Understanding Marriage Annulment in South Dakota

Under South Dakota law, an annulment is a court order, also known as the Decree of Nullity, that invalidates a marriage. According to the order, there was a fundamental flaw at the outset of the marriage that rendered it illegal or void. When an annulment is granted, it treats the marriage as if it never existed. Annulments and the rules governing them in the state are set down in the South Dakota Codified Laws Chapter 25-3.

Annulments and divorces are different procedures conceptually. While a divorce is used to dissolve or end a legal marriage, an annulment declares a marriage invalid from the start, so it can be treated as if it never occurred. Annulments aim to address marriages that were flawed from the beginning, both legally and in reality, especially in cases where one of the spouses was harmed by the relationship. For example, underage spouses, spouses in a bigamous marriage, or those forced into a marriage have grounds to seek an annulment.

When a court grants an annulment, several legal outcomes may occur. The obvious one is that the marriage is invalid and the spouses are reinstated to single status. The court may also address several secondary issues, such as parenting responsibilities like child support, asset and debt division, and spousal maintenance, depending on the particulars of the case. For more detailed information about annulments, interested parties may look up South Dakota Family Court Records online.

Grounds for Annulment in South Dakota

Under SDCL Chapter 25-3, the following are valid grounds for a marriage to be annulled by the courts.

• A marriage may be annulled if a previous husband or wife of either husband was still alive at the time of the marriage, and the prior marriage was still in force. Either the current spouse or the former spouse of the defendant may file for an annulment as provided in SDCL Chapter 25-3-1.
• Under SDCL Chapter 25-3-2, a marriage may be annulled if either party was of unsound mind at the time of the marriage, unless, after coming to reason, the party freely cohabited with the other person as husband or wife.
• SDCL Chapter 25-3-4 allows a marriage to be annulled if one of the parties was under the age of legal consent at the time of the marriage, and the marriage was contracted without the permission of their parents or legal guardians. The annulment may not be granted if they freely remained or cohabited with the other spouse after reaching the age of consent.
• A marriage may be annulled under SDCL Chapter 25-3-5 if the consent of either party was obtained by force or coercion at the time of the marriage. This holds unless the forced party continues to live with the other as husband or wife freely after the marriage.
• A marriage may be annulled by an action in the circuit under SDCL Chapter 25-3-6 if, at the time of the marriage, consent of either spouse was obtained by fraud, unless the spouse with full knowledge of the fraud continued to live with the other as husband or wife.
• A spouse may seek an annulment under SDCL Chapter 25-3-8 if, at the time of the marriage, either spouse was incapable of performing marital duties or entering the marriage state, and such inability continues and appears to be incurable.

Eligibility Requirements for an Annulment in South Dakota

Annulments are not available for every marriage in South Dakota. Who is eligible to file for an annulment typically depends on the specific grounds for annulment being filed. First and foremost, an annulment must be filed in the local Circuit Court for the county where either spouse resides.

A breakdown of who may file and under what conditions is provided below:

• For bigamous or prior marriages, the spouse or the spouse from the previous marriage may file for annulment, provided the previous spouse is still alive.
• For cases where one party was of unsound mind, a petition for annulment may be filed by the unsound party or their relatives or guardians at any time before the death of the unsound party.
• For an underage marriage, the suit may be filed by the underage spouse within 4 years after reaching the age of consent or by their parents or guardians at any time before the minor reaches the age of consent.
• When a spouse was forced or coerced into a marriage, they may file for an annulment within 4 years after the marriage.
• A spouse whose consent was obtained through fraudulent means may file for an annulment within 4 years after discovering the facts about the fraud.
• When a spouse is physically incapable of consummating the marriage, the other party injured by this fact may file for an annulment within 4 years after the marriage

However, a recurring theme in the annulment statutes is that if the other spouse continued to cohabit as a husband or wife even after discovering the flaw in the marriage, they may waive their right to an annulment.

Civil annulments concern the legal aspects of a marriage and are handled exclusively by the county circuit court. Religious annulments, on the other hand, are performed by religious organizations and have no legal effect on the couple.

How to Get a Marriage Annulled in South Dakota

Interested parties may petition for an annulment at the local circuit court for the county where either spouse resides. Although the exact process and required paperwork may vary slightly by county or judicial district, annulment petitions may follow these basic steps:

Step 1: The first step is to confirm the grounds for annulment and gather any evidence that supports them. These include marriage certificates, medical records, birth records, criminal records, and witness statements, depending on which grounds are being used.

