Child Support in South Dakota

South Dakota, like all other states, has child support guidelines that are meant to provide consistency when judges or parents are coming up with an appropriate support amount. Several elements go into calculating child support, and the process can seem overwhelming at first. South Dakota provides online tools that can help you complete the necessary forms. But before you start, it will help to have a basic understanding of how the guidelines work and what goes into the calculations.

Who Pays Child Support in South Dakota?

Both parents are legally obligated to support their children. Under the traditional child custody arrangement when parents are divorced, legally separated, or were never married, the children primarily live with one parent (the custodial parent). With that setup, noncustodial parent pays child support to the custodial parent. But that doesn't mean custodial parents aren't paying their fair share. The guidelines assume they cover their support obligation by covering the daily expenses of caring for kids, like food, clothing, and housing costs.

Here's how it works: South Dakota's guidelines include a schedule that shows the basic amount of the overall child support obligation for both parents, based on their combined monthly income and the number of children they have. Each parent's share of that overall obligation is based on their proportionate share of their combined incomes (measured as a percentage). For example, if the noncustodial parent's income is 60% of a couple's combined incomes, that parent would be responsible for 60% of the overall child support obligation (before the adjustments described below).

Special calculations will determine which parent pays support when parents have a shared parenting schedule (meaning that each parent has the children for at least 180 nights out of the year) or split custody (meaning that each parent has custody of at least one of their children).

(S.D. Codified Laws §§ 25-7-6.1, 25-7-6.2, 25-7-6.27 (2024).)

What Counts as Income When Calculating Child Support?

Before you can calculate child support, you'll need to gather information about each parent's net income—which is gross income minus certain deductions. It's important to know what's included in gross income and which deductions are allowed under South Dakota's child support guidelines.

Gross income includes:

• salaries and wages
• benefits received in place of compensation (such as military pay allowances)
• self-employment income
• investment income, including interest, dividends, and rent
• disability, veterans, and workers' compensation benefits
• pension and other retirement payments, including Social Security, and
• unemployment benefits or reemployment assistance.

Overtime pay, commissions, and bonuses don't have to be included in gross income unless the parent receives that compensation regularly or repeatedly. Also, the guidelines presume that income from a parent's second job shouldn't be included, as long as annual earnings from that parent's main job are at least equivalent to the state's current minimum wage for 35 hours a week.

To calculate net income, subtract the following from gross income:

• income taxes (based on the tax rate for a single taxpayer and a monthly payroll period)
• Social Security and Medicare taxes
• contributions to a qualified retirement plan (but only up to 10% of gross income)
• actual unreimbursed expenses for the employer's benefit, and
• payments under other support orders.

When parents don't have enough income to meet their children's needs, North Dakota's guidelines require judges to consider the parents' assets (including savings and life insurance), as well as their ability to borrow money.

(S.D. Codified Laws §§ 25-7-6.3, 25-7-6.5, 25-7-6.7, 25-7-6.22 (2024).)

When South Dakota Judges May Impute Income to Parents

Some parents try to avoid their child support obligation by purposely lowering or hiding their incomes. But courts have ways of dealing with this behavior.

For the purposes of calculating child support, South Dakota law presumes that most parents are able to work at least 35 hours a week at the state's minimum wage. Parents may overcome this presumption with evidence proving that they are incapable of that level of work.

Judges may impute (assign) income to any parent who:

• is voluntarily unemployed or underemployed
• hasn't provided adequate proof of actual income or employment status, or
• is currently getting education or retraining that, in a reasonable amount of time, will lead to higher income to pay child support.

However, a judge may not impute income when a parent:

• can't earn income because of a physical or mental disability
• has diligently but unsuccessfully tried to find suitable work or return to previous self-employment, or
• is incarcerated for more than 180 days.

If imputed income would be unfair under other circumstances, the judge may lower the amount—but only to the point where it would no longer be unfair.

In other cases when judges have decided to impute income to a parent, they must base the amount on the relevant circumstances, including:

• the parent's residence
• the parent's qualifications, recent history of work, earnings, and history of looking for work
• existing job opportunities and earning levels in the area, as well as whether there are employers willing to hire the parent
• any obstacles to employment, including the parent's age, literacy, health, and criminal record.

(S.D. Codified Laws § 25-7-6.26 (2024).)

Adjustments to Child Support in South Dakota

Child support orders in South Dakota must include medical support. The guideline calculations adjust the basic support obligation to account for the reasonable cost of providing health insurance coverage for the child. The total cost will be apportioned between the parents based on their income level, and the parent who actually pays the premiums may receive a credit against the child support obligation.

The parent with primary custody will be responsible for paying up to $250 a year for the child's unreimbursed or uninsured health care costs. Additional costs beyond that will be apportioned between the parents.

Unlike some other states, South Dakota's child support calculations don't build in adjustments for certain other child-related expenses. But the state allows judges to order the parents to share:

• the reasonable costs of child care required because of either parent's employment, job search, or work-related education, and
• substantial costs for the child's travel between parents who live far apart.

Also, the schedule for the basic child support obligation includes a "self-support reserve" to ensure that noncustodial parents have enough money left over after paying child support to cover their own basic needs.

(S.D. Codified Laws §§ 25-7-6.2, 25-7-6.15, 25-7-6.18 (2024).)

