In South Dakota, both parents have a duty to support their child. Typically, however, only the non-custodial parent makes child support payments. The non-custodial parent is the parent who spends less than half time with the child (or children). The custodial parent, the parent that spends the most time with the child, remains responsible for child support too, but the law assumes that this parent spends the required amount directly on the child. This duty to support continues until the child is either 18, or if still in high school, then until the child is 19.
The amount of support each parent pays depends on income and time spent with the child. The state sets a base support amount according to the child support guidelines, which are simply a fee schedule, but the final amount of support a court will order could be quite different. Other costs including the child’s medical care must be included. Likewise, a court can adjust the amount of support either up or down to better meet the child’s needs.
The South Dakota Department of Social Services provides a child support calculator and a worksheet to help you estimate your fair share of child support. Depending on your parenting plan (in other words, the custody arrangement), you may need to use the split custody worksheet or shared parenting worksheet (also called joint custody) instead.
All of these tools take the combined monthly net incomes of both parents to determine a baseline of support, which is split proportionally between the parents based on their respective incomes. Net income is gross income minus deductions (which are calculated automatically when you use the child support calculator, above, but if you would like to see the list of deductions, click here).
For child support purposes, gross income includes salary, wages, commissions and bonuses, although overtime and some commissions and bonuses may be excluded if they are not regular sources of income. Additionally, income is money that comes from military pay allowances, any royalties, dividends, interest, capital gains, or rents. If you are self-employed, then your income is any gain, profit, or loss from a business or farm.
Even if you are unemployed, chances are you still have income in the form of unemployment insurance, social security, or workers’ compensation benefits. Also, a court will presume that a parent can earn at least minimum wage – even if this parent is incarcerated. In other words, a parent can’t avoid child support payments by failing to work. There are exceptions, however, for parents who can’t work because of mental or physical disability.
Where income alone is not enough to meet the child’s needs, a court can consider a parent’s savings, life insurance or other assets to make up the difference.
Once you have completed the appropriate child support worksheet, the outcome will be an amount of support that the state presumes to be appropriate for your child. Sometimes, however, the total amount or the way it is divided is unfair to a parent or the child. For example, if the total amount of child support exceeds 50% of the paying parent’s monthly net income, then a court will presume this amount would create financial hardship.
Before a child support order is in place, either parent can ask to adjust the amount of support. Where a parent presents evidence that the amount would be unjust, the court could either increase or decrease the amount of support based on the following:
Once a child support order is in place, you may still be able to change it. For orders entered on or after July 1, 2009, you can ask to modify (change) the amount of child support if it has been three years since the petition for support was filed or if you can show that you have experienced a substantial change in circumstances. A common change in circumstance is the loss of a job, but it could also be life changes like a new baby or a change in the amount of time your child spends with you.
If the substantial change is so great that it constitutes a change greater than 25% of the current rate of support, the court may phase the adjustment in over time, rather than order a dramatic reduction or increase.
You can also read the law at the South Dakota Codified Laws Chapter 25-7.