How long does it take to get divorced?

A divorce in South Dakota cannot be granted until 61 days have passed from the date the Defendant was served with the opening paperwork.  The parties can reach an agreement at any point in that time, but the divorce cannot be finalized until 61 days have passed. 

How do you start a divorce proceeding?

Most divorces start by seeing a lawyer.  The party who is bringing the divorce (the Plaintiff) signs the opening paperwork, called a Summons and Complaint, which is then served on the other spouse (the Defendant).  To serve a Defendant, he or she must either be handed the paperwork by a deputy sheriff or process server, or, the Defendant must admit service of the paperwork by signing an Admission of Service (this doesn't agree to a divorce - it simply admits that the Defendant has received a copy of the paperwork so a process server or deputy does not need to be called).  In special circumstances, when the Defendant cannot be found, the Judge can grant permission to publish the paperwork in the newspaper in the county where the Plaintiff resides. 

What are the residency requirements?

In order to obtain a divorce in South Dakota, a person must be a resident of South Dakota when the action is commenced.  That person does not have to be a resident of South Dakota when the final Judgment and Decree is granted.  However, a person can live in South Dakota for only 1 day and be a resident of the State; there is no residency requirement other than to live here with the intention of remaining here. 

What if we agree on everything?

Many people who contact us believe that they have a complete agreement, and we will draw up agreements on behalf of people who have reached consensus on their own.  However, many times there are categories that the couple hasn't considered yet, and this office works with our clients to go through all the categories to make sure that agreement is reached in all areas, rather than leaving things out. 

What are the grounds for a divorce?

South Dakota has several grounds for a divorce.  Most divorces are granted based upon irreconcilable differences, a "no-fault" divorce.  For there to be irreconcilable differences, both sides must agree, in writing, that the marriage is no longer salvageable, or the divorce must be a default divorce.  If one side is not willing to agree to an irreconcilable differences divorce, the side seeking the divorce must prove to the Court a "fault-based" ground for divorce.  Those include: adultery, extreme mental or physical cruelty, abandonment (continuously gone for more than 1 year), habitual intemperance (intoxication that prevents a person from attending to daily business, lasting longer than 1 year), or conviction of a felony. 

What is a default divorce?

A divorce may be granted by default.  If the Plaintiff serves the opening paperwork on the Defendant, and the Defendant does not respond to the opening paperwork, the Plaintiff can go straight to the judge after 61 days from the time the Defendant was served, and be granted a divorce.  More than this, the Plaintiff may ask the judge for anything and everything that he or she asked for in the Complaint, including alimony, custody of the children, property, attorney's fees, and more.  If you have been served with divorce paperwork, it is crucial that you make a formal reply within that time period.  Even if the other side tells you that a proposal is coming, or not to worry about it, under no circumstances should you let 30 days go by without putting in a formal reply, or receiving from the Plaintiff or the Plaintiff's attorney a written promise that they will not seek a default judgment. 

We're trying to work this out on our own.  What do we need to think about?

A divorce requires several categories.  If there are children, you need to decide on the legal and physical custody of the children, child support (including who is going to cover the kids for health insurance), and visitation.  The parties need to divide the personal property, any real estate or houses, cars, retirement accounts, bank accounts, insurance policies, business interests, and debts.  The parties need to decide whether alimony (payment from one spouse to the other) is appropriate or necessary, as well as how to pay for the attorney to draw up the paperwork.

Can we do the paperwork ourselves?

Yes.  Several kits are available, and if the paperwork is done correctly, it will be accepted by the local clerk of courts and a divorce can be granted by the judge.  There are differences from state to state, and county to county, so you will spend some time getting familiar with all the local forms and rules. 

How much does it cost to get divorced?

There is a filing fee at the courthouse of approximately $95 for each case.  In addition, depending upon whether a lawyer is used, there is the cost of the attorney. Each divorce is different, so most divorce lawyers base their fees on an hourly rate. The more complicated the divorce, the more expensive it is going to be. 

How do we figure out child support and visitation?

