What happens to Child Support when the Payor is in Jail?

Incarceration Leads to a Suspension of Enforcement of Child Support

Questions regarding child support obligations and enforcement of those obligations often arise when a family is in crisis. This is certainly the case when a child support payer is sentenced to a jail term.  Obviously, a parent who is been incarcerated can not earn money to pay child support obligation.  Some have argued that somebody who committed a crime did so voluntarily and the inability to earn money is a “voluntary” reduction in income.  The other side of the argument is that no one would willfully go to jail to avoid making money and ultimately paying child support obligation.

The unfortunate reality is that during a child support obligor’s incarceration the child will suffer and will not be receiving support from his or her parent who is sitting in a jail cell. Clearly, the child has needs irrespective of the jail term or inability of a parent to earn money.

The court balanced the competing interests that arise when a child support payor goes to jail in its decision Halliwell vs Halliwell. The court took the approach that the child support obligation should be suspended and reestablished once the incarcerated parent is released from prison.  The court held,

“Suspending the payment of support and postponing a decision as to future support eliminates the accrual of arrears, yet does not reward the criminal who is fully apprised that upon release the support obligation will be reinstated and, based upon his ability to pay, he will be required to pay an arrearage which will be established commensurate with his income.”

For many this is a “half a loaf” solution to a difficult problem. On the one hand, an undetermined child support obligation continues to accrue, but on the other hand the child is not receiving the support in a timely manner. The parent who is entitled to the child support must wait until after the other parent is released from prison and then attempt to collect upon and undetermined arrears that is based upon the obligor’s current ability to earn income. Given the fact that many people who are released from prison do not have very much in the way of assets or very bright employment or income prospects,this result can feel very hollow.  The  Halliwell court required a formal evaluation of the obligor’s ability to pay upon release from prison.

“At such time as defendant is paroled or released…, he will be required to appear before the Family Part to file a case information statement predicated upon his then current income and will be required to pay child support and reduce the accumulated arrearage.

If you or a loved one have questions regarding child support payments when one of the parents is in jail, contact the New Jersey child support attorneys at DeMichele and DeMichele.  Your confidential, initial consultation is only a click or call away.  Call now (856) 546-1350