November 27, 2018|
It’s not uncommon for a child to experience parental incarceration at some point in their young lives. Parental incarceration simply means that one or more of the child’s parents is behind bars for a period of time. Having a parent in jail can significantly alter a family’s dynamic. Not only is a child’s parent not around, but the family’s financial stability can be jeopardized. This is true even if parents are divorced.
What happens when a parent who is obligated to pay child support is convicted of a crime? Does the fact that they’re incarcerated halt their child support and/or spousal support obligations? What can a non-incarcerated parent do to get the money they need to support their family? These are all important questions. Our Los Angeles family law attorneys discuss the answers.
Incarceration and Child Support Obligations
The fact that a parent is sentenced to time behind bars won’t automatically end their legal obligation to pay child support or alimony. At a minimum, 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. A court order can only be modified if a formal request is submitted to the court.
There are limited situations in which a court will agree to modify a court order. The fact that a parent has been incarcerated can be used to persuade a judge to modify or suspend court-ordered payments. The incarcerated parent will have to provide a valid reason for modifying the order.
One legitimate reason for modifying support obligations is a change in the parent’s income. If a parent has been imprisoned, chances are fairly high that they will have lost their job and income. Income is a critical factor for calculating child support obligations. A parent can only be required to pay as much as he or she can afford. Without an income, child support obligations can be changed.
Basing Child Support Payments On Something Other Than Wages
It’s important to understand that income and wages from a job are not the only factors that go into calculating child support. A parent’s assets, financial reserves, and other sources of income (e.g., royalties, dividends, rental income) can all be used to determine child support payments. A parent who is incarcerated may experience a decline, but not a total loss, in income. That parent cannot ask for child support obligations to be terminated. Instead, child support can simply be reduced to accommodate the reduced ability to pay.
What can a parent do to make sure that an incarcerated parent is still required to pay his or her fair share of the family’s expenses? Just because a parent is incarcerated doesn’t mean that they automatically escape responsibility owed to their children. However, it’s smart to expect the incarcerated parent to request a modification to the support order(s). The non-incarcerated parent can be prepared for this move:
- 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.).
The incarcerated parent can ask to have child support payments reduced. The non-incarcerated parent can contest the modification order and make a case for the benefit of the children.
Child Support Obligations Can Adjust After Release From State Custody
Child support obligations are not set in stone. They can change as a parent’s ability to pay fluctuates. Once a parent is released from state custody, child support obligations can be modified once again. The non-incarcerated parent can file a motion to modify the court-ordered child support. However, keep in mind that a parent can only be required to pay what they can afford. It may take time for the recently-released parent to get back on his or her feet and find a job.
What if the parent doesn’t actively look for work? The non-incarcerated parent can ask a judge to hold the newly-released parent in contempt of court. Parents subject to a child support order are required to actively search for work to comply with support requirements. Intentionally avoiding this responsibility can have criminal consequences. The parent may have to consult with a Los Angeles criminal attorney to limit the damage and prevent spending additional time behind bars.
Is your child’s other parent incarcerated? Are you having a difficult time securing court-ordered child support payments? Contact our Los Angeles family law attorneys for help. We’ll review your case and design a strategy to recover the child support payments you and your family deserve. Call today to learn more.