In the United States, only one in five children live in households receiving child support payments. Census data from 2017 showed that the 5.4 million parents who were owed child support payments received an average of 62% of the amount they were supposed to get.
From these figures, there’s a good chance that some individuals required to pay for child support may not have paid their obligations or are behind on their payments.
If you’re one of these delinquent parents, can you go to jail for nonpayment? If you’re in prison, can you still pay for child support? Will the court modify your support order if your financial citation has changed?
This article discusses what can happen if you fail to pay for child support and what you can do if you get charged with contempt for not following the court’s orders.
This article also discusses how you can modify your child support order and how child support laws vary in each U.S. state.
If you have a loved one in jail because they failed to pay for child support, you can search for them using LookUpInmate.org’s online lookup tool and access more than 7,000 U.S. correctional facilities in one place.
Can You Go to Jail for Not Paying Child Support?
Depending on your circumstances and the state where you live, going to jail for failing to pay child support is possible.
Some states can imprison nonpayers. If you pay a bond to get them out of jail, that payment can go toward their child support obligation.
Poor Parents Who Fail to Pay Child Support Go to Jail
Child support is a pressing issue in the United States and mainly impacts poor people. According to 2013 data, 76% of parents with past due child support obligations earned only $10,000 or less yearly. Meanwhile, custodial parents receiving child support have a 28.8% poverty rate.
Many impoverished parents repeatedly go to jail for child support debt because they’re poor. In some cases when the inmate gets released, the court can give them three months to pay a large sum. But when they still can’t do so, they’re put back in jail.
One solution to help address this issue is the federal Child Support Enforcement (CSE) program, enacted into law in 1975. The purpose of the CSE is to secure financial support for children from noncustodial parents to help strengthen families while keeping some families off public assistance.
What to Do if You Fall Behind on Child Support Payments
Suppose you’re paying for your child support obligations but fall behind in your monthly payments due to employment and health issues. You have a few actions to try and prevent being held in contempt and serving a jail sentence.
First, don’t assume it’s acceptable to pay nothing toward your child support obligation just because you can’t fulfill your responsibility.
A judge will look into your family law case more favorably if they see you making an effort in good faith to pay your obligation monthly.
Second, file a motion to modify child support if your employment circumstances have changed. Remember that the court won’t reduce a child support order until you file a motion.
If you don’t do so, your backlog payments will pile up, and you may find yourself with a large number of arrears that you may end up in jail.
Third, maintain contact with your caseworker (who provides advocacy services, information, and solutions) and update them on your situation, such as work, address, and phone number changes.
Incarcerated for Failure to Pay Child Support
State legislatures have laws focusing on noncustodial parents who do not or are unable to pay child support. If you’re one of these parents, you can cross the criminal justice system in two ways:
- Noncompliance of a noncustodial parent with a child support obligation: This leads to short-term incarceration, primarily in a local jail, due to a civil contempt or criminal nonsupport action.
- Incarceration of a noncustodial parent for a criminal offense and with current or delinquent child support obligation: This leads to long-term imprisonment in a state or federal prison.
Civil contempt occurs when you don’t comply with your court-ordered child support. Conditions for civil contempt can vary by state.
For example, in Washington, District of Columbia (D.C.), the court can order the noncustodial parent (NCP) to:
- Pay a lump sum
- Provide scheduled payments
- Go to prison
If you willfully don’t pay your child support order, the court can find you in criminal contempt. Your penalties include any of the following:
- Go to jail for a period not exceeding 180 days.
- Participate in a rehabilitative program.
- Accept available and appropriate employment or participate in job search and placement activities.
- Undergo probation.
- Participate in other actions the court orders.
Incarcerated With a Child Support Order
If you’re incarcerated and have a child support order, you have the option to modify your order according to your situation.
The following sections discuss how you can modify the court order and what barriers can keep you from making changes.
Modification of a Child Support Order
Modification requires you to have proof of a substantial and material change in your circumstances. Examples of such changes are incarceration, unemployment, or underemployment.
Barriers to Modification
Modification to your child support order doesn’t always go smoothly. Some barriers to making such changes are:
- Limited communication with child support enforcement agencies
- Unfamiliarity with the modification processes and options
Federal Rule on Child Support
In December 2016, the federal CSE office published a rule updating the child support enforcement policies that the CSE further revised in 2020.
These rules help increase the effectiveness of the child support system for all families and provide state child support programs with more flexibility. Also, these rules help improve the efficiency of child support processes by removing barriers like requiring written signatures and paper documents.
While these provisions are optional and don’t require state legislation in most states, these rules allow state legislators to clarify child support enforcement laws.
Can You Get Child Support From Someone in Jail?