Step 2: The next step is to file the required forms and documentation at the South Dakota Circuit Court for the county where either spouse resides. These forms are available online or from the court clerk’s office and include the Petition for Decree of Nullity, Summons, Civil Cover Sheet, and any supporting documents. The petition is also required to pay the filing fee or request a fee waiver by submitting the Motion to Waive Filing Fee, Affidavit of Indigency, and the Order Waiving Fees. The forms must be completed fully and accurately and submitted to the clerk of court.

Step 3: The petitioner must serve the respondent with copies of the documents filed at the circuit court. This service must be performed by the local sheriff’s office or a private process server. Whoever performed the service must provide a proof of service or affidavit of service to show the respondent received the documents.

Step 4: The other spouse or respondent may file a formal reply where they admit, deny, or contest the annulment. There is no statewide form available, so this reply must be drafted by the respondent or their attorney. If the respondent does not answer, the petitioner may file a Motion for Default Judgment asking the judge to grant the annulment and all the requests from the original petition.

Step 5: After a response contesting the annulment, both parties may obtain a relief to prepare for the case and file additional documents and temporary orders. These include motions for temporary orders such as custody, child support, assets, and residence use, as well as affidavits supporting the orders, financial statements, and financial affidavits. These forms are similar to those used during divorces and are available from the local circuit court clerk’s office.

Step 6: Both parties collect evidence to prove or disprove the grounds for annulment and attend any preliminary hearings, mediation, and settlement negotiations. Parties may use these to settle issues surrounding the annulment, such as custody and asset management. Any agreements may be documented for the judge to sign at the conclusion of the case.

Step 7: During the final hearing, the judge hears testimony, examines any evidence, and decides whether to grant the annulment. If the judge does not grant the annulment, the couple may have to seek a divorce to end the marriage. If the judge grants the annulment, they sign the Decree of Nullity, and the marriage is legally declared void. The clerk issues the Notice of Entry of Judgement and sends certified copies of the decree to all parties.

Required Forms and Documentation for an Annulment in South Dakota

In some cases, there are no official annulment forms; hence, standard forms for civil issues and documents drafted for that specific purpose are used instead. Particular counties and jurisdictions may also have their own specific documents for different purposes. It is recommended that petitioners contact the Circuit Court before submitting their petition to receive advice on county-specific documentation and procedures. The following forms are required documentation for requesting an annulment in South Dakota.

• The first form required is the Petition for Decree of Nullity. This is the legal document that initiates the annulment process, notifying the court and the other spouse (the respondent) of the annulment and the grounds for it. There is no official form, but petitioners may use a standard fill-in-the-blank petition form available from the clerk of the circuit court.
• Forms that accompany the petition include the Summons and the Civil Cover Sheet. The Summons is used to notify the respondent about the case and must be served to them with a copy of the petition. The civil cover sheet provides the court clerk with all the basic information about the case, including the names of parties, the nature of the case, and other administrative and docketing information.
• Notice or Proof of service to show the respondent has received their copies of the petition and summons. Most courts provide their own version of this form.
• Response is the form used by the other spouse(the respondent) to answer the original petition and accept or contest the grounds of the petition. Although there is no annulment-specific response form available online from the South Dakota Unified Judicial System, each court typically provides a version.
• Other forms that may be filed include the Motion to Waive Fees, Financial Affidavit Form, and the Order on Motion to Waive Fee. These forms are required for individuals to request a waiver of court costs, including filing fees and service of process fees.
• Other forms, such as temporary order motions, may be required to request temporary decisions on custody and support, depending on the case.
• At the end of the case, if the annulment is granted, the petitioner will be issued a Decree of Nullity. In some jurisdictions, it will be a Record of Divorce or Annulment form.

Typically, these forms can be obtained at the County Clerk of Court’s office, where the initial annulment petition will be filed. The staff in the office will also be able to provide not only the required forms, but also information about local procedures and filing costs.

Other supporting documents that may be submitted during the case, depending on the annulment grounds, include discovery documents and evidence such as testimony, witness affidavits, marriage records, medical records, evidentiary documents, birth certificates, and financial documentation.

Where to File for an Annulment in South Dakota

Annulments in South Dakota are filed exclusively at the state Circuit Courts, which serve as the courts of general jurisdiction. The court does not have a separate family court or domestic court; instead, all domestic issues, such as divorce, custody, maintenance, and annulments, are heard in the civil division of the Circuit Court.

