What I wish I knew before I filed
Hello and welcome to my blog posts. Please note that I am not giving you legal advice, and am not (most likely, anyway) already your lawyer unless you hired me. This is intended to be general advice, but you are advised to speak with a qualified attorney.
Many people wonder what, if anything, they should do BEFORE filing a divorce. In my experience, once a divorce is filed, people tend to dig their heels in and act like they are in a fight, even before anything has become contentious. Much of the work of a divorce can be done prior to filing, when no one is under extreme pressure (and I get it, if I get served with papers, I know that things are serious and I had better be prepared). We advise folks that there is a procedure to follow, whether or not a divorce has been filed and served on them (which happens either by you signing a piece of paper called an Admission of Service, which simply indicates that you have “received” the paperwork, or by being “served” by a process server or deputy sheriff). There is a third method of service - by publication - but that is reserved for cases where you don’t know where the other side is. Mailing paperwork to someone, or handing it to them without having him or her sign an Admission of Service, is NOT service.
Several things happen once you are served (or you serve the other side). First, it starts the clock. A divorce cannot be final in South Dakota until 61 days from the time the papers are served by the Plaintiff (the person commencing the lawsuit) against the Defendant (the person on the other side). Even then, a divorce is not done in 61 days unless the parties have reached an agreement (in writing) OR if the Defendant has completely failed to answer the Complaint. You do not want to default (that’s the name for what happens if you are sued and fail to reply). If you default, the other side can go straight to the Court and ask for anything that they requested in their Complaint. As I tell people, if I sue you for $5 and you sit back long enough and do nothing, guess what? You owe me $5! You lost by failing to participate.
So the opening paperwork is called a Summons and Complaint. That’s what the Plaintiff files against the Defendant. What the Defendant must do (within that 61 days) is either reach a final agreement (called a Stipulation and Agreement) or he or she needs to file an Answer to the Complaint (within 30 days). Again, get advice on doing this from a competent attorney so you don’t make a costly mistake. But file that Answer at the Clerk of Courts office (in the County in which the lawsuit was filed, not just any Clerk of Courts office) within 30 days of being served.
Once a lawsuit has been filed and an Answer filed, now there are only two ways for the lawsuit to be resolved - either the parties agree on a result (again, a Stipulation) or the parties need to go in front of a judge to resolve any unresolved issues. Clearly, it is vital to file that Answer just to protect yourself. Do not “trust” the other side when they say that an agreement is coming - if you are running up against the deadline, FILE AN ANSWER to protect yourself.
In divorce or custody/parenting cases, when the Summons and Complaint are filed, an Order also goes into place. It is a temporary order, but remains in place until the Court orders something different or the parties agree to something different. The temporary order generally sets out some basic rules - neither side gets to “dissipate, dispose of, transfer or encumber any marital asset” - makes sense, right? No one gets to sell the pickup truck to their cousin for $10 and claim that the couple no longer owns it. I have had more than one case where a husband or wife claimed that they owed money to a friend/neighbor/relative and that the Harley was the collateral, so they just signed it over. Nope. Doesn’t work that way. You are prohibited from signing over titles, mortgaging property, giving things away, etc., with minor exceptions - those exceptions are 1) by agreement of the parties; 2) by an Order of the Court after a hearing; or 3) in the usual course of business or for the necessities of life. Just for further explanation, that doesn’t mean that a new set of golf clubs are one of the necessities of life. That means if you are a seed salesperson, you get to continue to sell seeds.
The order usually continues on to say that neither party shall harass or pester one another. That’s not the same as a protection order, it is a “no howling at the moon” harassment order. The order also indicates, in many cases, that any insurance policies must remain in effect - life insurance, health insurance, vehicle insurance. While it might be tempting to cancel the other side’s vehicle insurance (or at least make him or her pay for their own) you cannot do that. It makes more sense if you think about it - if you cancel the vehicle insurance and health insurance of your spouse, and then they get into a car accident, those bills for the car and the medical treatment are now marital debts that you both are responsible for. So keep all insurances in place - it’s required.
