CHAPTER 134
(SB 60)
Child support, methods to determine revised.
ENTITLED, An Act to
revise certain provisions relating to child support.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section
1.
That chapter
25-7
be amended by adding thereto a NEW SECTION to read as
follows:
If the child receives social security or veteran's dependent benefits as a result of the obligor's
disability, or social security retirement benefits from the obligor, the obligor is entitled to a credit
to the amount of the monthly support obligation.
Section
2.
That
§
25-7-6.7
be amended to read as follows:
25-7-6.7.
Deductions from monthly gross income shall be allowed as follows:
(1)
Income taxes
withheld figured on the basis of two dependent exemptions for a single
taxpayer paid monthly rather than actual amount withheld
payable based on the
applicable tax rate for a single taxpayer with one withholding allowance and a monthly
payroll period rather than the actual tax rate
;
(2)
Estimated income taxes payable, prorated monthly
Social security and medicare taxes
based on the applicable tax rate for an employee or a self-employed taxpayer
;
(3)
FICA taxes withheld from wages or salary;
(4)
Retirement fund amounts withheld or paid directly to an IRS qualified retirement plan,
in a reasonable amount
Contributions to an IRS qualified retirement plan not exceeding
ten percent of gross income
;
(5)
(4)
Actual business expenses of an employee, incurred for the benefit of his employer, not
reimbursed;
(6)
(5)
Payments made on other support and maintenance orders.
Section
3.
That
§
25-7-6.14
be amended to read as follows:
25-7-6.14.
As used in this section, basic visitation means a parenting plan whereby one parent
has physical custody and the other parent has visitation with the child of the parties. In a basic
visitation situation, unless the parties otherwise agree and the agreement is approved by the court,
the court may, if deemed appropriate under the circumstances, order an abatement of not less than
thirty-eight percent nor more than sixty-six percent of the child support if:
(1)
A child spends ten or more days in a month with the obligor; and
(2)
The days of visitation and the abatement amount are specified in the court order.
The court shall allow the abatement to the obligor in the month in which the visitation is
exercised, unless otherwise ordered. The abatement shall be pro-rated to the days of visitation. It
shall be presumed that the visitation is exercised. If the visitation exercised substantially deviates
from the visitation ordered, either party may file a petition for modification without showing any
other change in circumstances.
As used in this section, shared responsibility means a parenting plan whereby each parent
provides a suitable home for the child of the parties, the court order allows the child to spend at
least one hundred twenty days in a calendar year in each home, and the parents
have agreed in
writing to
share the duties, responsibilities, and expenses of parenting
, including expenses for the
child's education, recreation, and entertainment activities
. In a shared responsibility situation,
unless the parties otherwise agree and the agreement is approved by the court, the court may, if
deemed appropriate under the circumstances, order a shared responsibility cross credit. The cross
credit shall be calculated by multiplying the combined child support obligation using both parents'
monthly net incomes by 1.5 to arrive at a shared custody child support obligation. The shared
custody child support obligation shall be apportioned to each parent according to his or her net
income. A child support obligation is computed for each parent by multiplying that parent's portion
of the shared custody child support obligation by the percentage of time the child spends with the
other parent. The respective child support obligations are offset, with the parent owing more child
support paying the difference between the two amounts. It shall be presumed that the shared
responsibility parenting plan is exercised. If the parenting plan exercised substantially deviates
from the parenting plan ordered, either party may file a petition for modification without showing
any other change in circumstances.
The court shall consider each case individually before granting either the basic visitation or
shared responsibility adjustment to insure that the adjustment does not place an undue hardship
on the custodial parent or have a substantial negative effect on the child's standard of living.
Section
4.
That
§
25-7-6.13
be amended to read as follows:
25-7-6.13.
All orders for support entered and in effect prior to July 1,
2001
2005
, may be
modified in accordance with this chapter without requiring a showing of a change in circumstances
from the entry of the order.
Section
5.
