Remarriage and Child Support South Dakota

Learn whether a new relationship can affect child support in South Dakota.

By , Retired Judge

You live in South Dakota, you're divorced, and are subject to a child support order. There are various situations that may arise that can affect this order. Is remarriage one of them? Let's take a look.

Child Support in South Dakota

South Dakota's domestic relations law controls the issue of child support. Under the law, both parents of a child are liable for the child's necessary maintenance, education, and support, based on their financial situation.

The law provides certain guidelines and a support schedule for determining the support amount. Both parents' combined monthly net income is used to calculate total child support. The final amount depends on the number of children involved. The total figure is then apportioned between the parents, based on the proportion of their individual income to the combined income.

There are several items that encompass "income," including:

  • employee compensation for personal services, such as salary, wages, and commissions
  • self-employment income, including gain, profit, or loss from a business, farm, or profession
  • periodic payments from pensions or retirement programs, including Social Security or veterans benefits disability payments, or insurance contracts
  • interest, dividends, rentals, and royalties, and
  • unemployment insurance benefits and workers' compensation benefits.

The Court Is Permitted to Vary From the Guidelines

The child support law gives the court the discretion to deviate from the support guidelines when determining support, if one of the parties requests it. The court may consider a number of factors in deciding whether to do so, including:

  • the financial condition of either parent that would make application of the guideline support schedule unfair
  • any necessary education or health care special needs of the child
  • the effect of agreements between the parents regarding extra forms of support for the direct benefit of the child, and
  • the voluntary and unreasonable act of a parent which causes the parent to be unemployed or underemployed, unless the reduction of income is due to incarceration.

If the court does vary from the guidelines, it must specifically explain why it did.

Courts Can Modify Child Support Orders

Under certain circumstances, parents can request a change to an existing child support order. A court can modify a child support order when there is a substantial change in circumstances. Either or both of the parties must apply to the court for such a change. The court will review the parties' financial documentation, as well as any other relevant facts. It will then apply the applicable law and will determine whether, and how much, a support order should change.

The question is, does remarriage qualify as a substantial change of circumstances warranting a support modification?

Remarriage Does Not Automatically Impact a Child Support Order

In and of itself, remarriage doesn't trigger a child support reevaluation. But that's not to say that it can't play a role in a modification request. In fact, there are a number of possibilities relating to remarriage that can have a significant impact on child support.

A New Child May Affect an Existing Child Support Order

If a new child enters your life as a result of your remarriage, a court can consider that fact in reviewing a child support modification application. However, this only applies to children for whom you are legally responsible. Certainly, you are responsible for a child if you're the natural or adoptive parent. But in South Dakota, you're also legally responsible if you are the child's stepparent. (Note that this responsibility doesn't relieve the children's natural or adoptive parents from their support obligation.) You should be aware that the law specifically states that, even though the court can consider this "new child" factor, it cannot be the sole reason for modifying an existing support order. In other words, there must be other changed circumstances present as well.

A New Spouse's Income May Also Be Relevant

Earlier in this article, you learned about some of the factors a court can consider in deciding whether to deviate from the support guidelines. An additional factor the court can look at under that law is a new spouse's income. (Although this would only come into play if the guidelines support figure results in a financial hardship for either of the child's parents.)

Case law in South Dakota also addresses this issue. In one case, the court said that a new wife's income was relevant in a support modification application because it freed up some of the husband's individual income from being spent on household expenses (such as utilities and groceries). Since the new spouse was contributing to these expenses, more of the husband's income was available for child support. A court being able to take a new spouse's income into account is yet another example of how remarriage can possibly affect child support.

This article is only meant to give you a general idea of the issues involved with the topic of remarriage and child support in South Dakota. If any of these issues apply to you, be sure to consult a qualified family law attorney with any questions you may have.

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