The world of child custody during or after a divorce proceeding can be a complex and frustrating one, and this effect only increases when we’re talking about child support payments made between estranged spouses. These already-strained situations, though, can get even stranger when the spouse responsible for child support is incarcerated for any reason.
At the offices of Day Shell & Liljenquist, LC, we’ve dealt with this as part of our child custody and support attorney services. What happens to your child support situation if the spouse paying it is convicted of a crime? Does this change their obligation? Let’s go over some important facts to know here.
Can Child Support Be Modified for Incarceration?
Child support payments are made via a specific court order, which must be changed for the orders to be altered – even if incarceration is part of the equation. The only exception here is right at the beginning of an incarceration period, during which obligations will be suspended for 60 days to allow both parents to adjust to this new reality.
From here, however, a formal request must be submitted to the court for a permanent change in obligations. The incarcerated parent has to provide legitimate reasons for modifying the order, one of which might be a major change in income due to the incarceration. Because income is a big factor in calculating support requirements, this is the most common reason why these orders are amended.
It’s important to remember here that income and money are not the only factors that play a role in child support requirements, however. Assets, reserves, and other kinds of income can all be used, including areas that don’t decline when one is incarcerated (think rental income or royalties). This factor will play a role in whether obligations are changed by the court.
Handling Modification Requests
Even given the above information, always remember that just because your incarcerated spouse is in this situation does not mean they are free of their responsibility to your children. Here are some things you can do to prepare for the request they’ll make to modify the child support order:
- Go back over all financial disclosures from the divorce.
- Look specifically for additional sources of income that could help cover any losses due to incarceration.
- Review the modification request in detail, and be sure to contest any changes that aren’t proper.
- Provide evidence to show that despite a reduction in the incarcerated parent’s income, they also have lower financial obligations due to their situation and should still be required to provide support.
Adjustment After Release
If a modification is made to the child support order based on incarceration, be aware that this can be re-adjusted after they are released. You can file a motion to modify the order this time, and you’ll have a high chance of success if your previously incarcerated spouse has returned to a better income situation once being released.
In cases where this person does not attempt to look for work or gain income, you can ask the judge to hold them in contempt of court. All parents subject to a child support order are required to actively search for work, and they might be in violation of this rule.
For more on dealing with child support payments for incarcerated parents, or to learn about any of our personal injury or family law service, speak to the attorneys at the offices of Day Shell & Liljenquist LC today.