A Case Study: Stopping Child Support While Incarcerated
By Sara Pitcher
Cordell & Cordell Noblesville, Indiana Divorce Lawyer
Incarceration may be grounds for modifying your child support obligation. Your modified child support obligation would likely be based on your actual income while you are incarcerated, including any funds available to you for paying support.
The Indiana Supreme Court case of Lambert v. Lambert stated that the father’s pre-incarceration income could not be imputed to him for the purposes of calculating his child support obligation for the period of time during which he was to be incarcerated.
The case also stated, however, that pre-incarceration income may be imputed to an individual for the purposes of calculating their child support obligation following incarceration. The burden is on the previously incarcerated individual to establish that their earning capacity has been diminished following incarceration.
Incarceration does not relieve parents of their child support obligations. However, a parent’s child support obligation should be based on actual income and assets available to the parent during incarceration.
The court in Lambert stated, “adopting a system that considers incarceration an absolute justification for the reduction or suspension of child support appears inconsistent with the policy embedded in Indiana’s statutes.”
The court found that incarceration, often the result of a voluntary criminal activity, is not the same as voluntary under-employment or unemployment as covered by the Indiana Child Support Guidelines, however.
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Child support for an incarcerated parent will likely be based on the actual income and resources available to the incarcerated parent. The burden is on the parent facing incarceration to seek a modification of child support. The incarcerated parent should also be prepared to pay an increased amount of support upon release.
To modify a child support obligation, the parent must petition the court and show a substantial and continuing change in circumstances that makes the present child support order unreasonable or that the amount of support ordered at least 12 months earlier differs from the Guideline amount by more than 20 percent, at least in Indiana.
A change in circumstances may include a change in the income of the parents, the application of a parenting plan, the failure to comply with a parenting plan, or a change in the expense of childcare.
Your best recourse would be to seek out immediate legal assistance from an attorney who focuses on domestic litigation, such as the divorce lawyers for men at Cordell & Cordell.