The petition for annulment must be filed in the county where either spouse resides. This is where hearings and cases will take place. Although annulment generally follows statewide laws, local procedures may vary by county or judicial district, resulting in some minor differences, such as specific local forms or templates, hearing schedules/timelines, and mediation requirements.

Annulment Timelines and Waiting Periods in South Dakota

South Dakota laws do not impose any statutory waiting periods on annulment proceedings. Some states may have cooling-off periods that affect divorces; however, South Dakota has no mandatory delays that come between the initial filing of the annulment petition and the final judgment. This means, in theory, annulments may be concluded much quicker. In actuality, the duration of an annulment case will depend heavily on the case, the nature or complexity of the grounds, and court scheduling.

Typically, an annulment may be faster than a divorce when the grounds are uncontested and clear. However, they may take even longer if the grounds are contested and the petitioner must provide evidence to prove the grounds they claim, such as fraud, coercion, and lack of mental capacity. Having complete and well-organized paperwork may also speed up the timeline of an annulment.

Factors that may contribute to the delay of an annulment case include the following:

• The annulment was contested and involved extensive evidentiary hearings, testimony, medical evaluations, and other issues to establish grounds for the annulment.
• The petitioner failed to gather all required documentation and file it with the clerk or serve the respondent properly. Missing and incomplete paperwork will stall the case until it is corrected.
• Delayed negotiations regarding asset division and parenting issues, such as custody, visitation, and support, may hold up the annulment case until these matters are settled.
• Administrative issues at the court, such as case backlogs and scheduling problems resulting from docket congestion, may delay hearings and other aspects of the case.

Costs and Court Fees for an Annulment in South Dakota

Petitions to the courts for an annulment typically include expenses such as filing fees, attorney costs, and other potential costs, including a service fee, hearing costs, and other court costs. The full cost of an annulment will generally depend on whether the annulment was contested, the grounds for the annulment, and whether the services of an attorney were used.

The following are some typical costs associated with filing for an annulment in South Dakota. These fees are usually paid to the court to cover the cost of processing and maintaining legal documents.

• The filing cost for the initial petition for annulment is $97. It consists of a $50 filing fee, a $40 court automation surcharge, and a $7 law library fee.
• Serving the respondent may be done through the local sheriff’s office or a private process server. This costs between $30 and over $100, depending on the distance/location, the number of attempts, and any additional administrative charges.
• The respondent will pay a fee of $25 to file their response to the petition.
• There may be additional court costs and miscellaneous expenses, such as discovery costs for obtaining expert testimony and evaluations, as well as basic record and copy fees.

As with most cases, attorney fees are the most variable fees. A lawyer can assist greatly during an annulment case by drafting pleadings, gathering evidence, and attending hearings. They may charge a flat fee for a simple, uncontested case, but costs may become substantial if the annulment is contested and requires a lot of investigation and paperwork. If a petitioner cannot afford the costs of a lawyer, South Dakota law allows them to represent themselves (Pro Se) in court. This eliminates attorney fees and saves money, but filing fees and service costs will still be charged unless they are waived.

Interested parties may petition to have court costs and fees waived by filing the e Motion to Waive Fees, Financial Affidavit Form, and the Order on Motion to Waive Fee form. If the motion is granted, the filing and service of process fees will be waived. Instructions on how to obtain these waivers are available in the Fee Waivers section of the Unified Justice System, Self-Help website.

After the Annulment: What Happens Next?

After a court grants an annulment, it issues the final judgment or decree of annulment, which declares the marriage invalid or void. This means the marriage is over and is treated as if it never existed.

Although the specific consequences vary by state, the following are some of the typical effects.

• Both spouses are legally restored to single status as if they were never married and may remarry immediately without any waiting period.
• The marriage is void, and although its records remain on file, court records will indicate that it has been annulled.
• There is no community property to share, as there was no marriage. The court will determine how to share assets based on legal ownership and contribution, even for assets acquired during the relationship. The court may still divide assets to prevent unfair outcomes when resolving property ownership disputes.
• The courts typically do not award spousal support or alimony after an annulment, as the marriage was never considered valid. However, if circumstances justify it, for example, one spouse solely depended on the marriage for their finances, the court may order temporary support or one-time financial support.
• Annulment does not affect the rights of children born during the marriage. The court will determine custody, visitation, support, and all other parental duties with the best interest of the child in mind,
• An annulment also gives the spouses the right to request a change to their former name as part of the annulment judgment.