Child support is based upon a formula.  It says, in essence, that for two parents who make X and Y amounts of money, they typically spend Z raising one child/two children/etc.  Whichever parent is the primary physical custodial parent, he or she receives child support from the other parent, and the custodial parent is responsible for paying all the bills for the children, including daycare, clothes, school lunches, and all activity fees.  The non-custodial parent pays his or her share of Z (for instance, if the chart says that a couple spends $1,000 raising 3 children when their combined income is $4,000, and the non-custodial parent makes half of the $4,000, he or she would pay half of the $1,000 or $500 per month).  The non-custodial parent is also expected to pay the costs to feed and entertain the kids when he or she has them on visitation, but the custodial parent is expected to provide all clothing for visitation.

• There is a website for calculation of child support: CHILD SUPPORT CALCULATION.

• South Dakota also has standard parenting guidelines, depending on the ages of the children and how far apart the parents live - the Court will often use these "guidelines" to establish visitation when the parties cannot agree on any other terms: SOUTH DAKOTA PARENTING GUIDELINES.

What about joint custody?

Joint "legal" custody generally applies to most divorces. as well as children from unmarried parents.  The parties are simply agreeing that they will work together in the best interests of the children, that they will not bad-mouth each other or cut off contact, that they will both have open access to medical and school records, that they will notify each other of accidents or illnesses, and that they will confer with each other on major items of importance.  Joint physical custody means the children will spend equal amounts of time in each home. 

What are joint physical custody arrangements?

They generally fall into three categories.  One is where the parents have the children for a week at a time, then rotate.  Another is a schedule that rotates throughout the week, with parent A having them Monday and Tuesday, parent B on Wednesday and Thursday, then parent A having them Friday through Sunday, and then rotating that schedule the next week (often referred to as a 2/2/3 arrangement).  This reduces the number of consecutive overnights in each home (and how long either parent goes without seeing the children), but also avoids daily transitions, and guarantees three-day weekends to each parent.  A third method often revolves around a work schedule, where one parent has the kids during the day and the other parent at night. 

Is there child support with joint physical custody?

Yes. South Dakota has a formula for calculating child support in joint custody situations, but it really amounts to a formula where one parent pays the other for the half of the time the other parent has the kids, and the second parent pays for the time the first parent has the kids.  If one parent makes more than the other, he or she will pay more for that half of the time, and when you subtract one amount from the other, whoever owes more still pays that amount.  Support in joint custody situations is far lower than it is in more traditional arrangements.  The parties must also have an agreement regarding paying for health insurance, daycare, out of pocket medical costs for the children, and paying for other expenses. 

How does joint custody child support work?

Let's say parent A pays $200 per month under the joint custody "cross-credit" child support formula discussed above.  That doesn't mean that parent B pays for everything else.  Each parent pays the food and daily costs of having the children in his or her care.  Each parent pays his or her percentage of the cost for medical and daycare.  The parties must also have a formula to pay for activities, school clothes, school lunches, school pictures, presents for friends' birthday parties, and other social and educational needs of the children.  It is not fair for one parent or the other to have to shoulder this entire burden, and it is not fair to assume that it will all just work out.  We often draft agreements that instruct the parents to keep receipts, and compare them periodically to make sure that both sides are paying their fair share. 

I was never married, but we had a child.  What do we need to think about?

The issues in unmarried couple situations involve establishing paternity, then setting up custody, visitation, and support.  In South Dakota, no father has parental rights just by being on the birth certificate, or by the child having his last name.  The Judge has to declare that person the father before he has full parental rights.  The formula for child support and visitation is the same as that for married couples. 

I'm paying child support but not seeing my child.  What can I do?

The Office of Child Support Enforcement's entire job is to establish paternity and start collecting support for children.  They do not establish joint legal custody or visitation rights for fathers.  Fathers need to bring a motion in front of a judge to get their visitation rights.  They should look at the South Dakota Parenting Guidelines as an example of what they might receive for visitation.  This office can assist you in filing the appropriate paperwork and getting a hearing. 

Can a divorce get my name off the house or other bills?

