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South Dakota State Law

1. General Program-At-A-Glance

1. How many local child support offices are in your state excluding agencies with cooperative agreements?
8 Local Offices.
2. What is the name of your IV-D agency?
Division of Child Support.
3. Is your state administrative, judicial, or a combination of both? In particular, does your state primarily use judicial or administrative procedures to establish and/or enforce support orders? Please describe.
A combination of both. South Dakota uses judicial and quasi-judicial processes to establish paternity, establish support orders, and modify support orders. Majority of enforcement actions are done administratively.
4. Does your state use the following applications: EDE, CSENET, QUICK?
CSENet and QUICK.

2. Duration Of Support

1. What is the duration of support in your state? Include the age of majority when the support obligation ends in the absence of other factors. Include your state's statutory citation(s).
Until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in a secondary school.
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2. If not addressed in the order, at what age is child support automatically terminated as a matter of state law? Qualify, if necessary.
Until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in a secondary school.
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3. Does the date of the order determine the law that is applied to the duration of support? If yes, describe.
Yes.
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4. Does your state law allow support to be paid beyond the age of majority under certain circumstances (for example, if the child has a disability or is in college)? If yes, describe.
Yes. The parties can agree to a longer period of support and if approved by court order is enforceable and binding upon the parties.
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5. What are your state's laws regarding the emancipation of the child that would result in early termination of the child support obligation? Describe.
Any person under the age of 18 who (1) has entered into a valid marriage, whether or not such marriage was terminated by dissolution; or (2) is on active duty with any of the armed forces of the United States of America; or (3) has received a declaration of emancipation pursuant to SDCL 25-5-26 is an emancipated minor.
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6. Does child support end if the child no longer lives with the custodial parent but does not emancipate according to state law? For example, the child graduates from high school at 17 and no longer lives with the custodial parent?
No.
7. For orders that include multiple children, does your state automatically reduce the current support owed for remaining children after one of the children in the order reaches the age of majority or otherwise emancipates? If yes, describe.
No.
8. Does your state provide IV-D services to establish support for a child who is no longer a minor but for whom state law provides post-majority support (for example, if the child has a disability or is in college)? If yes, please describe the specific circumstances.
No.

3. Statute Of Limitations

1. What is your state's statute of limitations for the collection of past-due support?
20 years from the date support was last due.
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2. What is your state's statute of limitations for the establishment of paternity/parentage? Please explain.
Proceedings may start any time before the child's 18th birthday.
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3. Is dormancy revival/renewal possible? If yes, under what circumstances and for how long?
No.
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4. Support Details

1. What guideline type or method does your state use to calculate child support (for example, Income Shares Model, Percentage of Income Model, Melson Formula)?
Income Shares Model.
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2. Does your state have any statute(s) addressing interest on arrears? If yes, indicate the amount of interest charged, any related conditions, and the statutory citation.
Yes. South Dakota Division of Child Support (DCS) does not compute interest. However, the obligee can initiate a court action to obtain a judgment for interest. The court has the discretion as to whether to grant the interest judgment. If the interest is reduced to judgment and a copy of the judgment is provided, DCS will collect the judgment along with the child support. Interest is computed at 1% per month.
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3. Does your state's IV-D agency calculate interest on arrears? If yes, indicate the amount of interest charged and any related conditions.
No. The South Dakota Division of Child Support does not compute interest.
4. Does your state charge interest on retroactive support? If yes, indicate the amount of interest charged and any related conditions.
No. South Dakota Division of Child Support (DCS) does not compute interest. However, the obligee can initiate a court action to obtain a judgment for interest. The court has the discretion as to whether to grant the interest judgment. If the interest is reduced to judgment and a copy of the judgment is provided, DCS will collect the judgment along with the child support. Interest is computed at 1% per month
5. Will your state enforce a medical debt for any uninsured portion? If yes, under what circumstances?
Yes. The obligee must obtain a judgment for the unreimbursed medical expenses and provide a copy of the judgment to DCS. DCS will collect the medical judgment along with the child support.
6. If your state has issued an order, and another IV-D agency asserts that the person/entity entitled to receive child support payments has changed from the person/entity designated in your state's order (due to a change in placement or foster care status), what does your state require in order to change the person/entity entitled to receive payments?
The order will follow the child when TANF or Foster Care is being expended. If the child is receiving only medical benefits with a caretaker, a custody or guardianship order is required to redirect child support to the caretaker. SDCL 28-7A-7, 25-7A-2 and 25-7A-3.
6.1. Does it matter if the child receives TANF or Medicaid-only? If so, explain.
Yes. The order will follow the child for TANF cases. Non-TANF cases, including Medicaid-only, require the caretaker to have obtain an order for custody or guardianship.
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7. Does your state require that a custodial party, who is not one of the biological parents, have legal custody of a child before enforcing an order for support that was issued to the biological parents as the parties for non-public assistance cases?
Yes.
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8. Does your state IV-D agency give the noncustodial parent credit toward child support for Auxiliary Benefits received directly by the custodial parent on behalf of a child as a result of the noncustodial parent's Social Security Retirement, Survivors, or Disability Insurance (RSDI) benefit?
Yes. The noncustodial parent receives a dollar for dollar credit.
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9. Does your state abate support? If yes, explain the circumstances and provide your statutory citation.
Yes, if the abatement is specifically ordered in the child support order.
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5. Paternity/Parentage

