Part of Real World Divorce: web edition | Kindle edition
Our questions about South Dakota law were answered by Linda Lea Viken, an attorney with nearly 36 years of experience who graduated from the University of South Dakota law school. Viken was a legislator in the South Dakota House of Representatives for eight years. She has also been listed in several biographical dictionaries including Marquis’ ‘Who’s Who in Government’ and ‘Who’s Who in America.’ Viken handles a 50/50 mix of male and female clients, the majority of cases being ones in which a woman is the plaintiff and a man the defendant. In 35 years, Viken has tried an average of about 12 cases per year, each trial averaging at 1-2 days due to the difficulty of getting a judge to grant more than 3 days in a row for a trial.
Child support in South Dakota, as in most Western states, can be collected until a child turns 18, or 19 if still in high school. A court cannot order a parent to pay for college, though Viken notes that a court will enforce an agreement regarding college expense allocation. Child support calculation can be performed by reference to a statutory schedule at SDCL 25-7-6.2, or with an online tool available at http://apps.sd.gov/ss17pc02cal/calculator1.aspx, but only up to a combined net (after-tax) income of $20,000 per month (approximately $372,000 per year gross), at which point the annual tax-free child support payable is $25,212. Obtaining a larger amount of child support from a defendant with an income above the chart would be at the discretion of the judge and based on the "actual needs and standard of living of the children." As in most other states, the cash value of a child depends on how many previous plaintiffs have sued a given defendant because SDCL 25-7-6.7 provides that "Payments made on other support and maintenance orders" are deducted from gross income in order to compute the net income on which child support is figured.
At what age will a child's preferences be considered in order to determine a parenting time schedule or custody arrangement? "A child can say a preference at any age, but that never determines the outcome," says Viken.
In South Dakota a “walk-away” prenuptial agreement, in which the parties retain their separate property and no alimony is paid, is not valid. Viken explains that "Alimony cannot be waived by statute, though most agreements regarding property settlement have been upheld."
The average hourly wage in South Dakota is $17.32 per hour. A person who goes to college at South Dakota State University will spend approximately $56,620 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $38,000 per year ($30,199 after taxes). The corresponding man earns $50,000 ($38,456 after taxes). South Dakota collects 7.1 percent of residents' income to run state and local government, making it the second most efficient state in the Union (Tax Foundation). South Dakota has no individual income tax.
The average annual cost of childcare in a commercial setting is $5,947 for an infant, $5,665 for a four-year-old, and $3,667 for a school-age child. Thus the total cost of childcare from age 0 through 12 is about $36,590 in commercial settings or $32,737 in a family care setting.
The man who goes to college and works will have a total after-tax spending power of $481,764 (14 years of income from work minus college costs). After adjusting for USDA-estimated costs of child-rearing, he will have a higher personal spending power when he can collect $2,980 per month or more in child support. This is an off-the-charts number in South Dakota. If he obtains custody of two children with two different mothers, however, he will be able to outspend his college/work peers when he gets $1,860 from each mother. This is possible when each other earns $207,600 after tax.
The corresponding childless woman who chooses college and work can spend $366,166. She will come out ahead financially when she can collect $2,445 per month in child support, an off-the-charts number. With two children from two different fathers, however, she can outspend her college/work peers at $1,598 per month in tax-free child support. This can be obtained by suing men earning at $172,200 per year.
Among South Dakotans surveyed by the U.S. Census Bureau in March 2014, 87 percent of those collecting child support were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
"I had a case like this recently," says Viken, "but the female surgeon made a lot more than $325,000 per year! There was a nanny to take care of the kids while the husband, a good ol' boy who didn't really work, went off on hunting trips that cost $100,000 per year. The woman got joint legal and sole physical custody, partly because the husband had a terrible temper."
Viken explains that while in most cases sole legal custody is not granted, the husband’s affair in our hypothetical would "most likely" affect the judge’s decision. The professional hand surgeon would get joint legal and sole physical custody. Would that be extended through the child's 18th birthday? "By becoming a more active father," Viken explains, "the photographer husband could try to reach 50/50 custody. At the start of the divorce however, he would most likely receive a minimum parenting time of every other weekend."
