When a parent is about to be or has been ordered child support and the paying parent is or is about to be incarcerated, then what? This is a common occurrence in divorce and paternity cases and like many things in family law, the answer depends on the facts of each case. There is a distinction in the case law between setting child support and supplemental petitions to modify child support.
There is a split in the districts as to whether child support can be set during incarceration. The answer differs when if the person paying child support lives in Gainesville or Ocala. The First District, which includes Gainesville and the rest of the Eighth Circuit has held that when setting child support, imputing income to an incarcerated parent is inappropriate. The First District contains the 1st, 2nd, 3rd, 4th, 8th and 14th Circuits) However, the Fifth District encompassing Ocala and the Fifth Circuit had held that does not serve to protect the child’s rights in their support and imputing income is appropriate. Both Districts have certified conflicts with each other but there has not been a resolving opinion as of the typing of this blog.
The Florida Supreme Court resolved the conflict regarding modifications of child support already ordered by establishing a procedure to deal with the problem. First, upon the filing of a Supplemental Petition for Modification of Child Support by an incarcerated parent the arrearages no longer are vested to the recipient. Therefore, a Petition should be filed as soon as possible, since money owed prior to the filing of the action to modify are vested and cannot be changed by the Court. Then, the trial is to place the petition in abeyance until the obligor parent’s release. Once the parent is released from incarceration, the trial court would hear the modification petition, taking into account numerous factors, including any additional considerations even taking into consideration if the crime was motivated to evade a child support obligation. The Supreme Court of Florida also specifically rejected a per se rule that would permit incarceration to be utilized as a basis to modify support, calling that “tantamount to authorizing a suspension or abatement” which they did not want.
Issues in family cases including child support can be much more complex than just using the formula to calculate support. A lawyer can assist in the process. We do charge a consultation fee in family cases, that means that we could never consult with the opposing party on the same issues and will perform a conflict check prior to setting a consultation. To get the process started, please click, call or fill out the form.