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A marriage annulment in this state is a decree ending an illegal marital relationship, while a divorce is the termination of a legal marriage. The marriage annulment process is similar to the divorce or separation processes in that you petition the court citing grounds, and then during a hearing prove your claim with evidence. The burden of proof is greater for an annulment than a divorce, however. One must cite grounds with an annulment as one does with a divorce. Acceptable grounds for annulment include:
- Fraud – You can obtain an annulment in SD if your spouse got your consent for marriage by fraud or by misrepresenting him or herself. If you continue to live with your spouse after the marriage, you may lose your right to use this ground. In any case, you must file within 4 years (before you reach age 22).
- Mental Illness – A mentally incapacitated person cannot enter into a marital contract. An annulment will not be granted if the party with the mental disability recovers and then continues to live with the other spouse.
- Underage Marriage – Any person that has not attained the age of majority (age 18) cannot get married, unless they are between 16 and 18 and have parental or guardian’s consent. Continuing to live with each other after both have reached age 18 usually terminates the ground for underage marriage.
- Incest – Entering a marriage with someone who is too closely related to you is prohibited
- Impotency – If your spouse is impotent, you can get your a SD marital annulment. You have 4 years from the date of marriage to file.
- Bigamy – A marriage can be annulled if either party was married to another at the time of your marriage. In order to file using bigamy, the bigamous spouse must be alive. If the offending spouse believed their spouse was dead at the time of your marriage, or if the spouse was missing for at least 5 years, an annulment may be denied by the court.
You must file a Complaint for Annulment in the circuit court for the county where either your or your spouse lives. The complaint must list the particulars of your marriage (date and place of marriage, where each party lives, the basis (grounds) you offer as evidence, and the details of any children of the marriage. If you want the court to settle differences about child support, child custody, alimony, visitation or division of property, you must request that in your petition.
File your complaint with the circuit court clerk’s office and have your spouse served with a copy of the complaint. A court hearing will be scheduled, where you must present evidence and any witnesses that backs up your claim and grounds for annulment. If the court agrees with you, it will issue the order for annulment.
[South Dakota Laws – Volume 9A – Title 25 – Chapters 25-1-1, 25-3-1, et seq. 25-1-8]
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