Key Considerations for Divorce
Pleadings and Filings
When you make the decision to divorce or have been served with divorce papers, there are several things to consider in order to protect yourself. If you have been served with papers for divorce, you will have 30 days to file an Answer to the Complaint. For example, in South Dakota, SDCL 15-6-12(a) applies. In Washington, DC, Superior Court Rule 12 requires an Answer to a Complaint for divorce be filed within 21 days.
If you do not file an Answer to the Complaint within the time specified by law, default judgment could be entered against you. Default judgment entered against you can cost you significantly and result in the judge granting the plaintiff everything they request. Under limited circumstances you might be able to have default judgment set aside, but you will not want to risk it since it is not guaranteed you can set aside default judgment once it has been entered against you. You should ensure you file an Answer to the Complaint asserting your requests and denials to protect yourself within the time prescribed by law.
If you are the person filing, you will be required to have your spouse served personally in most circumstances or they can sign an Admission of Service. Some jurisdictions allow service of process by certified mail. Once the Complaint has been formally served under whichever method is required by state law, that officially commences the divorce action.
Residency Requirements
You must be a resident of a state in order to file for divorce in that state. This means you physically live in the state and for all intents and purposes are considered a bone fide resident. Residency laws vary. In South Dakota, under SDCL 4-30, you must be a resident of the state at the time you file for divorce. This does not mean that your spouse must live in the state in order to file although venue considerations could result in dismissal, especially if children are involved and they live with another parent out of state. In this case, the Uniform Child Custody Jurisdiction Act may control the location of the custody aspect of the divorce. In DC, you must be a resident for six months before you can file for divorce.
Grounds for Divorce
There are various grounds for divorce that you can assert if you are the person filing for it. One ground for divorce is irreconcilable differences which is a no-fault allegation and means the spouses no longer want to be married, without fault on the part of either party. Some states only permit no-fault divorce filings, like Washington, DC. Under DC Law 25-115, you merely need to allege that you do not wish to be married.
Other states permit the filing of fault-based divorces, like South Dakota. Under SDCL 25-4-2, there are several grounds for divorce you can allege. In South Dakota, a divorce may be granted for adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance, conviction of a felony and irreconcilable difference.
Fault-based grounds for divorce, depending on the state you live in, may affect a claim for alimony or spousal support. Generally, fault does not impact the division of assets though in some circumstances, it is something that could be considered depending on the type of fault-based allegations made. For example, if a spouse is spending money on a paramour or gambling away the marital assets, that type of behavior could impact the division of assets and debt to some extent, though not in all circumstances. Each case is unique.
Periods of Separation
You do not need to be separated formally in order to file for divorce although a waiting period of 60 days applies in South Dakota under SDCL 25-4-34. This means you cannot be divorced any sooner than 60 days from when the divorce papers have been filed and served. Other jurisdictions may have longer waiting periods. In DC, the separation period is six months under DC Law 16-905. Irrespective of the time period applicable, usually the parties take longer than the minimum waiting period applicable to divorce since dissolving a marriage takes time in order to divide assets, debts, make living arrangements and to determine other key aspects of no longer being married.
Other Considerations
How to divide assets, debts and furniture, businesses, property, vehicles and retirement accounts is often a challenge for people divorcing, primarily because emotions run high and making financial decisions that you will not regret can be difficult. If there are children involved, where they live primarily, how often they visit the other parent, whether grandparent’s visitation is recognized, and how to calculate child support can be challenging. Every state is different as far as each of these considerations. It is important to consider all aspects before you file for divorce or if you are responding to divorce papers that have been served on you.
Summary and FAQ’s
Key aspects you will want to determine during your divorce are 1) division of assets and businesses; and the accurate valuation of the marital and pre-marital assets 2) the source of the asset or funds used to acquire the asset 3) the need for alimony and the ability to pay alimony 4) the custody of children, appropriate parenting time and children’s extracurricular activities or special educational or medical needs 5) health and life insurance considerations and 6) division of marital and pre-marital debts and loans. Call attorney Stephanie Amiotte at 605.595.7658 or email her at stephanie@amiottelaw.org for a free consultation.