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The Difference Between a Divorce and an Annulment in South Dakota

South Dakota allows couples whose marriages are recognized under its family law to seek release from a marriage contract through divorce or annulment. The South Dakota judiciary handles the filing, reviewing, and adjudication of these cases and court records are available to interested persons. 

What is a South Dakota Divorce Decree?

A divorce decree is a court declaration that dissolves a marriage, removes the bonds of matrimony, and restores the divorcees to the status ascribed to unmarried residents (S. D. Cod. Laws § 25–4–1)..

The records contained in documents related to family court include both marriage and divorce records. Both types of records contain information that is considered very personal to the parties involved, and it is recommended that those parties maintain these records with care to make changes in the future. The personal nature of these records results in both being considerably more difficult to find and obtain when compared to other types of public records. In many cases, these records are not available through either government sources or third party public record websites.

What is an Annulment in South Dakota?

An annulment is a judicial order that invalidates a marriage contract. The order takes effect from the date of solemnization of the marriage, one the court of competent jurisdiction finds that the marriage is void or voidable. Per S. D. Cod. Laws. § 25–3 and S. D. Cod. Laws. § 25–1, such annullable marriages include the following:

  • Where either spouse is still legally married to another party;
  • Where either spouse is of unsound mind
  • Marriage of underage persons
  • Marriage solemnized via fraud
  • Where either party is physically incapable of marriage
  • Incestuous marriages and marriage with step relative
  • Bigamous marriages

Records on divorce and annulment are generally available to public requesters unless the parties involved, the court or a statute makes provisions to sequester the records from unauthorized access. This restriction typically applies to documents containing information on minors, and information that is potentially injurious to the physical, social, or financial security of the litigants.  

Annulment vs. Divorce in South Dakota

Suffice to say that divorce and annulment both remove the bonds of matrimony and restore the parties to the status of unmarried citizens. Nonetheless, a divorce is very different from an annulment. First, a divorce holds that a marriage contract, and the actions undertaken under the contract, are valid pending the decree. Conversely, an annulment means that a marriage never existed, and the declaration rescinds all actions taken per the marriage contract - although the children are legitimate. Furthermore, a divorce action may begin anytime the parties become incompatible or seek dissolution based on misconduct. Conversely, there is a time limitation on several grounds of annulment. For instance, the time for annulling the marriage of an underage person is four years post-maturity. The same period applies to forced consent and fraud as grounds for annulment.

Is an Annulment Cheaper Than Divorce in South Dakota?

No, an annulment costs more than an uncontested divorce in South Dakota due to the added expenses of court fees, attorney fees, and professional fees. The latter makes annulment expensive. The petitioner must provide the results of admissible medicolegal evidence, or hire an investigator to conduct background checks, find witnesses, and obtain other relevant/admissible evidence.

What is an Uncontested Divorce in South Dakota?

An uncontested divorce is one where both parties facilitate the amicable dissolution of the marriage contract—and other relevant matters—during a divorce proceeding. Generally, the process eliminates the need for a court trial, cut down on professional fees, and cushions the emotional aftermath of divorce compared to a contested divorce. Besides, an uncontested divorce may also refer to a divorce where the respondent does not appear or respond to a divorce petition. S. D. Cod. Laws. § 25–4–17.4 authorizes the court to grant a divorce order in this case. Meanwhile, the parties must prepare a divorce agreement, which describes the division of marital estates, debt, and alimony. It must also make provisions for child custody and child support. 

Where to Get an Uncontested Divorce Form in South Dakota

The clerk of the family division of the circuit court provides the forms used in uncontested divorces. The intending divorcee may also download, complete, and file the divorce forms available on the court forms webpage. Furthermore, self-represented litigants must consult the guide and file page for instructions on how to complete an uncontested divorce. However, before initiating a divorce action, the intending divorcee or the respondent must meet the South Dakota residency requirement (S. D. Cod. Laws. § 25–4–30).. Divorce court records are available for public perusal at the court or by mail request for the court records of interest—unless the court or statute restricts the disclosure.

Records that are considered public may be accessible from some third-party websites. These websites often make searching for records simpler, as geographic locations do not limit their activities. Thus, the search engines on third-party sites may help when starting a search for specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must provide:

  • The name of the person involved in the record, unless said person is a juvenile
  • The location or assumed location of the record or persons involved in the case. These include information such as the city, county, or state of residence or accusation.

Third-party sites are independent of government sources and are not government-sponsored. Consequently, record availability on third-party sites may vary.

How Do I Get a Copy of my Divorce Decree in South Dakota?

Copies of divorce decrees are available at the office of the clerk of court. Using the South Dakota court directory, locate the circuit court that handled the case and visit the office of the clerk in person and during business hours.  

Requesters may also mail a written request for a copy of the decree to the court. The request must contain payment for associated fees and a government-issued photo I. D. The administrative staff will also require details such as the case number, the names of divorcees, and the date of adjudication to retrieve the divorce decree.

Divorce and marriage records may be available through government sources and organizations, though their availability is not guaranteed. Similarly, their availability through third-party websites and companies is not guaranteed, as these organizations are not government-sponsored, and record availability may vary. Finally, marriage and divorce records are considered extremely private due to the information they contain and are often sealed. Bearing these factors in mind, record availability for these types of records is not guaranteed.

How Do I Get a South Dakota Divorce Decree Online?

At present, the judiciary does not process online service requests for copies of divorce decrees. The concerned requester must visit the specific court that handled the case in person to get a divorce decree in South Dakota.

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