1. Does your state law require custody and visitation to be addressed at the time of paternity/parentage establishment? If yes, please describe and provide the statutory citation.
Yes. In certain actions for establishing a child support order and if the obligee is the biological mother of the child, the child support order may state "NAME has physical custody of the aforementioned child(ren) and is entitled to support based on the statutory custody established by SDCL 25-5-10 and 25-8-7."
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2. What is the percentage of probability for genetic testing that creates a rebuttable or conclusive presumption of paternity?
99% or higher.
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3. What is the state law citation that makes paternity acknowledgment conclusive? Please describe (if appropriate).
South Dakota has rebuttable presumptions of paternity. Either party can rescind the affidavit by commencing an action in circuit court within 60 days of signing the affidavit unless any administrative or judicial proceeding related to the child has already been commenced. A party can also contest paternity for a period of up to 3 years after signing the paternity affidavit on the basis of fraud, duress or material mistake of fact. The party will be required to commence circuit court action.
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4. Does marriage constitute a rebuttable presumption of paternity/parentage without exceptions? Please describe and provide your statutory citation.
Yes. The noncustodial parent must commence an action in circuit court within statutory time frames.
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5. Does the father's name on the birth certificate constitute a conclusive presumption of paternity? Please provide your state citation. If no, please describe.
No. The father must either sign a paternity affidavit, there must be genetic test results of 99% or higher, or there must be a judgment of paternity entered by the court.
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6. Does your state have any other paternity/parentage-related presumptions? If yes, please describe.
No.
7. What, if any, is the agency name and link for your state's putative fathers' registry?
South Dakota does not have a punitive fathers registry.
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8. What documents regarding paternity can your state's IV-D agency provide to other IV-D agencies? Are there any charges to the requesting IV-D agencies?
A copy of the acknowledgment of paternity, a copy of the genetic test results or a copy of the paternity judgment. There are not any charges.
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9. Does your states bureau of vital statistics charge any fees to other states or private individuals for requesting searches, paternity/parentage documents, and data?
Yes.
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9.1. Describe any circumstances under which these fees may be waived?
A Child Support Enforcement Transmittal #3 is required to be sent to SD Central Registry requesting a copy of the paternity acknowledgement. It normally takes 7-10 days to receive from Vital Records and the paternity affidavit is mailed upon receipt. If you want the paternity affidavit copy emailed to you, the request must indicate and an email address must be provided. The paternity affidavit will be emailed through Voltage secured email system. Original Paternity Acknowledgement and/or order of adjudication is to be sent directly to the Office of Vital Records.
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10. Is common-law marriage currently recognized in your state? If yes, describe the standard that defines common-law marriage and the date the standard went into effect.
No.
11. If there was a prior common-law standard in your state that is no longer in effect, what were the dates that standard was in effect? Describe the standard.
N/A
12. If there is more than one child with the same custodial party and the same alleged father, should an initiating jurisdiction send one intergovernmental packet to your state (with a separate Declaration in Support of Establishing Parentage forms for each child) or a separate intergovernmental packet for each child?
Only one intergovernmental packet is required by South Dakota.

