Child support when a parent is incarcerated

A child support order doesn’t pause when a parent goes to jail or prison. In most states it keeps running at the same amount until a court or the state child support agency changes it, and every month that goes unpaid adds to a balance that is still owed after release. Federal rules give incarcerated parents a route to have the order reviewed, but in most cases someone has to ask.

This guide explains what happens to support during incarceration, the federal rules on reviews and voluntary unemployment, how to request a review, and how arrears and interest work after release. It is general information, not legal advice, and it applies to parents on either side of the order.

Does child support stop during incarceration?

In most states, no. The federal Office of Child Support Enforcement (OCSE) says in its guide to changing a child support order that orders may not be reduced automatically when a parent becomes incarcerated, even if the parent no longer has the ability to pay. A parent who waits until release still owes the full amount that built up in the meantime.

That follows from a federal rule that applies everywhere. Under 42 U.S.C. § 666(a)(9), each support payment becomes a judgment on the date it is due, and it can’t be modified retroactively. A court or agency can change payments from the date the other parent was notified of a request to modify, but not before. So the date of the request matters more than the date of the arrest or sentence.

Some states go further and change or suspend an order on incarceration by operation of law, without a separate request. Federal rules recognize this, but it is the exception. Unless the state agency confirms that your state works that way, treat the order as still running.

The federal rule: incarceration is not voluntary unemployment

When a court sets or changes support, it can sometimes treat a parent as earning more than they do, usually because it finds the parent chose not to work. That is called imputed income. For years, some states treated incarceration the same way, on the theory that the parent caused the loss of income, and refused to lower orders for parents in prison.

A federal rule published in 2016 ended that approach. Under 45 CFR 302.56(c)(3), every state’s guidelines must provide that incarceration may not be treated as voluntary unemployment when an order is set or modified. The same regulation requires any imputation to consider the parent’s specific circumstances, including criminal record and other barriers to employment. And under 45 CFR 303.8(c), the threshold a state uses to decide whether an order differs enough to change may not exclude incarceration as a basis for adjustment.

The rule doesn’t mean support drops to zero. A court can still look at income or assets the parent has while incarcerated, such as rental income, investments or benefits, and state guidelines may set a minimum order. What it does mean is that the loss of wages from being incarcerated can be taken into account like any other loss of income.

States put this into their own law in different ways. Vermont, for example, treats incarceration for more than 90 days as a real, substantial and unanticipated change of circumstances, unless the incarceration is for failure to pay child support, and lets its Office of Child Support file a motion to modify on its own (Vermont Statutes Title 15, § 660).

Reviews and notices for incarcerated parents

When the state child support agency enforces an order, federal rules give it two options once it learns that a paying parent will be incarcerated for more than 180 calendar days. Under 45 CFR 303.8(b)(2), a state may choose to start a review on its own, without a request, after notifying both parents. A state that doesn’t make that choice must, under 45 CFR 303.8(b)(7)(ii), notify both parents within 15 business days that they have the right to request a review. The notice has to say where and how to make the request. Neither the notice nor the review is required in a state whose law already modifies orders on incarceration.

Two points follow. First, the notice is not a review. In a state that sends notices, nothing changes until a parent responds and asks. Second, the rule depends on the agency learning about the incarceration, which doesn’t always happen quickly, and it applies only to orders the agency enforces. A parent with a private order that the agency doesn’t handle may need to go to court instead.

Once the agency has a request, it generally must finish the review and either adjust the order or decide not to within 180 calendar days (45 CFR 303.8(e)). The review applies the state’s guidelines to the parents’ current circumstances, so the result can be a lower order, no change, or in some cases a different amount for health care. The guide on how to modify child support covers each state’s threshold for a change and how court motions work.

How to ask for a review from jail or prison

The most important step is to ask early. A request made in the first weeks of a sentence can limit how much builds up; one made a year in can’t undo that year. Practical steps:

• Contact the state child support agency that handles the case. The federal directory of state and tribal child support agencies links every program, and the OCSE map of how to change a child support order in each state links each state’s modification page.
• Give the agency the facts it needs. That usually means the case or docket number, the facility, the expected release date and any income or assets.
• Use the facility’s staff. OCSE’s incarcerated parents and reentry page notes that federal prisons have Reentry Affairs Coordinators who can help, and it encourages state agencies to offer modification forms and help at sentencing, intake and before release.
• Keep copies. A dated copy of the request helps show when notice was given, which can set the earliest date a change can reach back to.

The receiving parent can also respond to a review or request one. A review applies the guidelines to both parents’ circumstances, and the agency or court decides the outcome, not either parent alone.

For people in federal prison, the OCSE guide explains that the Bureau of Prisons’ Inmate Financial Responsibility Program can include a child support obligation in an inmate’s financial plan, once staff have a copy of the order or a letter from the state agency. Payments under that plan generally come after special assessments, restitution, fines and court costs.

Arrears and interest after release

Any support that went unpaid before a change took effect stays owed after release, and in many states it carries interest. Here is how quickly it can add up. Suppose an order of $400 a month goes unpaid for a full year. The principal by the end of that year is $4,800. In Missouri, which charges 12% a year, interest adds $264. In Texas, at 6% and only on the unpaid amount above one month’s payment, interest adds $100. Some states charge no interest at all.

Arrears also bring enforcement tools, such as income withholding from a new job, tax refund offset, license suspension and passport denial, which the guide to child support enforcement covers. After release, a parent can ask the agency about a payment plan, and where arrears are owed to the state, some states run programs that reduce the balance in exchange for regular payments. The guide to back child support and arrears has the state-by-state interest table, and the arrears and interest calculator estimates a balance with your state’s rule. The agency’s payment records decide the official balance.

Reentry: getting back on track

Release is often the right time for another review. An order lowered during incarceration may stay at that level until someone asks for a change, and a parent who finds work may need it reviewed again, in either direction. A parent who has not found work yet should tell the agency, because imputation rules still apply after release. In Washington, for example, when income has to be imputed and there are no records of actual earnings, the presumption for a parent recently released from incarceration is 32 hours a week at the local minimum wage, which the parent can rebut and which ranks below full-time earnings at a current, past or historical rate of pay (Wash. Rev. Code § 26.19.071).

To see what a new order might look like, use the guidelines with the parents’ current incomes. In Texas, for one child, if the paying parent earns $25,000 a year after release and the receiving parent earns $40,000, the guideline amount is about $370 a month. The modification calculator compares an existing order with today’s guideline amount, and the child support calculator gives an estimate for any state. These are estimates, not a prediction of any order: courts can deviate from the guidelines.

For help beyond child support, official sources are a good starting point. The Federal Bureau of Prisons describes its release preparation and reentry programs, and the OCSE reentry page links federal resources on housing, health coverage and employment. Local child support offices and state corrections departments often run reentry or fatherhood programs too, and the state agency can say what is offered where the case is.