In the State of South Dakota, annulment proceedings is short, simple and brief;whereas, the divorce proceedings are complex and protracted.
Annulment Vs Divorce in South Dakota
The proceedings of annulment nullify a marriage or declaring it void. In other words a marriage is annulled as it never happened. Whereas, in divorce proceedings, a marriage that took place legally between the parties, is duly dissolved, duly recognizing the existing marriage.
However, both the proceedings of annulment and divorce require some valid grounds. In the State of South Dakota, chapter 25-3 of the codified laws of the state has specific provisions for the annulment of marriage and Chapter 25-4 of the codified laws of the state has specific provisions for the divorce proceedings in the state.
Whether you are seeking annulment or divorce, you have to file a petition in a court of circuit, where you are living. You must file your case in appropriate forms for the relevant proceedings. It is needless to say that considering the intricacies involved in the legal proceedings and for choosing the appropriate ground and to file the annulment or divorce proceedings in the requisite form in a court of law, you should necessarily engage a counsel for whom the legal fees may vary between $ 5,000 and $ 6,000. If you cannot afford to engage a counsel, there are certain web sites for guiding you for a do-it-yourself filing procedure and even for providing tips for behaving in a court of law in the course of the proceedings. For providing do-it-yourself legal service, these web sites charge around $ 325.But such do-it-yourself filing procedure is possible only in the case of a simple annulment proceedings provided both parties to the marriage are agreed and there is no contest. But if the annulment or divorce proceedings are contested between the parties, they have no other go but to necessarily engage a lawyer.
The grounds for seeking the annulment of a marriage vary from the grounds for seeking divorce or dissolving a marriage. In the state of South Dakota, parties seeking annulment or divorce need not necessarily be the citizens of South Dakota. However, while filing annulment or divorce papers, the parties to the proceedings must be the residents of South Dakota and must continue to be the residents of the state till the proceedings are over.
The grounds for annulment:-
- Bigamy: If the spouse of the either party to the marriage is having a living husband or wife with whom the previous marriage is still in force and not yet dissolved,then the party seeking annulment of the marriage should file his or her papers in a circuit court within the lifetime of the spouse whose previous marriage is still in force.
- Unsoundness of Mind: If a party to the marriage was actually suffering from unsoundness of mind at the time of marriage, the other party to the marriage may proceed against him or her who is having unsoundness of mind within his or her lifetime. In fact, such persons of unsound mind are represented by their guardians.
- Marriage with underage persons: Marriages contracted with minors without having consent of their guardians or parents can be annulled. However, petitions to annul such marriages should be filed within 4 years from the date of attaining majority by the concerned minors.
- Consent obtained by fraud or force can be a ground for annulment: If your consent for marriage was obtained by fraud or force by the other party to the marriage, it is a ground for annulment. However, having had the knowledge of fraud or force committed by the other party, if you continue to cohabit with him or her, it may not be possible to have it as a ground for annulment of your marriage. Perhaps you may have to contest and the court may not consider your case for annulment sympathetically. Hence, after the marriage, when you have the knowledge that there was unmistakable proof of fraud or force committed by your spouse in your marriage, you may have to go for annulment of your marriage within 4 years from the date of knowledge of force or fraud committed by your spouse in the marriage.
- Incapacity of your spouse: After the marriage, if you find that your spouse is suffering from incapacity to consummate your marriage and continues to be so, then you may have to file a petition seeking annulment of your marriage within 4 years after the marriage.
- Prohibited marriages are void: Same sex marriages and marriages had within the close relationship like brother-sister, aunt-nephew, etc are declared void and annulled in the State of South Dakota.
Effects of Annulment of marriage:
1. Once the court pronounces a judgment declaring your marriage as nullified or annulled, the judgment is binding on both the parties to the marriage and those claiming under the parties to the marriage..
2. When the parties to the annulment proceedings who have filed their petitions on the ground of bigamy or unsoundness of mind of a party to the marriage, have children born before delivering judgment in the annulment proceedings, those children are legitimate and they are legally entitled to have a share in the estate of their parents when they are dead.
3. When the marriage is annulled, the court may in the interest of justice, grant maintenance or modify the order of maintenance to the former spouse.
4. During and after the annulment proceedings, the court may pass orders for the safe custody, care and education of the children of the parties to the annulment proceedings.
The Grounds for divorce in the state of South Dakota:-
- No fault ground: When the parties to the marriage have irreconcilable differences and their marriage has broken down irretrievably, the parties to the marriage are entitled to file a petition seeking divorce on no fault ground.The party seeking divorce on no fault ground need not prove that his or her spouse is at fault. However, the court will grant a divorce on the basis of no fault ground, only if both parties consent for divorce. The State of South Dakota has introduced the no fault divorce only in the year 1985.
Apart from the no fault ground, parties to the marriage in the State of South Dakota have the following grounds for seeking divorce:
- Adultery committed by either party to a marriage
- When one of the parties to the marriage has treated the other party to the marriage with extreme cruelty.
- When one of the parties to the marriage has willfully deserted his spouse after the marriage and living separately.
- When one of the parties to the marriage willfully neglected the other party to the marriage and the neglected party suffers in the result of willful neglect.
- When one of the parties to the marriage is habitually intemperate in his language and treatment of the other party to the marriage.
- When one of the parties to the marriage is convicted for felony.
The court proceedings for the annulment of a marriage is short and brief and the court passes the order of annulment provided the court is satisfied that there is concrete evidence and proof for the annulment or the nullification of a marriage as provided in Chapter 25-3 of the codified laws of the state of South Dakota.While some of the grounds for annulment has statutory limitation period for seeking annulment, in the case of divorce proceedings, there is no such statutory limitation period for seeking divorce under the grounds envisaged in the codified laws of the State of Dakota.
However, the divorce proceedings in the state of South Dakota are somewhat cumbersome and as contained in chapter 25-4 of the codified laws of South Dakota.. After the filing of the divorce proceedings on any one of the above grounds, the court may order for a legal separation between the parties to the marriage giving a reasonable time of 30 days so as to give them a chance for reconciliation. When 30 days have elapsed after legal separation and still parties to the marriage are in favor of divorce, the court may pass a decree for divorce. During the divorce proceedings, depending upon the circumstances of the case, the court may pass orders for spousal support, child’s safe custody, visitation and their education, division of properties of the parties to the marriage and for legal expenses of the parties etc.While passing such orders, the court may take into account the pre-nuptial agreement, if any, entered into between the parties to the marriage and mediation process before marriage etc.
Thus the annulment proceedings in the state of South Dakota are somewhat simple; whereas, the divorce proceedings are complex and protracted.
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