6. Support Order Establishment

1. Does your state use an administrative, judicial, or a combined process to establish a support obligation?
Administrative and Judicial.
1.1 If your state can establish both administratively and judicially, under what circumstances would your state use the administrative process? Please provide the statutory citation for your state's administrative procedures.
Administrative process is used when the Notice of Support Debt (NSD) is served on the parents and the action is not contested. SDCL 25-7A-5 to SDCL 25-7A-7.
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1.2. Under what circumstances would your state use the judicial process? Please provide the statutory citation for your state's judicial procedures.
Judicial proceedings are used when a request for a hearing on the NSD is submitted in writing or when a referral is made to the IV-D prosecutor to initiate court proceedings to establish a child support order. SDCL 25-7A-5 to SDCL 25-7A-7.
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2. When setting support using your state's guidelines, whose income is considered in addition to the noncustodial parent's (for example, custodial parent, spouse, child)?
The combined monthly net incomes of both biological/adoptive parents are used in determining a child support obligation.
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2.1. What documentation is required as proof/evidence of this information?
Financial statement, check stubs, tax records, verification through the South Dakota Department Department of Labor and Regulation, or FCR.
3. What criteria for rebutting your presumptive guidelines have been established in your state?
The noncustodial parent has 10 days from the date of service of the NSD to request a hearing.
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4. Will your state establish support orders for prior periods of support? If yes, please describe (for example, from the birth of the child, from date of separation, prenatal expenses, five years retroactive).
Yes. Prior period support is limited to 3 years retroactive from the date of application for services.
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4.1. What information or documentation does your state require to proceed with establishing support for prior periods?
The custodial parent can request prior period support on the application. Other states can request prior period support on the Uniform Support Petition, and/or the General Testimony. If TANF has been expended by the requesting state, the TANF and non-TANF months need to be listed on the General Testimony.
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4.2. Will your state allow a petition for support for a minor child when the only issue is retroactive support?
Yes.
4.3. If there are limitations upon your state's ability to establish support for prior periods, specify those limitations.
Prior period support is limited to 3 years retroactive from the date of application for services.
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5. Does your state require that a custodial party, who is not a biological parent, have legal custody of a child before establishing an order for support when public assistance is being expended?
No.
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5.1. What about when public assistance is not being expended?
Yes.
6. When your state has issued an order that reserves support, and now child support should be ordered, does your state require establishment or modification?
If the order which reserves support is the controlling order, the parties will need to return to court in the state which issued the order to have support set. If it is a SD order and one of the parties still resides in SD, an action will need to be commenced in Circuit Court to have support set.
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7. When there is an existing support order between the parents of a child and the child's residence changes from one parent to the other, does your state require that the new custodial parent obtain legal custody before child support is addressed? Please describe.
No. If the parents have agreed to a change in physical custody without the court's approval, the order may be modified as the parent who relinquished physical custody may be ordered to pay support.
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7. Income Withholding