When Child Support May Differ From the Guideline Amount

If you believe you should be paying or receiving an amount of child support that's higher or lower than what's calculated under the guidelines, you may make that claim before the court. After considering the evidence, the judge may decide to allow a deviation from the guideline schedule, based on any of the following:

• either parent's financial condition that would make the guideline amount of support unfair
• any education or health care expenses that are necessary because of the child's special needs
• the impact of the parents' agreements for provide extra forms of support for the child's benefit (such to pay for private school tuition)
• a parent's voluntary, unreasonable actions that lead to unemployment or unemployment (see the discussion above on imputing income)
• in certain situations, the income of a parent's new spouse, someone else's contribution to the parent's income or expenses, or a parent's obligation to support children from a new relationship (more on those issues below).

(S.D. Codified Laws § 25-7-6.10 (2024).)

Can Parents Agree on a Child Support Amount?

Parents may agree on child support, and most parent do just that, at least eventually. But they'll have to submit their written agreement to the court, and a judge will review it to see how it compares to South Dakota's child support guidelines.

You usually won't run into problems if you've agreed to an amount of support that's higher than the guideline calculation. But if you've agreed on a below-guideline amount, the judge will have to decide whether you meet any of the acceptable reasons for deviations (as discussed above).

How to Apply for Child Support in South Dakota

When parents are getting divorced or legally separated, child support is handled as part of that legal process. You can request child support when you file your divorce papers.

If you aren't married to your child's other parent, you may request child support through the South Dakota Department of Social Services – Division of Child Support (DCS). The agency can also help you establish the child's paternity, if necessary.

Collecting and Enforcing Child Support in South Dakota

Under South Dakota law, all child support orders must incude an order for income withholding, unless there's a good reason not to require withholding (such as when the noncustodial parent is self-employed), or a judge has approved the parents' agreement for another arrangement.

With income withholding, the employer deducts the amount of support payments from the parent's paycheck and send the money to the DCS, which then forwards the money to the custodial parent (through direct deposit or debit card).

If you're having trouble collecting child support, you may get help from the DCS. Depending on the amount of the overdue payments, the agency has a number of enforcement tools available, including:

• reporting the debt to credit agencies (which will affect the delinquent parent's credit rating)
• tax refund offsets
• withholding the overdue support from unemployment or workers' compensation benefits
• restricting or revoking the parent's driver's license, professional license, or recreational licenses
• seizing the overdue support from the parent's bank accounts, and
• placing liens on property, preventing the delinquent parent from selling or borrowing money on the property until the debt is paid.

Either the DCS or the parent who's owed support may also file a motion with the court to request that the delinquent parent be found in contempt, which could lead to fines and even jail time.

Some custodial parents who haven't been receiving child support payments may be tempted to stop the delinquent parent from seeing their kids. That's not allowed. You must continue to follow your custody order while you take steps to enforce the support order. And if you're the one paying support, you should know that you may not stop those payments just because the other parent is withholding visitation.

When Does Child Support End in South Dakota?

Parents' legal duty to pay child support ends when a child turns 18 (or is legally emancipated before then). But if a child is still a full-time student in high school, the support duty continues until age 19.(S.D. Codified Laws § 25-5-18.1 (2024).)

Parents may agree to extend child support beyond the legal cut-off date, such as when they want to help a child through college. It's best to submit the written, signed agreement to the court, so that it can be made part of an official order. That will make it easier to enforce the agreement if one parent reneges on the commitment.

How to Get Your Child Support Order Changed

If you want to request a change in the amount of child support you're currently paying or receiving, you may file a modification petition through the DCS or directly with the court.

South Dakota has different requirements for modification requests, depending on when the existing child support order was issued:

• If your existing support order was issued or last modified after June 2022, you'll have to prove that there's been a substantial change in circumstances in the interim, unless it's been at least three years since the order was issued.
• If your existing order was issued or last modified before July 1, 2022, the judge may decide to modify child support even without any proof of changed circumstances.

(S.D. Codified Laws §§ 25-7-6.13, 25-7A-22 (2024).)

Be aware that just because you've requested a modification of a support order doesn't mean you'll automatically get one. The judge will decide whether a modification would be appropriate under the guidelines (or an allowable deviation from the guidelines) after reviewing both parents' current finances and any other relevant information.

Does Remarriage Affect Child Support in South Dakota?

In South Dakota, some circumstances related to a parent's remarriage might justify a modification of the existing child support order. That's because the state allows judges to consider either or both of the following when deciding whether to allow a deviation from the guidelines:

• a new spouse's income—but only if applying the guideline support amount would cause a financial hardship for either parent, and
• a parent's obligation to provide for children from a new relationship (including stepchildren and natural or adopted kids), as long as that's not the only reason for a modification.

Unlike many other states, South Dakota makes stepparents legally responsible for supporting their stepchildren. (S.D. Codified Laws, §§ 25-7-6.10, 25-7- 8 (2024).)

More Resources and Help With Child Support

On South Dakota's Child Support Obligations webpage, you can find links to the state's official child support calculator, as well as worksheets (including the separate worksheet for calculating support in cases on shared parenting and directions for calculating support when the parents have split custody).

Be aware that the online calculator will only work when one parent will have primary custody, and it will give only an estimate of your child support obligation. As discussed above, a judge may order a different amount, depending on the circumstances in your case.

Despite these resources and the DCS services, there are some situations when you may need the assistance of a family law attorney—particularly if you're arguing for (or opposing) a deviation from the guidelines, or you and your ex will share or split custody of your children.