Divorce With Minor Children

You are strongly encouraged to use the Guide and File Program to complete the forms required to start a divorce proceeding. Guide and File will ask a series of questions that will be used to populate the required forms correctly. You will then print and file those forms with the appropriate court.

General Information

If you are representing yourself, you can first review "A Guide for Representing Yourself in SD Courts." You should also review "General Instructions for Self-Represented Divorce With Minor Children", "General Definitions," and "South Dakota Parenting Guidelines." This will provide a great step to get you started. You will also need to review the SMILE Program if you are in the 2nd, 4th, or 7th circuits.

Fees

You can review "Schedule of Court Costs" to see how much it will cost to complete your divorce action. If you wish to make a request to the Court that you not be charged for the filing or service fees to complete your divorce, you will need to fill out and file "Motion to Waive Filing Fee & Service of Process Fee." You will also need to have your "Financial Affidavit" completed in order to explain your financial situation and request the waiver. You will bring these forms to the clerk of courts when you file for divorce.

Starting a Divorce

First, complete the "Case Filing Statement" either in Word or Word form. For divorce, select "Divorce" under the Family section on the first page. Next, select Plaintiff/Petitioner under the Family section on the second page. Also complete your personal information. As will all documents, complete in black ink or type and be sure to read and follow all instructions.

Next, complete the "Summons." This will inform the other party you are filing for divorce and require them to file an answer. You also need to attach a copy of the "South Dakota Parenting Guidelines." The Summons also contains a Temporary Restraining Order which you and your spouse will be bound by. Ensure you understand all your listed rights and duties.

The "Complaint" is also required. It tells your spouse and the court what you are asking for and why. This form must be signed in the presence of a notary or clerk of court. Be sure you bring proper identification when you present this form.

Each party completes a separate "Financial Affidavit" which explains the financial situation of each party. Make sure you enter the values current as of the day you complete the affidavit. This form must also be signed in the presence of a notary or clerk of court. Be sure you bring proper identification when you present this form.

File the Completed Paperwork

Once you have completed all the forms listed above, make two copies of the documents. One will be for your records and one will be to serve on your spouse. Take the originals to the clerk of courts and tell them you intend to file for divorce. You will need to pay the filing fee at that time, or your case may end up being dismissed. If you completed the fee waiver paperwork, provide it to the clerk with the rest of your paperwork.

Arrange for Service on the Defendant

In order to start your divorce, the Defendant (your spouse) must be served with copies of the Summons, the Parenting Guidelines, and Complaint that you filed with the clerk of courts. You can also include copies of your financial affidavit, a blank copy of the "Financial Affidavit", a blank copy of the "Instructions and Answer", and the "Checklist for Self-Represented Divorce".

You will also need to include an Admission of Service document. The "Instructions for Service of Summons and Complaint" explains how to serve the defendant. The Admission of Service form must be signed in the presence of a notary or clerk of court. Be sure you bring proper identification when you present this form.
  1. Hand Delivered: complete "Admission of Service of Summons and Complaint"
  2. Mailed: complete "Notice and Admission of Service of Summons and Complaint"
  3. Sheriff's Office Delivery: does not require a form, but will require a fee for service

Responding to the Complaint

After the defendant receives notice of the beginning of the divorce action, the defendant completes the appropriate form to acknowledge they received notice. Defendants can use the "Instructions for Service of Summons and Complaint" for instructions on properly filling out forms.
  1. Hand Delivered: defendant completes "Admission of Service of Summons and Complaint"
  2. Mailed: defendant completes "Notice and Admission of Service of Summons and Complaint" This form must also be signed in the presence of a notary or clerk of court. Be sure you bring proper identification when you present this form.

Filing an Answer

After the defendant admits to service, the defendant must complete the "Answer". The Answer is a written response to the Complaint. The Answer must be filed with the clerk of courts and served on the Plaintiff (person who filed the divorce action) within 30 days after receiving the Summons. If the defendant does not file an Answer, the court may grant the divorce as requested in the Complaint by entering a Default Judgment and Decree of Divorce. This form must also be signed in the presence of a notary or clerk of court. Be sure you bring proper identification when you present this form.

Divorce Proceedings

There are three main ways the divorce proceeding will go. It can be a stipulated divorce, a contested divorce, or a default divorce.

  1. A stipulated divorce is when both parties agree on the terms of their divorce. If both parties agree to the divorce, they must complete and file a "Stipulation and Settlement Agreement With Minor Children" and "Affidavit of Plaintiff and Defendant as to Jurisdiction and Grounds for Divorce." More instructions about a stipulated divorce.

    After the forms are completed, a hearing will be scheduled. Both parties must attend. Each will complete the "Judgment and Decree of Divorce" and bring it to the hearing. If the Judge signs the form, the clerk of court will complete the "Notice of Entry of Judgment and Decree of Divorce".

  2. A contested divorce is when the parties cannot come to an agreement on the terms and conditions of their divorce. This means a hearing must be scheduled by contacting the clerk of courts. Once the date is set, the "Notice of Hearing" must be completed. One copy should be filed with the court and the other needs to be served on the other party. The "Affidavit of Mailing" also needs to be completed and filed with the court. The clerk of court can explain how the process moves forward after a hearing date has been set. You may also want to contact a lawyer in the case of a contested divorce due to the complex nature.

  3. A default divorce occurs when the defendant does not file an Answer or respond within 30 days of service and does not cooperate with the Stipulation and Settlement Agreement. After waiting 60 days with no answer, the plaintiff can file the "Affidavit for Default", "Application for Judgment and Decree of Divorce & Notice of Hearing", "Affidavit of Mailing", and "Affidavit of Military Status." After filing these with the court, a copy should be sent to the defendant via certified mail.

    After the forms are completed, the Judge will schedule a hearing that you must attend. Take the "Judgment and Decree of Divorce" and "Child Support Filing Data Form" to the hearing for consideration by the Judge. If the Judge signs it, the clerk will then take care of the "Notice of Entry".

Dismissing a Divorce

If at any time, prior to the Judge granting the divorce, the parties reconcile their differences and wish to dismiss the divorce action, they must complete and file the "Stipulation and Order for Dismissal Form". If one person wants to dismiss, but cannot get a signature from the other party, they can file the "Motion and Order for Dismissal."

Motions

If you want to file, or you receive, motions filed with the court; such as a motion for discovery, a motion to compel etc., there are two forms that may be used when necessary. You can either consult a lawyer or do research to determine if any motions should be filed. Either party can file motions with the court.

To file a motion, complete the Motion document, the "Motion Affidavit in Support", explaining your motion, and an Affidavit of Mailing proving you sent a copy to the opposing party. These forms should all be filed with the court.

If you received a motion, complete the "Responding Affidavit" and "Affidavit of Mailing". Send one copy to the other party and file one with the court.