The order also says that you cannot remove any minor children from the State of South Dakota - this is done to prevent someone from moving 10 states away and filing a divorce or custody action in that state, and trying to make the South Dakota resident spend additional dollars trying to fight a lawsuit several states away. Generally, people are allowed to take their children on vacations, or for weekends to see relatives, but you must get the written consent of the other side or an Order of the Court to take them out of South Dakota once a case has been filed. There is no such prohibition prior to filing a divorce.
The opening paperwork also contains a provision that says that whichever parent has been the primary caregiver of the children for the year leading up to the filing, is hereby declared the primary custodial parent, and the other parent is entitled to South Dakota Parenting Guidelines parenting time. All this goes pretty deep pretty quick, both as a strategy matter and all the nuances of the guidelines. But suffice to say, the kids are supposed to stay primarily with the parent who has been their primary caregiver if the couple does not live together. If the couple does stay living under the same roof, there is no primary or secondary parent - both parents are entitled to complete custody of their children, and neither parent (absent agreement) gets to say that this is “his Tuesday” or “her Wednesday.” People should, indeed, try to accommodate the normal schedules of one another, including time with the kids, but attempt to continue the normal parenting schedule even in turbulent times.
Taken together, I hope the takeaway point is this: do not move out of the marital residence until you have a parenting time arrangement in writing and in place. Do not trust the other side to say that “you can see the kids whenever you want.” I’ve seen it too many times that a parent moves out on the promise of equal parenting, only to find that the parent who remained behind then files a divorce, claims to be the primary custodian, tries to keep the kids away from the parent who moved, and then drags it out until this arrangement becomes the “new normal.”
My initial intention in writing this was to talk about how to resolve issues before filing a divorce. The three things that generally are going to have to happen (at least in cases where the couple doesn’t agree 100% before they start) is to 1) divide the property; 2) figure out child support and a parenting schedule; and 3) figure out spousal support, if any. Each of these tasks deserves its own post, which I will try to accomplish in the coming days and weeks.
But what starts as a “back of the napkin” analysis of property - you take the house, I’ll keep my retirement, you take the Hyundai, I’ll keep the Toyota, we’ll sell the personal property that neither of us wants, and we’re done - ultimately turns into a spreadsheet listing all the property, its value, and who gets it. It is the putting together of that spreadsheet, whether formally or informally, that is a good thing to start to do before you file. It gives both sides some idea of what he or she might receive, it balances out the assets of the marriage, and gives both sides a chance to say what he or she wants.
Even if the parties cannot agree, you are going to need to put values down for each asset anyway, so the sooner you start getting Kelly Blue Book (private party) values on cars, appraisals on homes (another entire separate topic I’ll talk about later), current statements on bills and investment accounts and bank accounts, the sooner you can have that sheet filled out. A sheet is not required - people can agree to a fair settlement no matter whether there’s a spreadsheet or not, but organizing the assets and debts and finding a fair division of them is an important step. Even if that only means going through the house (hopefully together) and choosing what items each of you wants, it is helpful.
So try (again, in any case of abuse or other concern, it is not advisable to try to negotiate a result, nor with a narcissist) to resolve property issues if possible. Try to work out a parenting arrangement before anyone moves out (but beware, it has become a strategy for some to move out with the children, then file and claim to be the custodial parent, withhold the children unless the remaining parent agrees solely to South Dakota Parenting Guidelines, and try to get a leg up in a custody fight). Try to gather information necessary for the division of property.
It’s OK, too, if you don’t know all this stuff. Lawyers have the ability to demand information necessary to the determination of these issues. If your spouse refuses to turn over documents, don’t let that rile you - you will be entitled to receive relevant information and should never risk your personal safety just to try to resolve an issue.
People should try to get as far as they can get without undue suffering and consequences. Lots of people say “let’s agree” on a result - what they really mean is, “let’s do what I say and if you don’t agree with me, you are refusing to agree at all.” That’s not true. You’re entitled to what you are entitled to, and should only negotiate your own terms if you completely understand your rights and the costs and pitfalls of litigation. Sometimes it is better to compromise - sometimes, going to Court is much less expensive than agreeing with an unfair position put forth by the other side.