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Can You Still Receive Child Support Payments if Your Ex is in Jail?

By Sarah Jacobs, Esq.

If your child’s other parent is in jail or prison and you are separated, divorced, or no longer involved with them, this can significantly alter their ability to pay regular child support. 

This circumstance raises the question: do they still owe child support payments, and what could that look like for your family? 

Child support obligation of a parent in prison

According to New Jersey law, both parents of a child are obligated to financially support their child until they are emancipated or turn the age of 19 (with the potential to extend child support until the maximum age of 23 unless exigent circumstances exist).

A parent’s obligation to pay child support does not automatically end when incarcerated. An incarcerated parent is still expected to pay the full amount of child support payments—and if they do not pay child support on time, they may accrue arrears in child support back payment. Accruing arrears may lead to a number of other consequences that affect a person’s quality of life once they are no longer incarcerated. 

However, if your former partner is placed in jail or sentenced to time in prison, it will most likely reduce their income, and subsequently may reduce their ability to pay the previously agreed upon child support.  

The effect of prison on income and assets

If a parent is incarcerated, their income may be drastically reduced. State minimum wages do not apply to incarcerated individuals, and the average hourly wage for incarcerated persons in New Jersey varies between just $0.26 and $2.00 per hour before taxes and deductions. 

With this in mind, incarcerated parents may not earn enough to pay full child support, even though they are still required to do so. In most cases, incarcerated parents with child support are expected to use their savings or additional assets, such as a retirement account or real estate, to cover child support costs during their time in jail. 

If an incarcerated parent wants to reduce their child support payment obligation, they will need to request a child support modification from the court. 

Child support modifications during incarceration

All parents have the right to seek a child support modification if their circumstances significantly change. A 2016 federal ruling states that incarcerated parents have the ability to ask the court to review and potentially modify their child support order during the incarceration period.

That being said, parents who are incarcerated do not automatically receive a modified child support order. To be considered for a child support modification, parents must submit a child support modification application. At this point, the court will review the details of the family’s circumstances and determine if a child support modification is appropriate during the period of incarceration. 

If a parent does receive a modified child support order, it is important to note that child support modification is generally not retroactive to the date of incarceration (but may be to the date of filing) and it will not reduce any arrears already owed by the incarcerated parent except if there were arrears accumulated incorrectly following the date the modification is effective.   

Is child support enforceable against parents who are incarcerated?

If an incarcerated parent is unwilling or unable to pay child support, the parent receiving the payments can work with an experienced child support attorney and the courts to seek enforcement of the incarcerated parent’s support obligation. 

Similar to a non-incarcerated parent’s refusal to pay child support, an incarcerated parent can face a number of court measures that can impact them in the future once released from jail, such as:

  • Withheld income: once the incarcerated parent is released and finds employment, the court can send a notice to their employer, who will then implement any ongoing deductions from that parent’s paycheck as calculated by the court. The funds would then be sent to New Jersey’s Family Support Center for distribution until any child support debts are satisfied.
  • Suspension of a driver’s license or other professional licenses: the court may suspend, revoke, or deny any driving, professional, occupational, or recreational licenses.
  • Interception of a tax refund: the state may redirect a party’s state or federal tax return to pay a child support order.
  • Suspension of passport renewal and application privileges: if an account reaches $2,500 in arrears or more, the parent will be unable to renew or apply for a passport.
  • Credit reporting: once an account has at least $1,000 in arrears, a parent’s failure to pay will be reported to credit reporting agencies.
  • Seizure of assets: if the non-custodial parent demonstrates a refusal to pay child support, then the Department of Human Services may be able to seize any assets in the bank, or whatever a party holds in stocks or bonds. 

Ensure prompt and consistent child support with the help of Jacobs Berger

A parent’s incarceration can add significant stress and uncertainty for any family. A child support attorney can help navigate the process and guide your family through any factors that may arise.

If your ex has been recently incarcerated or if you are an incarcerated parent seeking modification of your current child support obligation, contact our team to coordinate your strategic planning session and determine the best path forward for your family.

Contact Our Morristown Attorneys Today

At Jacobs Berger, our attorneys are experienced in protecting our clients across Madison, Randolph, Tewksbury, Morristown, and the greater Morris County area in all family law-related issues.

To schedule a strategic planning session with one of our experienced team members regarding your particular case, please contact us online or through our Morristown, NJ office at (973) 354-4506.