A report by the Pew Charitable Trusts found that 1.2 million people serving time in jail are parents of minor children. If you are a non-custodial parent, you may still be required to pay child support regardless of whether you were incarcerated before or after your divorce was finalized and the support order was established. Here's more information about this issue and what you can do if you don't have the cash to pay.
When You Have Adequate Assets
Incarceration doesn't automatically stop or suspend a support order, nor does it halt any legal action taken by an ex-spouse to recover child support that is owed. For example, your ex can still file a lawsuit to have your bank account or wages garnished to collect child support arrearages.
The only way to change a support order is to petition a court to lower the payments or suspend them until you're released from jail. Being in jail, though, is no guarantee the court will amend the support order. Even though you may not be able to actively generate income, the court may deny your request to amend the order if you still have sufficient income or assets to cover the payment. If you get a monthly disability check that provides enough income to cover the required amount, for instance, the court will likely not approve a child support modification request.
In fact, being in jail may work against you. The state can garnish up to 60 percent of your paycheck to cover any child support arrearages. Since you're not likely to be supporting any other dependants while you're in jail, the state may decide to take the maximum amount.
The court will consider all possible sources of income you may receive to determine if you should keep paying the support order, including
- Interest or dividend income from investments
- Rental income from real estate
- Retirement, disability, Social Security, and similar payments
- Bank accounts, retirement savings, Certificates of deposit, and other savings type accounts that can be used to pay your support obligation
- Assets that could be sold to make the payments such as cars, property, stocks, and bonds
If your ex-spouse can adequately prove you have these assets, then you'll probably be required to continue making child support payments while in jail.
When You Don't Have Adequate Income and Assets
If you have some money but not enough to fully cover the support obligation and you don't see that changing in the near future, you can petition the court to modify the support order. Most courts will approve the request as long as you can demonstrate you have experienced a significant change in status that affects you ability to pay, and being incarcerated would fit this requirement.
You will have to file the request in the same court where the support order was issued, and you will likely be required to show up at a hearing to argue your case. Obviously, this will present some logistical challenges, particularly if you are serving time in an out-of-state jail or prison. The court may make an exception and allow you to participate in court proceedings over the phone or through video chat. Otherwise, you may have to give someone power of attorney to make legal decisions on your behalf.
Be aware that your current support order will remain in effect until the new order is approved by the court, even if you come to a verbal agreement with your ex-spouse about making reduced payments. You should pay as much as you possibly can until the case is resolved.
When You Have No Income
If going to jail caused you to completely lose your ability to generate income, then you can petition the court to suspend the child support order until you are released from jail and find employment. This option will stop the support from accruing and prevent you from leaving jail tens of thousands of dollars in arrearages.
Like with a child support modification request, you'll need to provide the court with a good reason why it should grant this motion. However, not all states view incarceration as a viable reason for suspending support orders. For example, in Ohio, incarceration is classified as voluntary unemployment. This means prisoners in this state cannot have their support orders suspended, which causes them to build up a mountain of child support debt.
In this case, you'll have to petition the court to modify the support order so that you're paying zero dollars per month or at least the lowest amount possible to avoid this outcome.
For more solutions on handling child support obligations while you are incarcerated, talk to a family law attorney as soon as possible.