How Does Incarceration Affect a Parent’s Child Support Obligations?

The incarceration of a parent can place tremendous stress on the family. While many aspects of the parent’s life are put on hold, child support obligations are not. Under Florida law, going to prison does not excuse a parent’s responsibility for child support payments. The only way to change existing child support is through a court order. Parents may face serious penalties for failing to pay child support for any reason, including incarceration.

Filing a Motion to Modify Child Support

Petitioning the court is the only way to suspend or modify child support payments. To begin this process, a parent submits a Motion to Modify Child Support. This document is filed with the same court that set up the existing child support terms. The original order may have been part of a divorce, a paternity action, or any other matter related to the child.

The paperwork includes the same case number, division, and court information as contained in the original order. The parent must file the Motion with the clerk of the circuit court in the county that provided the existing support order. The parent must also provide a copy to the other parent (known as service).

Under Florida law, the court will change a child support order only in cases where there has been a “substantial change in circumstances.” The court must also find that modification is in the best interest of the child. Children are entitled to financial support, so a parent’s inability to pay does not automatically mean that modification furthers the best interests of the child.

It is important to note that incarceration alone is typically not enough to suspend child support payments. It may be considered a substantial change in circumstances if the parent can show that he or she has a decreased ability to earn money during incarceration or after release. This might be the case, for example, if a parent lost his or her job and faces difficulty finding work due to having a criminal record.

Bear in mind that the court will consider all assets and sources of income the parent has. This may include royalties, dividends, and/or rental income.

What Happens After Filing a Motion to Modify?

After an incarcerated parent files a Motion to Modify, the court will wait until the parent is released before holding a hearing. At the hearing, the court will determine if the existing payments should be reduced. The court will not be able to forgive any missed payments that accrued before filing the motion. As a result, the incarcerated parent should file the motion as early as possible. All payments owed before filing the petition will be due immediately.

Options for Child Support Modification

The incarcerated parent may ask the court to suspend payments for the period of imprisonment. The court will then reevaluate the parent’s financial circumstances after release. Courts in Florida are unlikely to eliminate all payments while the parent was in prison. Typically, this would not be in the child’s best interests.

To meet the child’s needs after a period of incarceration, the court will consider other payment options. The court may allow a parent to submit missed payments under a payment plan. Alternatively, the court may order the parent to continue to pay support after the child turns 18.

What Happens When A Parent Fails to Pay Child Support?

If an incarcerated parent fails to pay child support, the state may impose a number of penalties. The state may suspend the parent’s driver’s license and professional licenses, levy bank accounts, and/or intercept tax refunds. In serious cases, the parent may face additional jail time for noncompliance.

Further, the support payments will continue to add up during the entire period of incarceration. The court can retroactively relieve the parent of this debt, but only if the motion to modify was filed as soon as the parent went to prison. The court will not adjust amounts owed before the parent filed the Motion, even though the hearing will not take place until after the parent is released.

Child Support After Release from Incarceration

After all outstanding payments are resolved with the court, the parent can then clear up any issues related to license suspensions, levies, or personal credit. If the financial or other circumstances of either parent changes again, a parent can request another modification. Keep in mind that above all else, the court will make its rulings in accordance with the best interests of the child.

Contact Our Divorce Law Firm in Orlando, FL

Contact the experienced Orlando divorce lawyers at McMichen, Cinami & Demps today for legal assistance. Contact our Orlando, FL office at (407) 898-2161 to schedule a free consultation.

McMichen, Cinami & Demps – Orlando Office
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Orlando, FL 32803