1. What are specific sources of income not subject to withholding?
Supplemental Security Income (SSI); VA Benefits; Work Release Earnings of inmates of the State Penitentiary; State Retirement Funds; Census Bureau Earnings; Work Study.
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2. Does your state law adopt the federal Consumer Credit Protection Act (CCPA) income withholding limits? Please provide the statutory citation.
Yes.
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2.1. Does your state have policy or procedures allowing the agency to use lower limits than the CCPA?
Total amount of arrearage may be withheld from personal property, money and credits, or other income not listed. 50% of the wages, salaries, commissions, bonuses, compensation as an independent contractor, workers compensation, unemployment compensation or disability benefits.
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2.2. What are the withholding limits for non-employees?
50% of the wages, salaries, commissions, bonuses, compensation as an independent contractor, workers compensation, unemployment compensation or disability benefits.
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3. What is the maximum fee for the administrative cost that an employer may charge for processing income withholding orders? (45 CFR 303.100 (e)(iii).
The employer may deduct an amount up to $3.00 per month from the obligors income to cover expenses involved in transmitting the amount withheld.
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4. Does your state charge any fees to the noncustodial parent that the employer must withhold and remit to the state? If yes, please explain.
No.
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5. Is an employer required to begin withholding after the date of service, receipt, or mailing of an income withholding order?
After the date of receipt of the income withholding order.
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5.1. How many days following the first pay period that occurs after service, receipt, or mailing of an income withholding order is an employer required to begin withholding?
First payment of income which is payable to the obligor following receipt of the order to withhold income.
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6. When must an employer remit amounts withheld from an employee's pay?
Within 7 business days after the obligor is paid or property withheld.
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7. What are your state's sanctions for employers for not implementing income withholding?
Request for employer compliance. If unsuccessful with voluntary compliance, referral to the attorney for legal action.
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7.1. What are the penalties to an employer for failure to remit payments withheld?
Petty offense. The employer may also be responsible for amounts which were not withheld as required by law.
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8. Does your state allow other jurisdictions to send income withholding orders for unemployment insurance (UI) benefits directly to your state's UI agency? If yes, please explain your process and include any additional required documents.
No. The South Dakota Department of Labor and Regulation will not accept direct withholding from any state.
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8.1. If no, what is your state's process to aid the other jurisdictions in withholding UI benefits? Please describe and include the required documents.
South Dakota has an automatic intercept process for UI benefits. A full UIFSA packet requesting interception of benefits will need to be submitted to SD Central Registry.
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9. Does your state allow other jurisdictions to send income withholding orders directly to a noncustodial parent's financial institution in your state? If yes, please explain your process and include any additional required documents.
Yes. Direct withholding orders may be issued to employers, financial institutions, and workers compensation carriers.
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9.1. If no, what is your state's process to aid the other jurisdiction in collecting from a financial institution? Please describe and include the required documents.
N/A
10. How does a noncustodial parent contest an income withholding in your state?
An administrative review can be requested within ten days after receiving the income withholding order if there is a dispute concerning the existence or amount of the order for support or delinquency or arrearage; or for mistaken identity.
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11. How does your state allocate payments when there is more than one claim against the noncustodial parent's income? Should the payment be divided equally or pro-rated among the cases? (See 45 CFR 303.100(a)(5).)
The payments are prorated among the cases.
12. When calculating disposable income for child support purposes, what are the mandatory deductions from gross income required by state law, such as union dues or medical insurance premiums?
The total amount withheld for child support cannot exceed 50% of an employees income after deducting state, federal and local taxes, Social Security tax, statutory pension contributions; Medicare taxes; and other deductions which are required to be withheld, either by law or as a condition of employment.
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13. When does your state require the employer to send notice of an employee's termination?
The employer must promptly notify the Division of Child Support when the employee is no longer working for them.
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14. When your state is enforcing an order and receives payment through income withholding that is not enough to cover the full amount ordered, how does your state apply the payment to the types of support (for example, current, arrears, medical, spousal support, other)? Please describe and provide the statutory citations, if appropriate.
South Dakota law gives priority to current support and arrearages. The amount withheld for current support, spousal support, arrearages, and health insurance premiums cannot exceed the 50% withholding limitation.
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8. Distribution

1. Does your state pass through collections (and disregard collections for Temporary Assistance for Needy Families (TANF) eligibility purposes) in current assistance cases? If yes, provide the amount and explain.
No.
2. Does your state participate in the pass-through in former assistance cases? If yes, provide the date and explain.
No.
3. In former assistance cases, are federal income tax refund offset payments applied to families first (DRA distribution) or state arrears first (PRWORA distribution)?
PRWORA.
4. How does your state distribute payments when the noncustodial parent has arrears due to your state and another state?
Once current support for the month is paid, any excess money will be split proportionately and applied to each case.
4.1. If there are no arrears due to your state, how does your state distribute payments when the noncustodial parent has arrears due to multiple states?
Once current support for the month is paid, any excess money will be split proportionately and applied to each case.
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9. Enforcement

