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

Posted by Furman & Zavatsky | Feb 02, 2019

One of the most direct connections between Los Angeles County family law courts and the California prison system or Los Angeles County Jail is failing to pay child support. If you have been ordered by the court to make child support payments, it's your responsibility to make sure the monthly payments are made and in the amount that was ordered by the judge. Typically, when making a child support order is created, the judge will order your employer to take child support payments directly out of your paycheck.

Incarceration and California Child Support Obligation

This is commonly known as wage garnishment, or assignment. Clearly, if you are incarcerated, there is no wage garnishment, and if you fail to make you child support payments, you could face severe legal consequences. For example, if the family court discovers you have the ability to make your child support payments but fail to make them, the judge could hold you in contempt of court. If you violate the contempt order, you could certainly face jail time.

If you are in jail, or lose your employment, it's critical to consult with our Los Angeles divorce and family law attorneys to assist you in modifying child support payments with the court. It's important to note that even if you are incarcerated, the Los Angeles County family court can't change the amount you owe in child support until you file a formal request with the court.

Our family law attorneys will need to carefully review your situation in order to determine the best strategy moving forward. The first step is to understand the laws on California child support obligations and steps to take to honor that obligation while in jail. Let's take closer look below. Contact our law firm if you need additional information or have questions about your specific situation.

Filing for Child Support While a Parent is in Jail

We are frequently asked if you can file for child support if one parent is incarcerated. The answer is yes, but any child support order will be based on their current income. Any parent who is incarcerated will not typically have any income, making it very difficult to obtain a child support order from a parent in jail. However, it should be noted that if the incarcerated parent has a savings account or other sources of income, you might be able to obtain an enforceable child support order.

Do I have to Still Make Child Support Payments If I'm Incarcerated?

The short answer is yes. No parent has future plans on spending time in jail, but if you are facing this unfortunate situation there are some important things you need to know about how it will affect your child support payments. On the surface, it may seem crazy that an incarcerated parent in a Los Angeles county jail or California state prison can still be held responsible by the Los Angeles County family courts for outstanding child support payments.

If you know you are facing some time in jail and don't believe you will be able to maintain your child support payments, you will have to ask the court to suspend your child support order. It would be a wise move to reevaluate your child support order prior to incarceration.

Paying Child Support While in Jail

Any incarcerated parent who owes child support will normally be concerned about interest accruing on outstanding child support payments while they are in jail. Additionally, the Los Angeles County Jails and California prison systems is in a very unique position to locate parents who owe child support. A parent who is incarcerated and owes child support should request from the court the following:

  • Reduce their child support orders while incarcerated
  • Suspend their child support during incarceration

Any determination on reduction, suspension, or modification of child support is the judge's decision. It's important to note the court could decide the child support payments will remain the same while they are incarcerated.

Incarceration Doesn't Automatically Change Child Support Obligation

It might surprise you to learn that incarceration does not automatically change a parent's legal obligation to pay child support. The obligation continues, and worse still, interest will accrue while the incarcerated parent is unable to make child support payments. This can quickly devolve into a financial disaster from which many parents never recover. This is especially devastating for a parent who is attempting to make a fresh start after a period of incarceration.

Luckily, this situation can be prevented with the assistance of an experienced child support attorney. At Furman & Zavatsky LLP, our seasoned Los Angeles divorce and family law attorneys have experience in representing clients in all types of child support cases.

The Rules of Modifying Child Support

Child support can be ordered as part of a legal separation or divorce decree. Once child support is ordered, the obligation to pay continues as ordered until the child is eighteen years old and done with high school.  It should be noted that child support obligations can continue to the age of nineteen if the child is still in high school full time, or even longer if the child is disabled.

It is, however, possible to ask the court to modify a child support obligation prior to the time it automatically terminates. This requires petitioning the court for a modification. The parent seeking modification must then prove to a judge that he or she has legal grounds for modifying the child support obligation. Section 4053 of the California Family Code lists the principles that should guide a court in determining a child support obligation. As a general rule, any changes in these circumstances can justify a modification of an existing child support order.

For example, the first principle listed in this Section is that “[a] parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.” A change from full-time employment to incarceration is a significant change in circumstances that affects a parent's ability to support minor children. An incarcerated parent may, therefore, be able to obtain a modification of his or her child support obligations for this reason.

When Should I Seek a Modification of My Child Support Obligation?

If you have legal grounds for modifying a child support order, it is important to ask the court for the modification as soon as possible. Interest will accrue on any unpaid child support, and child support will accrue at the original amount until a modification is officially ordered by the court. If, for example, a parent has been released on his or her own recognizance pending a sentencing hearing or order of incarceration, it is important to use this time to resolve all financial affairs.

This can include petitioning a family court for a child support modification on the grounds that the parent will be incarcerated soon. If a parent is incarcerated without having time to resolve financial affairs, it is still important to petition the court for a child support modification as soon as possible. Family members or friends can contact a child support attorney on behalf of the incarcerated parent, or the parent can contact an attorney from jail or prison.

In all cases, it is important to seek a modification as soon as possible to avoid the accrual of unnecessary interest. Any incarcerated parent will face a painful period of rebuilding his or her life upon release from jail or prison. Professional, social, and financial relationships must be renewed and rebuilt. The added burden of a large child support debt will only make this difficult process more burdensome. Luckily, this is an avoidable problem. With proactive strategy, the legal obligation to pay child support can be modified before large sums of interest accrue. This is an important step toward helping the parent rebuild his or her life at the end of incarceration.

Contact our Law Firm to Defend Your Legal Rights Regarding Child Support

If a parent is incarcerated and has the ability to pay child support, it's in the child's best interest for the that parent to continue to make child support payments. However, if a parent can't make child support payments due to incarceration, a non-custodial parent should consult with our lawyers to review alternatives. If you have a legal obligation to pay child support, you have legal rights that must be protected. It is especially important to protect these rights during a period of incarceration so that a parent has the opportunity to make a fresh start free of unnecessary financial burdens upon his or her release.

Our experienced Los Angeles divorce and family law attorneys will help fight for a fair resolution of all child support claims. Contact our law firm for a free case evaluation. Don't delay – interest can accrue until the court orders a child support modification. With the assistance of an experienced Los Angeles child support attorney, you can prevent a financial disaster.

Furman & Zavatsky LLP
Los Angeles Divorce and Family Law Attorneys
15821 Ventura Blvd #690 Encino, CA 91436

Related Resources:
Incarcerated Parents Manual
Child Support and Incarceration

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