That chapter
25-7
be amended by adding thereto a NEW SECTION to read as
follows:
If a parent is employed full-time at a rate of pay that equals or exceeds the state's minimum
wage, it shall be presumed that a parent's second job income is not to be considered in establishing
a support obligation. This presumption may be rebutted by evidence that the income source was
available to pay expenses related to the child when the family was intact or if the family had
formed, by evidence that exclusion of the income would result in a financial hardship upon the
other parent, or that exclusion of the second job income will have a substantial negative effect
upon the child's standard of living.
Section
6.
That chapter
25-7
be amended by adding thereto a NEW SECTION to read as
follows:
If the parents have two or more children between them and each parent has primary physical
custody of at least one child, the child support obligation shall be determined by computing the
amount of each parent's respective support obligation for the children in the other parent's physical
custody, and the support obligations shall be offset in determining a monthly support obligation.
If one or more of the children are receiving assistance from the department as provided in
§
28-7A-
7, and in lieu of the offset, each parent shall be obligated to pay the respective support obligation
amount to the other parent.
Section
7.
That
§
25-7A-6
be amended to read as follows:
25-7A-6.
If a parent served with a notice of support debt under § 25-7A-5 makes a timely
request for a hearing, the secretary of social services shall file the notice of support debt, proof of
service thereof, and response thereto in the office of the clerk of the circuit court in the county of
residence of that parent. The matter shall be set for hearing before a referee who is a member in
good standing of the State Bar Association and is appointed by the court, pursuant to statute, and
after due notice to all parties by first class mail. The referee shall make a report to the court,
recommending the amount of the debt due to the state, if any, and the monthly support obligation
of the parent and the arrearage debt due to the obligee or another state who has applied for support
enforcement services, or for health insurance coverage or genetic testing costs.
The referee shall file the report with the court and cause copies thereof to be served by mailing
to the parties and the secretary. Any party shall have ten days from the date of service of the report
in which to file objections to the report.
If a party files an objection, the other party shall have an
additional five days from the date of service of the objections to file additional objections.
If no
objection is filed, the circuit court may thereafter, and without further notice, enter its order. If any
objection is filed, the circuit court shall fix a date for hearing on the report, the hearing to be solely
on the record established before the referee. The circuit court may thereafter adopt the referee's
report, or may modify it, or may reject and remand it with instructions or for further hearing. The
secretary shall serve the parent the court's order by certified mail, return receipt requested, at the
parent's last known address, and shall file proof of service.
If the circuit court's order modifies the referee's report and no hearing was held before the court
before entry of its order, any party has ten days from the date of service of the order in which to
file an objection to that modification. If an objection is filed, the circuit court shall fix a date for
hearing on the objection and after the hearing shall enter its order. The secretary shall serve the
order by certified mail, return receipt requested, at the parent's last known address, and shall file
proof of service.
Section
8.
That
§
25-7A-22
be amended to read as follows:
25-7A-22.
If the support order was entered in this state and this state maintains continuing
exclusive jurisdiction over the support order in accordance with chapter 25-9B, or if the support
order was registered in this state and the requirements of § 25-9B-611 or 25-9B-613 are satisfied,
an obligor, an obligee, or the assignee may file a petition, on forms prescribed by the department,
to increase or decrease child support. For any support order entered or modified after July 1, 1997:
(1)
The order may be modified upon showing a substantial change in circumstances if the
petition is filed within three years of the date of the order; or
(2)
The order may be modified without showing any change in circumstances if the petition
is filed after three years of the date of the order.
If a petition is filed, the secretary of social services shall file the petition in the office of the
clerk of the circuit court where the original order for support is filed. Any response shall also be
provided to the petitioning party. The matter shall be set for hearing before a referee who is a
member in good standing of the State Bar Association and is appointed by the court, pursuant to
statute, and after due notice to all parties by first class mail. The referee shall make a report to the
court, recommending the amount of the monthly support obligation of the parent or for health
insurance coverage.
The referee shall file the report with the court and cause copies thereof to be served by mailing
to the parties and the secretary. Any party shall have ten days from the date of service of the report
in which to file objections to the report.
If a party files an objection, the other party shall have an
additional five days from the date of service of the objections to file additional objections.