1. What data matches (for example, financial institution, state lottery) and enforcement remedies are available through Automated Administrative Enforcement in Interstate Cases (AEI) in your state? (See AT-08-06: Implementing Section 466(a)(14) of the Social Security Act, High-Volume, Automated Administrative Enforcement in Interstate Cases.)
FIDM.
2. What criteria must be met, and in addition to Transmittal #3, what documentation does your state require to proceed with an AEI request?
CSE Transmittal #1, Affidavit of Arrears, copies of all Court Orders. For FIDM, a copy of the match information is required.
3. What are your state's criteria for reporting a noncustodial parent's child support information to credit bureaus?
Any obligor who is delinquent in the payment of support and owes in excess of $1000 is child support arrears is required to be submitted to the credit bureaus.
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4. To which credit bureaus does your state report a noncustodial parent's child support information?
Experian, TransUnion, and Equifax.
5. Is the method for credit bureau reporting judicial, administrative, or both?
Administrative.
6. Can a noncustodial parent who no longer has a past-due account have the report removed from the credit bureau? If so, what must the noncustodial parent do?"
No. Once all arrears are paid, a zero balance will be reported to the credit bureaus. The account will be listed as a current account for 7 years.
7. When your state is the responding state, does it submit past-due cases to OCSE for federal administrative offset? If yes, what is the minimum required past-due amount?
No.
8. When your state is the initiating state, does it submit past-due cases to OCSE for federal administrative offset? If yes, what is the minimum required past-due amount?
Yes. $150 for TANF or Foster Care cases. $500 for non-Assistance cases.
9. When your state is the responding state, does it submit past-due cases to OCSE for insurance match? If yes, what is the minimum required past-due amount?
No.
10. When your state is the initiating state, does it submit past-due cases to OCSE for insurance match? If yes, what is the minimum required past-due amount?
Yes. No minimum amount.
11. When your state is the responding state, does it submit past-due cases to OCSE for MSFIDM? If yes, what is the minimum required past-due amount?
Yes. $1000 is the minimum required past-due amount.
12. When your state is the initiating state, does it submit past-due cases to OCSE for MSFIDM? If yes, what is the minimum past-due amount?
Yes. $1000 is the minimum required past-due amount.
13. When your state is the responding state, does it submit past-due cases to OCSE for passport denial?
No.
14. Are the financial institution attachment procedures in your state judicial, administrative, or both?
Administrative. South Dakota Division of Child Support issues a lump sum Income Withholding Order to the financial institution to seize funds within the account.
15. Are there specific account types exempt from the administrative, financial institution attachment process in your state? If yes, which account types are exempt?
Discretion is used when the account is a checking account and/or joint account and the noncustodial parent is the secondary account holder.
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16. Is the financial institution attachment process in your state centralized and/or automated?
Neither. The Child Support Specialist reviews the FIDM returns on a case by case basis.
17. What are the criteria to attach an account in a financial institution in your state?
An account balance of at least $4000 and the noncustodial parents total arrears exceed 3 months of the monthly support obligation. If the noncustodial parent is paying, deceased, receives SSI, SSDI or TANF the case is not eligible for a lump sum withholding.
18. Does your state's law require financial institutions doing business in your state to accept enforcement actions directly from other states? If yes, provide the statutory citation. Please explain.
SD allows for a lump sum income withholding order to be issued to the financial institution. If the FI will not honor the direct action, the other state will need to send an AEI request to SD.
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19. If there are no statutory criteria required to attach an account, describe the process for requesting a financial institution attachment from another child support agency (for example, a Transmittal #3) and list additional documentation required.
The requesting agency must send a CSE Transmittal #1, Affidavit of Arrears, copies of all Court Orders, and a copy of the match information.
20. Does your state's income withholding definition include amounts in financial institutions?
Yes.
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21. Does your state require sending a notice of intent to the noncustodial parent when attaching an account in a financial institution? Who notifies the noncustodial parent - the state, the financial institution, or both?
The Division of Child Support will send a copy of the Income Withholding Order to the noncustodial parent.
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22. How long does the financial institution have to hold funds before sending the noncustodial parent's assets to your child support agency?
Within 7 days of the date of the Withholding Order.
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