What happens if your child’s other parent is serving jail time? Can that parent still provide child support? The following sections address these questions.
Can the Court Order Your Child’s Other Parent to Pay Child Support While the Other Parent Is in Jail?
Yes, the court can require the jailed parent to pay for child support. However, if that parent doesn’t have enough assets or income to pay, the judge doesn’t have to order them to pay the amount indicated in the Child Support Guidelines.
If You Are on Welfare, and the Department of Revenue Has the Right to Get Child Support for You, Will They Do It Even if the Other Parent Is in Jail?
Yes, you can give your right to collect child support to the Department of Revenue’s CSE division when you’re on welfare and the child’s other parent is in jail.
For example, the CSE of Massachusetts’ Department of Revenue can get a child support order unless you give them good cause not to do so. One example of such a cause is when the other parent has a history of violence toward you.
What Happens in the Event of an Existing Child Support Order When the Other Parent Is Incarcerated?
Going to jail doesn’t automatically change a child support order’s status. A parent in jail who has income or assets that can pay for your child’s support must continue paying it unless a judge modifies the order.
If a child support order is already in place and the parent paying it goes to jail later, the order remains effective until the court modifies it.
How Do You Enforce a Child Support Order if the Person Who Is Supposed to Pay Child Support Is in Jail?
The court can hold a person in contempt if they fail to pay a child support order even if they’re in jail. If the incarcerated parent claims inability to pay for the support, they must convince the judge, who will decide whether to let the incarcerated parent continue paying.
Do You Have to Pay Child Support if You Get Sick?
If you are behind in child support payments because you’re not working due to a medical issue, ensure to get documentation from your doctor or the hospital giving you the treatment. Your caseworker and the judge must see such proof to justify why you’re not paying child support.
Incarceration for Failure to Pay Child Support
Suppose you’re a parent who fails to pay child support. You can face legal penalties like civil contempt of court, criminal charges, and incarceration. The following sections discuss these penalties.
All 50 states, the District of Columbia (D.C.), and American Samoa have criminal prosecution processes for individuals who fail to pay the specified amount of child support.
Depending on state law and how much money you owe, failure to pay can lead to a misdemeanor or felony. Penalties like prison sentences and fines can also vary by state.
Some states also consider whether the person paying knowingly and purposefully chooses not to pay.
Civil contempt proceedings can help encourage compliance with court orders rather than punish the defendant. In a child support case, civil contempt incentivizes the defendant, also known as the obligor, to comply with the court order.
Fair Child Support Orders
Aside from diversion and employment programs, states also look at ways to ensure that the calculations for child support obligations depend on the noncustodial parent’s ability to pay.
State efforts to establish orders reflecting a parent’s current earnings can help promote the regular support payment and reduce the likelihood of falling behind on payments and accruing debt.
Contempt of Court for Failure to Pay Court-Ordered Child Support
Contempt of court is the failure to obey a court order. If you have unpaid child support, the other parent can request that a judge hold you in contempt.
The court will serve you with a document ordering you to attend the hearing, during which you must explain why you haven’t paid the support you owe. If you don’t attend, the court can issue an arrest warrant.
Possible Outcomes at a Contempt of Court Hearing
Judges rarely put parents in jail for contempt of court. However, the judge can still put you in jail or order you to make future payments and set up a payment schedule to pay any unpaid support.
The court won’t reduce the amount of your unpaid support, and they can’t modify your child support arrears retroactively. However, the judge can decrease your future payments.
The judge can also order the withholding of your wages, the placement of a lien (a right to keep possession) on your property, or the posting of a bond or other assets.
Incarcerated With Child Support Orders
Another category of incarcerated noncustodial parents are those imprisoned for crimes not involving child support or for having delinquent child support orders, or both.
Such crimes can go into one’s criminal record. LookUpInmate.org is a one-stop online records checker that lets you search for jail records, mugshots, and judicial reports of incarcerated individuals.
Modifications During Incarceration
At least 11 states have statutes establishing exceptions when noncustodial parents are still required to provide child support payments while incarcerated.
The sections below discuss state-specific legislation regarding child support modification for incarcerated parents.
The Alabama Rules of Judicial Administration (ARJA) Rule 32 for child support has the following modifications:
- The provisions of any child support judgment shall be modified only to installments accruing after filing the modification petition.
- A party requesting a child support modification must prove that a continuing and substantial material change in circumstances has occurred since the last child support order.
According to the Arkansas Code § 9-14-107, a change in the payor or payee parent’s gross income equal to or more than 20% constitutes a material change sufficient to petition for a child support modification.
However, when determining a reasonable amount of support initially or upon review, the court shall not consider a parent’s incarceration as voluntary unemployment.