In disputes regarding custody, both parties are required to go to mediation, which happens without lawyers. Viken explains that if the mediation is not successful "A child custody evaluator is appointed and makes a non-binding recommendation to the Court. Evaluators almost always grant parenting time beyond the minimum, usually making it from Thursday to Monday."
How much child support can the doctor collect from this slacker, given that he has no income? "If one party is not working, South Dakota courts always impute minimum wage to that individual and thus they are required to pay child support," explains Viken.
How does the parenting time split affect child support? In a 50/50 parenting arrangement, with the children spending at least 180 days per year in each home, South Dakota has a separate "Shared Parenting Child Support Obligation Worksheet". When one parent has no income and the other is at the top of the guidelines, this results in approximately a 28 percent reduction in child support owed when the child goes to the payor's house 50 percent time. In this case, if the child had originally been with the mother and moved to the father's house, the father, instead of paying a minimal amount of child support would begin to receive as much as $1,500 per month at the top of the guidelines ($18,000 per year or over $300,000 through this child reaching age 18). Can a judge impose shared parenting on litigants or must they agree to it? "I haven't had a judge force shared parenting on parties," Viken says.
How much will this case cost to litigate? "For a custody case culminating in a three-day trial, the fees would reach at least $50,000," says Viken, who bills $290 per hour ("maybe the highest in South Dakota"), "Some could even reach $500,000. The retainer in a custody case is $15,000."
Given that he has no income, how is the father going to pay his share? Viken explains that the court can order a litigant to pay the other side's fees especially if "one person unnecessarily increased the fees."
Can the defendant profit via property division from this short-term marriage? "South Dakota provides for all property to be divided equitably no matter how it is held or titled," Viken explains. "While premarital property, if it has not been commingled, is generally not considered for division, particularly in a short marriage." What's a "short" marriage? "The standard is 'less than 10 years'," says Viken. Do these rules streamline litigation? "Gifted, inherited, or premarital property disputes often go to court," Viken notes. In this scenario she expects that the father's share of property would be limited to 50 percent of whatever was accumulated during the short marriage.
Can the father use alimony to extend his slacker lifestyle? "South Dakota has rehabilitative alimony to help someone get a job, which is all that this defendant could get and he would be unlikely to get it." What are the other types of alimony? "Restitution in cases where one party has put the other through school and permanent, which is rarely given. Our judges are conservative and believe that individuals can support themselves. In fact, South Dakota has the highest number of single parent households with women working." How "permanent" is "permanent"? "A parent can get alimony in order to keep household going if child support is not sufficient, but only until the kids turn 18," says Viken.
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What kind of parenting arrangement would a court most likely impose after a trial? "A custody evaluator would recommend shared parenting," predicts Viken. In other states the fact that these two litigants don't get along would be used as an argument to give the kids to just one parent. Why do South Dakotans think that two mutually angry people can share parenting? "Oftentimes the anger is situational," says Viken. "They're angry that they are being sued for divorce or maybe because someone had an affair. All of those things get in the way of doing what is best for their children. The hope would be that they would start cooperating later."
What about child support and alimony? "There wouldn't be any due to the 50/50 parenting and the equal incomes," says Viken.
What are the financial stakes around sole custody? An award of sole custody to one parent would result, according to the state's online calculator, in child support payments of $13,500 per year from the loser parent to the winner parent. The winner would file as "head of household" with four dependants and have a net earned income of $53,421 plus additional spending power of $13,500 for a total of $66,921. The loser would file singly and, after subtracting child support payments from after-tax income of $49,471, would have $35,971 to spend for running a household large enough to accommodate four children on a part-time basis.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Viken predicts that the mother would win sole physical custody based on having been the primary caregiver: "They don't look at the 'primary caregiver' issue as much after the kids turn school age, but these kids are 2 and 5."
Is South Dakota like other states where the person who has been the primary caregiver in a voluntary division of labor during a marriage can keep that job via an involuntary court-ordered division until the kids turn 18? "In this case the judge would most likely expect the mother to get a job and the doctor husband would have to plan and try find a way to spend more time with the kids, Viken says."
