:
2)
Provide a full and complete disclosure of all professional employment experiences
whether in the field of mediation or in any other field:
3) Provide complete information regarding any training, seminars, workshops, etc., you
deem pertinent to mediation:
4) Provide the number of mediations in which you have been involved giving approxi-
mate dates of those mediations if available. Please indicate how many of the
mediations were successful.
5) Describe methods of mediation you have used and time required to conduct a typical
mediation:
6) Please describe how fees and costs are calculated for completion of a typical
mediation:
7)
Please describe the requirements for payment of fees:
I am aware of and agree to abide by the principles and guidelines set out in the Interim Standards for
Mediators as promulgated by the Supreme Court of South Dakota.
Signature
Date
NOTE: This form must be updated as changes to the information occur or at least annually.
Approved:
Presiding Circuit Judge
Source: Supreme Court Rule 96-7; Supreme Court Rule 97-41.
65
25-4-58.2. Conduct of Family Court Mediators.
Mediators are expected to conduct themselves by the highest ethical standards. Mediators should
conduct themselves and mediations according to the following general principles:
(1) A mediator should recognize that mediation is based on participation and self-
determination by the parties. A mediator shall conduct the mediation process fairly,
diligently, impartially and in a manner consistent with assisting the parties in reaching
a voluntary, uncoerced agreement on the issues outstanding between them.
(2)
A mediator shall fully disclose to all parties involved in the mediation any actual or
potential conflicts of interest. A mediator shall not accept or shall withdraw from any
mediation in which the mediator has reason to believe he or she cannot conduct the
mediation in an impartial manner. After full disclosure of an actual or potential
conflict of interest to the parties, the mediator shall withdraw from the mediation if
requested by any party to do so.
(3)
A mediator should maintain confidentiality at all times except as provided by law or
court order. A mediator may otherwise disclose information regarding the mediation
only with the expressed consent of the parties.
(4) A mediator shall fully disclose to the parties and explain the basis of compensation,
fees, and other charges to the parties. This disclosure should occur at the first meeting
of the mediator and the parties.
Source: Supreme Court Rule 96-7; Supreme Court Rule 97-42.
25-4-59. Privacy of mediation proceedings.
The mediator shall conduct the mediation proceedings in private. The mediator may exclude counsel
from participation in the mediation proceedings.
Source: SL 1996, ch 163, 3.
25-4-60. Confidentiality of mediation communications and mediator's work product.
Any communication, oral or written, in a mediation proceeding pursuant to 25-4-56 is confidential
and inadmissible as evidence in any proceeding. A mediator appointed pursuant to 25-4-56 may
not be a witness, and the notes and work product of the mediator are not subject to discovery or
subpoena in the proceeding in which the contested child custody or visitation is at issue.
Source: SL 1996, ch 163, 4.
66
25-4-61.
Written mediated agreement - Signing - Court approval.
The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the
parties of their right to review the agreement with counsel before they sign the agreement. After the
agreement is signed by the parties, the mediator shall present the agreement to the court. The
agreement is not binding upon the parties until approved by order of the court.
Source: SL 1996,
ch 163, 5.
25-4-62. Recommendation by mediator to court upon parties' failure to agree.
The mediator may report to the court at any time that the parties are unable to reach an agreement.
The mediator may recommend to the court that the full hearing on the custody or visitation issue be
held within thirty days. The mediator may not make a substantive recommendation to the court
concerning the contested issue of custody or visitation.
Source: SL 1996, ch 163, 6.
r
67

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This Handbook Contains

The Complete South Dakota Divorce Law, Information on Divorce,

25-4-12. Intent to desert formed during proper absence.

25-4-44. Division of property between parties.

25-4-45. Child custody provisions - Modification - Preference of child.

25-4-45.1. Fault not considered in awarding property or child custody - Exceptions.

25-4-45.2. Intervention by attorney general or state's attorney when support assigned to

25-4-52. Visitation rights for grandparents - Authority of circuit court.

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