Child Support Enforcement Law Summaries
South Dakota, Child Support Enforcement Law Summaries
South Dakota's child support law is part of the wage garnishment statutes and is located in the South Dakota Statutes at Title 25.
DEFINITIONS
“Income” means any form of payment to a person, regardless of source, including wages, salary, commission, bonuses, compensation as an independent contractor, workers' compensation, unemployment compensation, disability, annuity and retirement benefits, gift or inheritance, all gain derived from capital or labor, profit gained through the sale or conversion of capital assets, and any other payments, excluding any amount required by law or as a condition of employment to be withheld, including federal, state, and local taxes, social security, and other retirement contributions, amounts exempted by federal law, and public assistance payments (Secs. 25-7A-1 and 25-9B-101, as amended by H. 1027, L. 1998).
“Earnings” for garnishment means compensation paid or payable for personal services, whether as wages, salary, commission, bonus, or otherwise, including periodic payments under a pension or retirement program (Sec. 21-18-2.1).
COVERAGE
Interstate support requirements.- The Department of Social Services may request another state to enter an order for support and will issue an order based on the request of another state to withhold income from an employee in South Dakota (Sec. 25-7A-47, as amended by H. 1027, L. 1998, and Sec. 25-7A-48). South Dakota recognizes orders for support issued in other states (Ch. 25-9B).
An order to withhold income issued in another state may be sent to the employer of a person owing child support without first filing a petition or comparable pleading or registering the order with a South Dakota tribunal (Sec. 25-9B-501, added by Ch. 155 ( S. 266), L. 1997).
Upon receipt of the order, the employer must immediately provide a copy of the order to the person owing support. The employer must treat an order issued in another state in the same manner as if the order had been issued by a South Dakota tribunal. Except as provided below, the employer must withhold and distribute the funds as directed in the order by complying with the terms of the order (Sec. 25-9B-507, as added by Ch. 155 (S. 266), L. 1997).
The employer must comply with the law of the state of the principal place of employment of the person owing support for withholding of income with respect to (Sec. 25-9B-507, as added by Ch. 155 (S. 266), L. 1997):
the employer's fee for processing an income withholding order;
the maximum amount permitted to be withheld from the person's income;
the time periods within which the employer must implement the withholding order and forward the child support payments;
the priorities for withholding and allocating income withheld for multiple child support obligees; and
any withholding terms or conditions not specified in the order.
If the employer receives multiple orders to withhold support from the earnings of the same person, the employer is deemed to have satisfied the terms of the multiple orders if the law of the state of the person's principal place of employment to establish the priorities for withholding and allocating income withheld for multiple child support obligees is complied with (Sec. 25-9B-503, added by Ch. 155 (S. 266), L. 1997).
An employer who complies with an income withholding order issued in another state as described above is not subject to civil liability to any individual or agency with regard to the employer's withholding child support from the income of a person owing support (Sec. 25-9B-504, added by Ch. 155 (S. 266), L. 1997).
An employer who willfully fails to comply with an income withholding order issued by another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a South Dakota tribunal (Sec. 25-9B-505, added by Ch. 155 (S. 266), L. 1997).
WHAT THE EMPLOYER MUST DO
Payment amounts.- The order for withholding directs an employer to withhold an amount equal to the order for support and an additional 10 percent for arrearage until payment in full of any delinquency (Sec. 25-7A-31).
The amount actually withheld may not exceed 50 percent of wages, salary, commission, bonuses, compensation as an independent contractor, workers' compensation, unemployment compensation, or disability benefits (Sec. 25-7A-32).
The maximum part of aggregate disposable income for any work week subject to garnishment for child support may not exceed 50 percent if the person is supporting a spouse or child other than the person for whom the order is issued, or 60 percent if the person is supporting a spouse or child. If the earnings are subject to garnishment to enforce a support order that is more than 12 weeks prior, the percentages will be 55 percent and 65 percent (Sec. 21-18-52).
Fees.- In addition to the amount designated in the withholding order, the employer may deduct an amount not to exceed $3.00 per month from the employee's income to cover the expenses involved in transmitting the amount withheld (Sec. 25-7A-34, as amended by H. 1184, L. 2004).
Medical support orders.- The court may enter an order for health and dental insurance coverage for a minor child. The cost of the insurance is determined by dividing the out-of-pocket costs by the number of individuals insured and apportioned between the parents on the basis of income (Sec. 25-7-6.16, as amended by S. 245, L. 1997).
If an order for support requires a parent of a dependent child to provide health insurance coverage for that child, any insurer subject to Ch. 58-33 and who is engaged in the business of health insurance as well as any employer or union who provides family health insurance coverage to its employees or members, upon receiving written notice of such order and an application from either the noncustodial parent, custodial parent, or the Department of Social Services, or upon receiving a national medical support notice from any Title IV-D agency, is required to allow enrollment of such dependent child without regard to any applicable enrollment season restrictions and without being subject to underwriting restrictions or exclusionary riders. The insurer or plan administrator shall also complete the applicable sections of the national medical support notice within 40 business days of the date of the notice and forward the notice to any person or entity specified in the notice. No insurer, employer, or union providing family health insurance benefit plans as set out in this section may eliminate or cancel the ordered medical support coverage for the dependent child unless it is provided evidence that (Sec. 25-7A-58, as amended by H. 1012, L. 2002):
the original court or administrative order is no longer in effect;
the dependent child is or will be enrolled in comparable health insurance coverage through another insurer or employer and which coverage will take effect not later than the effective date of the elimination or cancellation of the previous health insurance coverage;
as an employer or union, and not a health insurer subject to this section, who previously provided family health insurance benefit coverage to its employees or members, the employer or union has eliminated family health insurance coverage to all of its employees or members; or
any available continuation coverage is not elected, or the period of such coverage has expired. Optional or supplementary coverages are not required to be included in the medical support health insurance coverage unless specifically required by the support order. Any person or insurer who fails to comply with this section is, in addition to any other penalties permitted by law, subject to the enforcement and penalty provisions of Title 58.