If no
objection is filed, the circuit court may thereafter, and without further notice, enter its order. If any
objection is filed, the circuit court shall fix a date for hearing on the report, the hearing to be solely
on the record established before the referee. The circuit court may thereafter adopt the referee's
report, or may modify it, or may reject and remand it with instructions or for further hearing. The
secretary shall serve the parent the court's order by certified mail, return receipt requested, at the
parent's last known address, and shall file proof of service.
If the circuit court's order modifies the referee's report and no hearing was held before the
circuit court before entry of its order, any party has ten days from the date of service of the order
in which to file an objection to that modification. If an objection is filed, the circuit court shall fix
a date for hearing on the objection and after the hearing shall enter its order. The secretary shall
serve the order by certified mail, return receipt requested, at the parent's last known address, and
shall file proof of service.
Section
9.
That chapter
25-7A
be amended by adding thereto a NEW SECTION to read as
follows:
In any order establishment case, the obligee is limited to a prior-period support obligation or
arrearage not exceeding three years before either the date of application with any Title IV-D
agency, the date of filing with a court of competent jurisdiction, or the date of a written demand
served personally or by registered or certified mail, return receipt requested, upon the father at his
last known address, whichever occurs earlier.
Section
10.
That
§
25-7-6.10
be amended to read as follows:
25-7-6.10.
Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either
party and made only upon the entry of specific findings based upon any of the following factors:
(1)
The income of a subsequent spouse or contribution of a third party to the income or
expenses of that parent but only if the application of the schedule works a financial
hardship on either parent;
(2)
Any financial condition of either parent which would make application of the schedule
inequitable
. If the total amount of the child support obligation, including any
adjustments for health insurance and child care costs, exceeds fifty percent of the
obligor's monthly net income, it shall be presumed that the amount of the obligation
imposes a financial hardship on the obligor. This presumption may be rebutted based
upon other factors set forth in this section
;
(3)
The federal income tax consequences arising from claiming the child as a dependent;
(4)
Any
necessary education or health care
special needs of the child;
(5)
For agreements entered into prior to July 1, 1986, if it is established by clear and
convincing evidence, that debts or property were exchanged for child support and it
appears equitable to continue such arrangement;
(6)
(4)
The effect of agreements between the parents regarding extra forms of support for the
direct benefit of the child;
(7)
(5)
The obligation of either parent to provide for subsequent natural children or
stepchildren. However, an existing support order may not be modified solely for this
reason; or
(8)
(6)
The voluntary act of either parent which reduces that parent's income.
Section
11.
That chapter
25-7
be amended by adding thereto a NEW SECTION to read as
follows:
If the parents of a child have agreed to a change in the physical custody of the child without
the court's approval, the parent who relinquished physical custody may be ordered to pay child
support to the parent who gained physical custody of the child even though the custody order has
not been modified to reflect the change in custody.
Section
12.
That chapter
25-7
be amended by adding thereto a NEW SECTION to read as
follows:
The department shall create and distribute a standardized form to allow a parent, guardian, or
other custodian to request reimbursement of any medical or health care costs from the responsible
parent. A parent, guardian, or custodian shall also be entitled to use the small claims procedure of
chapter 15-39 as a means to collect unreimbursed medical or health care costs from the responsible
parent.
Section
13.
That
§
25-8-5
be amended to read as follows:
25-8-5.
The mother may recover
from the father a reasonable share of the necessary support
of a child born out of wedlock.
In the absence of a previous demand in writing served personally or by registered or certified
letter addressed to the father at his last known residence, not more than six years' support furnished
before bringing an action may be recovered from the father
support for a period of three years
before the date of application with any Title IV-D agency, the date of filing with a court of
competent jurisdiction, or the date of a written demand served personally or by registered or
certified mail, return receipt requested, upon the father at his last known address, whichever occurs
earlier
.
Section
14.
That chapter
15-39
be amended by adding thereto a NEW SECTION to read as
follows:
Notwithstanding any other provision of law, a parent, guardian, or custodian is entitled to use
the procedures provided in this chapter to collect unreimbursed medical or health care costs
incurred on behalf of a child from the other responsible parent.