What would the actual parenting time schedule look like? As in the previous case, Viken notes that "The evaluator and the judge would probably grant the dad more than the minimum time, e.g., via extended weekends."
What kind of child support could this victorious plaintiff expect to receive? "Close to the top of the guidelines, but not beyond," predicts Viken, "due to the fact that you have to consider alimony, taxes, and retirement plan contributions."
What would happen to the accumulated home equity and savings? "After a 10-year marriage the premise is a 50/50 split," says Viken.
What about alimony? "She would get rehabilitative alimony after presenting an educational plan to the Court." Why not permanent alimony or at least until the kids turn 18, as in some other states? "She would need something like 17 years of marriage to get that," says Viken, "and it is very dependent on the judge."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"No judge is going to be pleased with the set of facts presented by the plaintiff," Viken says. "There is insufficient reason for the divorce." Viken predicts, nonetheless, that the woman would get physical custody. On what kind of schedule would the child see the father? "It would be argued that because this man is losing the opportunity to bond with the child, he will need a lot of time." Could there be a trend toward 50/50 parenting? "This man was not previously married," notes Viken from the scenario facts. "Very likely he would be a really doting father at age 40 and would want to spend a lot of time with this child."
How much child support will the plaintiff receive? Viken predicts only the guidelines amount, which would be less than $25,212 per year. Would a judge supplement this with alimony? "Only until she got a job," replied Viken.
How about the plaintiff's claim for a share of the $2 million in pre-marital savings? "She can't touch it."
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
How does the lack of a marriage affect the outcome? "This is a case where if ever a court were going to give sole legal custody the woman might get it," says Viken. "Sole legal custody is more often granted after one-night stands when the guy doesn't want to support or care for child." What are the practical effects of sole legal custody? "It won't affect parenting time options for the father, if he wants it, but it gives the mother more ability to move out of state."
How much child support will the plaintiff receive? "It would be a little less than the top of the guidelines due to the minimum wage that a judge would impute to her." (i.e., about $450,000 over 18 years, plus any child care expenses and medical costs would be allocated primarily to the father due to his higher income)
The child support allotted could be $2,101 (the top of guidelines) but may be less due to imputed minimum wage. Added to the child support would be child care expenses and medical expenses, which would be shared according to the parties’ incomes.
What if the plaintiff marries someone with a $100,000 per year income? Will that change her child support entitlement? "No," says Viken. "Not if minimum wage income has already been imputed to her."
How easy is it for a custodial parent to move out of state with a child? "The standard is purely 'child's best interest'," notes Viken, "and governed by SDCL 25-4A-17, 18, and 19." This focus on the child makes it much tougher to relocate from South Dakota than from typical New England states, for example, in which arguments can be made regarding the benefits of removal to the relocating parent. How difficult is it in practice to obtain approval for relocation? "Assuming dad is going to school conferences, keeping up on what kid is doing in school, etc., it is very tough to relocate," says Viken. "You're going to transform dad into nothing more than a good uncle. He won't be able to go to dad's day at school or game practice."
What has Viken learned in her 36 years of practice? "Shared parenting agreements are most often the ideal agreement for the child," says Viken. What about the many states where custody proceedings focus on who took care of the kids during the marriage and try to extrapolate that, via court order, on divorced parents? "I always tell clients that what is best for the child is to have as much contact with both parents as possible." What are her tips for successful shared parenting? "First, craft a schedule that works for the child. Can the child transition between homes once per week, for example. Also, the former spouses should treat one another as if they were still married," Viken says. What does that look like? "If the co-parent calls and asks you to take care of the kid on a Friday night, you accommodate them just as much as if you were still married."
How would she characterize the alternative to "shared parenting"? "Parallel parenting, where each parent does whatever he or she wants when the children are with him or her,” explains Viken. "I don't think it is good for children. Shared parenting is obviously best for the kid, though not everyone is capable."
Does Viken expect legislative change in South Dakota? "Every year we have a group of fathers who come in and try to get a law to presume shared parenting," says Viken. "A lot of these fathers are not good representatives because mostly they don't want to pay child support."
What change has she seen during her career? "One thing that I've seen in 35 years is a wonderful change in how much fathers are involved."