Any employer who intentionally fails to comply with any duties imposed by this section commits a petty offense (Sec. 25-7A-58, as amended by H. 1012, L. 2002).
In any case where there is in effect an order for support requiring an obligor to provide medical support for a dependent child, the employer of the obligor, upon receiving a national medical support notice from any Title IV-D agency is required to complete the applicable sections and forward the notice to the persons or entities specified in the notice within 20 business days of the date of the notice. Upon receiving notice of successful enrollment, the employer shall withhold from the employee's compensation the employee's share of premiums, if any, for health coverage required for the medical support of the dependent child. Any employer withholding compensation from an employee for the purposes set forth in this section is required to pay, upon the premium due date, the employee's share of the premium to the insurer providing the health coverage for the dependent child. The total amount withheld for support and health insurance premiums may not exceed the amount specified in Sec. 25-7A-32, giving priority to the payment of current and past-due support (Sec. 25-7A-59, as amended by H. 1012, L. 2002).
Any employer who intentionally fails to comply with any duties imposed by this section commits a petty offense (Sec. 25-7A-59, as amended by H. 1012, L. 2002).
The department shall notify the obligor of its issuance of a national medical support notice and further advise the obligor of the procedures to contest the enrollment and withholding of premiums. An obligor may contest the enrollment and withholding of premiums by filing a written request for administrative review with the department within 10 days after service of the notice. The grounds for contesting shall be based upon a mistake of fact and limited to the proper identity of the obligor, or a dispute concerning the responsibility of the obligor to provide health insurance coverage for the dependent child pursuant to a support order. The employer shall continue to withhold premiums until it receives notice that the contest is resolved and the obligor is not responsible for the child's health insurance coverage. The employer shall also provide the department written notification of termination of employment within five days of the obligor's termination date (Sec. 25-7A-62, added by Ch. 128 (H. 1012), L. 2002).
Any employer who intentionally fails to comply with any duties imposed by this section commits a petty offense (Sec. 25-7A-62, added by Ch. 128 (H. 1012), L. 2002).
Retaliation.- An employer may not discharge, refuse to employ, discipline, or penalize an employee because of a child support order (Sec. 25-7A-46, as amended by S. 266, L. 1997).
Priority.- Withholding for child support takes priority over any prior or subsequent legal process under state law, including garnishment, attachments, wage assignments, or creditors' claims (Sec. 25-7A-37, as amended by S. 266, L. 1997). When multiple orders are served against one employee, the priority for payment goes to current support (Sec. 25-7A-35).
Public employees.- A creditor is entitled to proceed by garnishment in any court against any person, including a state, municipal, or public corporation (Sec. 21-18-1).
Multiple support orders.- An employer who is served with more than one order for withholding must comply with all orders so long as the income withheld does not exceed the maximum amount giving priority to current support. An employer may combine amounts withheld for several employees into a single payment identifying the amount attributed to each employee (Sec. 25-7A-35).
Cooperation with state agencies.- All employers within South Dakota must promptly respond to a request from any Title IV-D agency for information regarding the employment status, rate of compensation, or benefits provided by the employer to any employee or contractor (Sec. 25-7A-56.5, added by Ch. 155 (S. 266), L. 1997).
NOTICE
Notification to employer.- The Department of Social Services will serve the employer a copy of the order by certified mail, first class mail or personal delivery (Sec. 25-7A-39, as amended by H. 1011, L. 2002).
Termination of employment.- If the employee is no longer receiving income, the employer should return a copy of the order to the Department of Social Services within five days after termination of employment and provide the last known address and the name and address of the new employer, if known (Sec. 25-7A-36).
DEADLINES
The first payment must be deducted from the payment of income that is payable to the employee following service of the order, and must be transmitted to the Department of Social Services in accordance with the order within seven business days after the date the employee is paid (Sec. 25-7A-34, as amended by H. 1184, L. 2004).
WHO TO CONTACT
The state child support enforcement office may be contacted at: Office of Child Support Enforcement, Department of Social Services, 700 Governor's Drive, Pierre, SD 57501-2291. Telephone: (605) 773-3641. Fax: (605) 773-4855.
PENALTIES
See also WHAT THE EMPLOYER MUST DO, above.
An employer commits a petty offense if it fails to withhold or pay over income pursuant to a valid order for withholding; discharges, refuses to employ, disciplines, or penalizes an employee because of an order; or otherwise fails to comply with its duties under a child support order (Sec. 25-7A-46, as amended by S. 266, L. 1997).
The Department of Social Services may file an action in circuit court for judgment for the total amount an employer failed to pay, including reinstatement of employment or restitution or both if the employee has been discharged, disciplined, or otherwise discriminated against (Sec. 25-7A-45).
Cooperation with state agencies.- An employer who intentionally violates the requirement to respond to requests from Title IV-D agencies commits a petty offense (Sec. 25-7A-56.5, added by Ch. 155 (S. 266), L. 1997).
<p>Cooperation with state agencies.— An employer who intentionally violates the requirement to respond to requests from Title IV-D agencies commits a petty offense</p>
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