No.  The divorce only applies to the husband and wife.  It does not bind creditors.  However a divorce agreement can say that one spouse or the other must refinance or otherwise remove the name of the other spouse from all accounts, and show proof that they have done that.  Please see information on Joint Debts listed below, or our brochure on this subject. 

What is S.M.I.L.E.?

It is a program called Start Make it Livable for Everyone, and all divorces involving children in Minnehaha and Lincoln Counties in South Dakota require that the couple attend SMILE.  It is held on the 2nd and 4th calendar Tuesdays of each month, in Courtroom 1A of the Minnehaha County Courthouse, at 7:00 p.m.  You need to sign up and pay $5.  The parents do not need to attend together and children may not attend with you.  Please see our brochure on this subject. 

How much will my divorce cost?

Uncontested divorces can usually be handled in approximately 4 hours of attorney time, plus a filing fee of $95, plus sales taxes, and the costs of serving the papers on the other side.  Should a hearing be necessary, hearings can add several hundred dollars to the cost, as it takes time to draft the paperwork necessary for a hearing, to hold the hearing, and then to do the paperwork to draw up the judge's order.  We tell clients to expect small hearings to cost in the neighborhood of $500-$600, and longer hearings to cost closer to $1,000.  If a trial is necessary, it usually adds at least $2,000 per trial day to the cost of the divorce, for the time necessary to  prepare the case, contact witnesses, try the case, and prepare the final paperwork. 

Do you take payments?

This office estimate the cost of its work, and works with the client to establish a method of paying.  We accept cash, check or credit cards, and should a matter to resolved more quickly than anticipated, we refund all unused portions of the retainer.  In some circumstances, we can work out a payment plan with the client, but it almost always involves payment of the entire fee within 60 days, including the majority of the funds paid up-front. 

Do you offer a free initial consultation?

We do offer a free consultation.  We will strive to answer short questions as quickly as possible.  At that visit, we will go over the information that needs to be collected in order to achieve a fair settlement, and the information needed to get the paperwork going.  We will also discuss with you the strategy involved in achieving an appropriate settlement, and all the costs involved. 

How do I contact your office?

 We can be reached by telephone (605-338-3220) with voice mail backup 24 hours a day.  We can be reached by fax at (605-338-2145).  We can be reached by email (tom@thomaskellerlaw.com) by clicking this link. 

JOINT DEBTS AFTER DIVORCE

 In the course of a divorce, the parties or the judge often decide which one is supposed to pay which debt. However, just because the other side is supposed to pay a debt, and the Court orders him or her to pay that debt, it doesn’t mean that the creditor is going to remove your name from the account. The divorce court has no authority to order credit card companies or Ford Motor Credit to do anything. Because these issues arise so often, we wanted to send you this information so you can protect yourself as best you can, and make the best decision about how to handle your credit. Please remember: 

1. A divorce has no effect on a creditor’s right to collect its debt from me. 

2. A creditor does not have to release me from an existing joint obligation, just because I am getting divorced. 

3. I should obtain a credit report to see the debts listed in my name before filing divorce. 

4. I should call each creditor shown in my report to discuss my pending divorce and to attempt to establish a separate account for myself, transferring my share of the balance of the joint account to a new separate account, and closing the joint account. 

5. If a creditor refuses to “break” the joint account into separate accounts, then I should send by certified mail, return receipt requested, a notice to the creditor at the address provided in the credit report, noting that I will not be responsible for any new charges made to the account after a specific date. I should keep a copy of this letter and of the return post card acknowledging receipt, to defend myself from any later attempt to collect the debt from me. 

6. I should continue to make at least the monthly minimum payments on joint accounts while the divorce is pending. 

7. If necessary, I should consult a reputable debt-counseling agency such as LSS/Consumer Credit Counseling, to work on budgeting for my new single status, and to create a repayment plan with creditors. 

8. That sale of a residence or other major assets, and pay-off of a joint obligation, may be the best way to terminate a major joint obligation. 

9. That bankruptcy is a remedy to consider before the divorce, if it is apparent that neither I, nor my spouse, will be able to maintain two separate households and service our existing joint debts through a repayment plan.

We are here to help manage your marital debts along with the remaining issues of the divorce. Please let us know of any specific questions you have.