If you’re considering starting the divorce process or even looking into your options, one of the most common questions is “where do I start?” That thought alone can be overwhelming and downright paralyzing. Inform. Educate. Empower. Those are the values that drive our team. So today, we are going to guide you through the divorce process so you have a general understanding of the process.
- Summons and Complaint: Each divorce or custody proceeding starts with a summons and complaint. This is letting the other party know of your intent to start an action (the summons) and why you’re starting the action (the complaint). Every divorce no matter how contested or amicable begins this way.
- If you have minor children, you must also serve the South Dakota Parenting Guidelines with the summons. As soon as service is completed (details below), the South Dakota Parenting Guidelines become an order of the Court. This gives custodial parents (the parent who was mostly responsible for raising the child) guidelines on the MINIMUM amount of time non-custodial parents (the parent who does not have the child the majority of the time) gets to see the children.
- Also served with the Summons (regardless of the existence of minor children) is the Temporary Restraining Order. This is not to be confused with a Protection Order, which is an entirely different legal proceeding with criminal implications. The temporary restraining order prevents parties from moving or selling assets, removing the minor children from the state, changing insurance or beneficiary designations, or disturbing the peace of the other party. Once this is in effect the parties need either the other party or the court’s consent to act in those regards.
- The summons and complaint must be personally served on the other party. Service is done through a process server or sheriff (any uninterested party over the age of 18) confirmed by an affidavit of service. Alternatively, the other party may sign what is called “an admission of service.” Either way, the Court requires proof that the other party, the Defendant, received the paperwork personally.
- As soon as the papers are served on the Defendant (your spouse) a 60-day waiting period begins. In South Dakota, a divorce may not be finalized until 60 days after the service of the summons and complaint. Although many divorce proceedings exceed 60 days.
- If you live in Minnehaha or Lincoln County in South Dakota and you are seeking custody or a divorce, you must also complete the SMILE co-parenting program through the Unified Judicial System Website.
After the service of the summons and complaint a number of things could happen depending on the circumstances of your case. Examples of subsequent actions are as follows:
- Discovery: Discovery is the formal process of gathering information from each side. This includes financial documents, answers to questions, medical records, counseling records, retirement information, home appraisal, bank statements, and requested settlement. This process can be done formally or informally. Formal answers are under oath.
- Interim Orders: It may be necessary to set interim child support amounts, alimony, and/or custody arrangements. This can be done by agreement (stipulation) or, if necessary, through a hearing with the court.
- Appraisals: it may be necessary to get appraisals for property, particularly antiques, tools, guns, boats, vehicles, and/or real property (such as the marital home.)
- Mediation: Mediation and/or settlement conferences are common ways that parties settle their differences outside of court. Typically this involves meeting with a neutral third party and trying to agree on the divorce and/or custody arrangements. The Court still has to approve all mediated settlements.
- Custody Evaluation: If custody is disputed, the Court may order or the parties may stipulate to a Custody Evaluation. This process allows a third party to talk to doctors, family, friends, and care providers. There are home studies, interviews, and possible additional testing (psychological, drug, violence, etc).
The ultimate goal is to get your divorce completed as quickly and as cost effective as possible without compromising what you are due. It is important to pick an attorney that solely focuses on family law and divorces to avoid undue delay and ensure that your time and money is spent wisely. If you have any questions about the process or would like to schedule an initial consult, please contact our family law team at 605-702-4997.