Who Must Pay Child Support in South Dakota?
Divorce or separation does not automatically result in a child support obligation. Both parents have an obligation to support minor-aged children in South Dakota. When parents split, the non-custodial parent will likely be required to pay child support to the custodial parent. There are several ways to obtain a child support order.
Sometimes, parents can agree on a child support amount and submit their agreement to a court for approval. In cases where parents can’t agree, a judge will decide how much child support the non-custodial parent must pay after a child support hearing or trial.
How is Child Support Determined in South Dakota?
The South Dakota Legislature established Child Support Guidelines that courts must use to determine when deciding child support issues.
The state uses an Income Shares Model as part of the guidelines to create an equitable child support order when parents are separated, divorced, or unmarried.
Both parents’ monthly net income must be used in determining the child support owed and divided proportionately between the parents based on their respective net incomes. The noncustodial parent’s proportionate share establishes the child support obligation amount.
The court may also include child care costs and health care coverage costs (i.e., medical, optometric, dental or orthodontic, or counseling costs) between the parents. These guidelines are presumed appropriate unless either parent presents evidence warranting a deviation.
In situations where one parent has primary physical custody, the basic Child Support Obligation Worksheet calculates the basic child support a person may be ordered to pay under South Dakota Guidelines.
A different calculation is used when multiple children are involved, and there is a split custody arrangement where one parent will be the primary physical custodian of one or more children. The other parent will be the primary custodial parent of the other child(ren).
Suppose a custody order contains a detailed shared parenting plan that provides children will reside no less than 180 nights per calendar year in each parent’s home.
Also, the parents will share the duties and responsibilities of parenting the child and the children’s expenses in proportion to their incomes. In that case, the court may grant a cross credit based on the number of nights the children reside with each parent.
If parents have a shared parenting time plan, use the Shared Parenting Child Support Obligation Worksheet to calculate the child support obligation.
Suppose the custodial parent does not have an order for support. In that case, DCS may serve the noncustodial parent a Notice of Support Debt advising the person of their duty to support the children. If the person does not contest the amount of support, orders can be issued within 60 days after the noncustodial parent is served.
Guideline laws give the basic support obligation for child support for a combined monthly net income up to $30,000. For a joint net income above that amount, the child support obligation is established at a proper level, considering the child’s needs and standard of living.
The time to establish an order can vary depending on whether the noncustodial parent needs to be located, if there are difficulties with serving the noncustodial parent with the Notice of Support Debt, or if a hearing is requested.
Factors that May Impact Child Support in South Dakota
The court may also assign child care and health care coverage (i.e., medical, optometric, dental or orthodontic, or counseling costs) between the parents. This may impact the final amount of child support ordered for the noncustodial parent.
After an order is established, if substantial changes in either parent’s standard of living take place, it’s possible to seek a modification of the child support order as described below.
Is Health Insurance Considered a Part of Child Support?
Under South Dakota law, a court must enter an order addressing how the child’s health care needs will be met through medical support provided by one or both parents.
The medical support order will include a provision for medical insurance if the insurance is accessible for a child and available to a parent at a reasonable cost.
It is considered accessible if a medical insurance plan provides coverage for the child residing within the geographic area covered by the insurance policy.
Medical insurance is considered reasonable if the cost attributable to the child(ren) is equal to or less than 8% of the parent’s net income after proportionate medical support credit is applied in the support order.
The Division of Child Support will only enforce a health insurance provision if it is available through the noncustodial parent’s employer. The custodial parent may prefer to obtain insurance if the noncustodial parent is self-employed or doesn’t have insurance available through employment. For support purposes, Medicaid is not considered satisfactory health insurance.
For medical expenses not covered by insurance, a parent can get a Notice of Shared Medical Expenses Form from the clerk of court, referee, or Division of Child Support to request reimbursement of the other parent’s proportionate share of medical or health care costs for the child not covered by insurance.
If the responsible parent does not reimburse the other parent, a small claims action may be initiated to collect unreimbursed medical or health care costs.
When Does Child Support End in South Dakota?
Under South Dakota law, unless a court orders otherwise or the child is legally emancipated, the parents must support their child until the child reaches 18. If the child is a full-time student in a secondary school, support continues until the child graduates or turns 19, whichever comes first.
Support may continue past 19 if a child is physically or mentally disabled. This is determined on a case-by-case basis.
Support may also end early if the child emancipates, gets married, joins the military, or passes away.
Read More: Divorce Laws in South Dakota
Establishing Paternity in South Dakota
When parents are married, and a baby is born, it is presumed that the husband is the child’s father. However, when the mother is not married, legal paternity must be established so that a child support order can be issued.
There are two ways to establish paternity in South Dakota. Voluntary acknowledgment requires signing a paternity affidavit under oath. This paternity affidavit is available at the hospital or medical clinic where the child is born or through the South Dakota Department of Social Services, Department of Health, or the local Register of Deeds Office.
If there are doubts or concerns that a man is a child’s father, DNA genetic testing may be necessary to establish parentage.
