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Child Support & Incarceration—Do You Have to Pay While in Jail?

When it comes to child support modifications, a significant life change (such as losing a job), can convince a judge to modify their original court order. However, that's only if you go through the proper legal process to secure said modification. Nothing—not even getting thrown in jail—will automatically change the terms of court-ordered child support.

The only ways that child support can end automatically include:

  • If a child is no longer a financial dependent,
  • They no longer live with the parent on the receiving end of the support,
  • And/or when the child turns 18 (unless the court order states otherwise)

The only way that child support can be modified or terminated is through another court order, and these court orders won't get issued without a petition from one of the parents.

What Happens If You Don't Get a Child Support Modification?

If the parent paying child support goes to jail and just assumes that they don't owe payments during their incarceration, the child support arrears will simply add up. That parent could then be found in contempt of court, and later not only have to pay back all that missed child support, but also have to pay even more in interest and penalties.

If the paying parent can't get caught up on child support payments after being released from jail, then they could be dealing with:

  • Their drivers' license getting suspended
  • Losing a professional license
  • Being unable to secure a passport

After any serious changes in life circumstances, such as a criminal arrest and conviction, it is up to the parent to take legal action and petition a family judge to modify the child support court orders. It's crucial to get a lawyer advocating for you in this situation, since matters won't just sort themselves out, and the legal process ahead can be complicated.

If You Go Through the Proper Child Support Modification Process, Can You Still Be Ordered to Pay Child Support in Jail?

Yes. Getting out of paying child support is not as simple as hiring a lawyer to dot your I's and cross your T's, even when as the paying parent you're serving a jail sentence. It's not even automatic that a lawyer can convince a judge to reduce the child support payment either. Of course, the judge does have the discretion to reduce the amount of child support to even below the guidelines, if need be, such as when the incarcerated parent doesn't have the assets or the income to keep up with payments.

A judge may order child support payments to continue as before, or at least continue at a reduced amount if the incarcerated parent has:

  • Disability or retirement payments coming in
  • Rental income
  • Stocks or bonds
  • Bank accounts
  • Real estate, vehicles, or other assets that can be sold in order to make child support payments

If the incarcerated parent truly does not have the ability to pay child support while in jail, then it is all the more crucial for them to secure a child support modification through the courts. Even if you can't get child support payments terminated, it is possible to avoid having to pay any related penalties for missed payments. For example, you may be exempt from paying the interest for missed payments if while incarcerated, you're involved in job training, counseling, or some other form of official self-improvement program.

Can You Enforce Child Support Payments When the Other Parent Is in Jail?

If the paying parent has failed to take care of legal matters and request a modification, and they aren't paying child support either, the parent who is supposed to receive child support can petition to enforce the court order. The incarcerated parent would then have the burden of proof to show that they cannot pay child support. The judge will then review what types of assets and income the jailed parent has and decide whether there are sources of child support payments available there.

However, even if the jailed parent cannot make payments, a judge may still not budge on the child support court orders in some cases, such as when the paying parent is serving a sentence for a domestic violence conviction. While the judge can't make income materialize for a parent who really has nothing to pay with while in jail, the judge can still decide to let the child support arrears build up. Then at a later date, when the parent is earning an income again, the judge can require that parent to pay all the past-due support, sometimes with interest as well.

You Don't Have to Handle Your Complex Child Support Case Alone

While every child support case is unique, some cases, such as ones involving the incarceration of one parent, are particularly complex, requiring a unique solution. At Miller Law Group, P.C., we don't deal in cookie-cutter approaches. All of our attorneys discuss our cases together, swapping advice so as to benefit fully from our decades of experience in order to craft tailored legal solutions. Our collaborative family law firm has helped clients through criminal cases as well. No case is too complex for us. We have successfully represented paying as well as receiving parents who needed child support modifications.

If you would like to talk to one of our Massachusetts child support lawyers in a free, no-obligation consultation, please don't hesitate to contact us at (888) 874-2142 today.

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