When one parent is incarcerated or is behind bars for a period of time, it can significantly impact a child’s life – especially if the parents are divorced. Not only does parental incarceration mean that one parent is not around, it also jeopardizes the family’s financial stability. In circumstances where the parents are divorced, incarceration of one parent can also impact his or her obligation to pay child support.
Parental Child Support Obligations and Incarceration
The fact that a parent is in jail does not automatically end his or her legal obligation to pay child support or alimony. At the very least, the child support obligations will be suspended for 60 days as the parent adjusts to life behind bars. Child support and spousal support payments are mandated by court order. This means that only the court has the power to modify these payments only after a formal request is submitted.
Limited Situations When Court Modifies a Court Order
There are limited situations in which a family court will agree to modify a court order. The fact that a parent is in jail can be used to persuade a judge to modify or suspend court-ordered payments. The parent who is incarcerated must provide the court with a valid reason for seeking a modification of the order.
One valid reason for seeking a modification of support obligations is a change in the parent’s income. If the parent has been incarcerated, there is a great likelihood that he or she will have lost his or her job and income. And since income is a critical factor for calculating child support obligations, the court is more likely than not to modify the court order for child support obligations.
Other Factors Impacting Child Support Payments
It is important to understand that a parent’s income and wages from a job are not the only factors that the court considers when calculating child support. Other important factors that impact a court’s decision include the parent’s:
- Financial reserves
- Rental income
Just because a parent is incarcerated does not mean that he or she has experienced a total loss in income. The court will not automatically honor a modification of child support obligations. Instead, the court may simply reduce the payments to accommodate the reduced ability to pay.
Steps to Take to Require Incarcerated Parent to Make Payment
There are several steps a parent can take to make sure that an incarcerated parent is still required to pay his or her fair share of the family’s expenses, including:
- Review all of the incarcerated parent’s financial disclosures that were required in the divorce.
- Find any assets and other sources of income that could be used to fund the monthly child support payments.
- Review the modification order carefully and contest any changes that seem out of place.
- Gather evidence to show that while the incarcerated parent’s income has been reduced, so have their financial obligations (e.g., rent, car insurance, gas, etc.).
Call an Experienced Central Valley Family Law Attorney
If you are involved in a custody battle, it is in your best interest to consult with an experienced family law attorney to help you learn your legal rights and options with respect to your child custody and visitation rights.
For more information or to schedule a complimentary consultation with Central Valley family law attorney Gurjit Srai, please call (209) 323-5558 or (559) 449-1447, or complete our online form.