Enforcing South Dakota Child Support Orders
When parents don’t comply with child support orders in South Dakota, DCS has several options to pursue enforcement. These methods include:
- Wage Withholding. DCS may issue a wage withholding order to the noncustodial parent’s employer that can include an extra amount for past due support. Employers must report basic information about all newly hired employees to the South Dakota Department of Labor within 20 days from the day the employee starts work. Employers receive a National Medical Support Notice when a noncustodial parent is not providing health insurance coverage and has been ordered to do so.
- Auto Withdrawal of Income. DCS may enter into alternative payment agreements with the noncustodial parent, including auto withdrawals from a noncustodial parent’s bank account.
- Credit Bureau Reporting. If a noncustodial parent owes at least $1,000 in past due child support, License Restrictions. DCS can restrict or revoke driver’s, professional, hunting and fishing licenses when a parent owes at least $1,000 in child support arrearages and has not made child support payments for at least three months.
- Passport Denial. Applications may be denied if noncustodial parents owe at least $2,500 in past due child support obligations.
- Tax Refund Intercept. DCS can collect past due child support from a noncustodial parent’s federal income tax refunds. South Dakota does not have a state income tax, so no state intercept is possible.
- Other Income Intercepts. DCS may withhold or intercept periodic or lump sum payments the noncustodial parent receives from state or local agencies, including unemployment insurance, workers’ compensation, and lottery winnings. DCS may also withhold assets held in financial institutions or retirement funds.
- DCS may refer cases to a prosecutor for show cause hearings. The court may find a noncustodial parent in contempt of court if they can pay but are not willfully paying child support. A parent found in contempt for non-payment may face fines or be sentenced to jail in the most extreme circumstances.
Modifying South Dakota Child Support Orders
A child support order can be modified if it has been three years since the last order was entered or if a parent can show a substantial change in circumstance.
A substantial change in circumstance could be a significant upward or downward change in income, an ongoing or significant illness, daycare expenses no longer being incurred, a child who has graduated from high school, and other similar actions.
A modification request can be requested without showing any change in circumstance if the petition is filed after three years of the date of the order.
The Circuit Court is the only entity with the authority to modify a child support obligation in South Dakota. This is usually done in response to a petition filed by one of the parents.
To start a modification, complete a Petition for Modification Form. These forms are also available from local offices throughout the state or by calling the Division of Child Support at 605.773.3641.
The completed, notarized petition, along with a financial statement, verification of income, Child Support Order Filing Data form UJS/DSS 089, copy of the most recent South Dakota court order or decree establishing child support, and other necessary attachments must be filed with the:
South Dakota Department of Social Services
Division of Child Support, Modification Section
700 Governors Drive
Pierre, SD 57501
After a review, the forms are forwarded to the Clerk of Courts in the county where the support order was entered.
A court-appointed referee will send a notice of the modification hearing to both parties by mail and request the respondent to submit financial and other information to be considered in establishing the child support obligation. The notice will advise the parties of the time and place of the hearing.
The petitioner must appear in person or by telephone at the hearing, or the referee may dismiss the modification request. That usually occurs within 30 days from the date the petition is filed.
Parents do not need to obtain legal counsel for a modification hearing. However, they can at their own expense. Persons not licensed as attorneys by the South Dakota Bar Association may not represent the parties at a modification hearing.
After the modification hearing, the referee will prepare and file a report and a recommended order for support with the Circuit Court. Both parties are sent a copy of the referee’s report and the recommended order, usually within 60 days from the hearing date.
If neither party files objections to the referee’s report and recommended order within ten days of the referee’s report, the Circuit Court will enter the order. A party who disagrees with the court order may appeal the decision to the South Dakota Supreme Court within 30 days.
Child Support and Taxes
Child support payments are not deductible by the payer or taxable to the recipient. Don’t include child support payments received when you calculate your gross income.
However, you may be able to claim the child as a dependent. Generally, the custodial parent is treated as one who provides more than half of the child’s support. In some cases, the noncustodial parent may be treated as the parent who provided more than half of the child’s support.
Many agreements include a provision that each parent declares half the children as dependents when there is an even number of children. Parents can alternate years claiming the child for an odd number of children. In this situation, parents may need to submit Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a similar statement.
How Do I Ask for Child Support?
A DCS child support application is available online.
DCS currently requires hard copy applications and attachments to be submitted. If you wish to have a hard copy application mailed, please email DCS at DCS@state.sd.us or call one of the DCS offices.
After you apply, it is reviewed for completeness and entered into the system. Once the case is established, you will receive documents in the mail, including your child support case number, case worker’s name, and contact information.
Applicants should allow at least four weeks for a case to be established and the initial notices to be received. If you have not received any notices after four weeks, please contact the DCS.
If you are not receiving public assistance, you can apply for child support services by contacting any Division of Child Support office or by calling 605.773.3641. You will have to fill out an application and pay a $5 fee.
Which Agency Handles Child Support in South Dakota?
South Dakota Department of Social Services, Division of Children and Family Services handles child support issues in South Dakota. The contact information is below:
700 Governors Drive
Pierre, SD 57501
If you have any questions about a child’s birth record, contact the Department of Health, Office of Vital Records at 605-773-4961.