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 doesn’t have primary care, custody, and control of a minor child. Although the custodial parent also has a responsibility for child support, the law assumes that this parent spends the required amount directly on the child.
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, depending on the circumstances.
The South Dakota Department of Social Services provides a child support calculator and a worksheet to help you estimate your share of child support. This calculator doesn’t apply to situations in which the parents have “shared” (sometimes called “joint”) custody. Shared custody exists when a child spends no less than 180 nights per calendar year in each parent’s home. To assist you in estimating child support with a shared custody arrangement, you can use the shared parenting worksheet.
There are also situations where the parents of two or more children agree and/or the court orders a “split” custody arrangement, where one parent will have primary custody of one or more children, and the other parent will have primary custody of the other child(ren). In this scenario, technically each parent would owe the other child support. Use the guidelines to figure out how much each parent would owe. If there’s a difference between the two figures, the parent whose child support obligation is higher pays that difference to the other parent. (The Department of Social Services doesn’t provide a split custody worksheet.)
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’d 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 aren’t 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, farm, or profession.
Even if you are unemployed, chances are you still have income in the form of unemployment insurance, social security, or workers’ compensation benefits, as well as periodic payments from pensions or retirement programs.
Where income alone isn't enough to meet the child’s needs, a court can look to a parent’s savings, life insurance, or other assets to make up the difference. The court can also consider a parent's ability to borrow, in determining financial ability.
The court must also enter an order addressing how the child's health care needs will be met. The order has to include a provision for medical insurance if the insurance is accessible for the child and available to a parent at reasonable cost. The court will also make provision for payment of the child’s reasonable health care costs, including medical, optometric, dental or orthodontic, or counseling costs for each minor child. This applies to costs that exceed $250 in any year and aren't covered by insurance. The parent who has primary custody of the child is responsible for the first $250 of those expenses.
The court can also enter an order allocating payment of reasonable child care expenses which are due to either parent’s employment, job search, or the training or education of either parent necessary to obtain a job or increase earning potential.
Occasionally, parents may try to reduce or completely avoid their responsibility for child support by purposely decreasing their income, usually by voluntarily becoming unemployed or underemployed. In South Dakota, there’s a rebuttable presumption that a parent is at least capable of being employed a minimum of one thousand eight hundred twenty hours per year (approximately 35 hours per week) at minimum wage, including while incarcerated. The court can calculate child support on that income figure. The law does provide an exception, in cases of a parent’s physical or mental disability.
Because the presumption is rebuttable, that means either parent can present evidence to the court to counter the presumption. The paying parent may try to convince the court that special circumstances exist that prevent that parent from being employed. Likewise, the parent receiving support could argue that calculating the other parent’s obligation at minimum wage would be unfair. You might see this in a situation where the paying parent was in a high-paying job, and intentionally left without a good reason.
Once you’ve 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’s divided may be 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 likely presume this amount would create financial hardship.
If either parent believes that using the child support guidelines would be unfair, that parent can ask the court to deviate from the guidelines. If that’s the case, the law provides certain factors for a judge to consider when deciding whether it would be appropriate to set the guidelines aside and award support that’s either higher or lower than the guidelines call for. Those factors are:
Judges have to explain why they deviated from the guidelines.
As a matter of course, child support payments are made by withholding income from the paying parent’s paycheck. The employer collects the payment and sends it to the appropriate state agency. Depending on the circumstances, the state may enter into an authorization agreement with the paying parent to directly withdraw the child support payment and any arrearages (past due support) from the paying parent’s bank account. Credit/debit cards and e-checks are other possible payment alternatives.
If you’re responsible for paying child support, you’ll have to notify the state of any change of address or change of employer.
Parents who receive child support can have the support payment direct-deposited into a bank account, or opt for an electronic payment called Way2Go MasterCard.
If you want to change your child support order, you’ll have to file a petition (legal paperwork) with the court, after which the court will determine if a modification is warranted.
A support order entered on or after July 1, 2017 may be modified only if it was entered three years or more from the date the petition is filed, or upon showing that a substantial change in circumstances has occurred since the entry of the order. 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.
Note that a support order can be modified without showing any change in circumstances if the order was entered prior to July 1, 2017.
In cases resulting in an adjustment of more than 25% in the support award, the court may phase in the adjustment over a period of time.
Just because you’ve requested a modification of a support order doesn’t automatically mean you’ll get one. The court will apply the guidelines and see if a change is warranted.
In South Dakota, parents have the legal duty to support their child until the child attains the age of 18, or until the child attains the age of 19 if the child is a full-time student in a secondary school (such as high school).
But just because your child has reached 18 (or 19, if in school), don’t assume that you won’t still be held accountable for any support arrears you may owe.
If a parent is delinquent in paying child support, South Dakota has a number of ways to enforce the support order. Depending on the amount of arrearages, the state can:
The Division of Child Support can also help establish paternity and locate non-custodial parents.
For general information on enforcing child support orders, check out the article Enforcing Child Support Orders: Dealing With a Deadbeat Parent.