California’s Family Code § 4007.5 has the following rules for individuals incarcerated with child support orders:
- Every money judgment or order for child support shall be suspended for a period exceeding 90 consecutive days in which the person paying support is involuntarily institutionalized or incarcerated unless any of the following conditions exist:
- The person owing support can pay while involuntarily institutionalized or incarcerated.
- The person owing support was incarcerated or involuntarily institutionalized for:
- Domestic violence against the supported child or party
- An offense enjoined by a protective order
- Failure of the person to comply with a court order to pay child support
Section 46b-215e of Connecticut’s general statutes state that a child support obligor (the person bound by contract) incarcerated for more than 90 days can have their support orders changed to $0 in certain support cases.
This change takes effect when the support enforcement officer files an affidavit to the family support magistrate division.
Rule 506 of Delaware’s Family Court Rules of Civil Procedure provides the following details for automatic adjustment for incarceration:
- After 180 days of continuous incarceration, prospective support obligations created or modified after January 31, 2019, will automatically decrease to one-half of the minimum order amount.
- Incarcerated parents subject to current child support orders issued before February 1, 2019, can still petition for modification.
District of Columbia
The D.C. Code § 16–916.01 states that the presumption that the parent can pay the minimum for child support can be reduced to $0 or increased above $75 monthly based on the parent’s circumstances or evidence of resources affecting the parent’s ability to pay.
These circumstances include:
- Inpatient substance abuse treatment
- Inpatient treatment
- Housing expenses
- Receipt or provision of in-kind resources or services
- Benefits from means-tested public assistance programs
- Other public benefits
- Tax credits
Incarceration in Florida may not be treated as voluntary unemployment when creating or modifying a support order except for willful nonpayment of child support or an offense against the child being supported.
Georgia Code § 19-6-15 states that the court or jury shall determine the reasons for the parent’s occupational choices when deciding whether a parent is willfully or voluntarily unemployed or underemployed.
A determination of voluntary or willful unemployment or underemployment depends on the choices motivated by the parent’s intent to reduce or avoid the child support payment and any intentional act affecting the parent’s income.
In Colorado, child support is calculated based on the parent’s potential income if they are voluntarily unemployed or underemployed. Some exceptions to this rule are as follows:
- The parent is physically or mentally incapacitated.
- The parent is caring for a child under 24 months for whom the parents have a joint legal responsibility.
- The incarcerated parent is sentenced to 180 days or more.
In Illinois, parents with no gross income, who receive means-tested assistance only, or who can’t work due to incarceration, institutionalization, or a medical disability, the $40 monthly minimum support order will not apply. Instead, the court will enter a zero-dollar order.
Indiana law states that the court can modify the child support order or approve a modification proposal without a hearing if:
- You file a petition to modify a child support order based on a party’s incarceration.
- No party files any objection or hearing request within 30 days of receiving notice.
In Louisiana, the court must suspend a child support order when the obligor is sentenced to or incarcerated for 180 consecutive days or more with or without hard labor.
In Maine, the court shall consider anticipated child care and other work-related costs when determining how much potential income the person can provide to support primary care to a child aged 24 months to 12 years.
Maryland’s family law states that a child support payment isn’t past due and arrearages may not accrue during the period the obligor is incarcerated and for 60 days after their release if:
- The court sentences the obligor to imprisonment for 180 consecutive days or more.
- The obligor has insufficient resources with which to make payment and is not on work release.
- The obligor didn’t commit the crime intending to be incarcerated or impoverished.
Child support guidelines in Massachusetts mention that when the payor has no assets or income to pay for child support, the court cannot attribute income to the payor based on their prior earning capacity, even if the payor is in prison due to a crime against the child being supported.
According to the Minnesota statute § 518A.32, if a parent has no evidence of income or is voluntarily unemployed, underemployed, or employed on a less than full-time basis, the court must calculate their child support payments based on potential income.
Michigan law specifies that courts can review orders to check if there are reasonable grounds to believe the amount of child support should be modified. Reasonable grounds for review include incarceration or release from imprisonment following a conviction and sentencing to a term exceeding one year.
According to Mississippi’s Code of Federal Regulations (CFR) Title 45 § 303.8, the state can elect to review an order after knowing that a noncustodial parent will be imprisoned for more than 180 days without needing a specific request. The court can adjust the order after notifying both parents.
In Nebraska, the state’s Department of Health and Human Services shall notify the parents through first-class mail, informing them of their right to request a review and order adjustment.
The notification must come within 15 business days of learning that a noncustodial parent will be incarcerated for over 180 days.
According to New Jersey’s directives, if the obligor’s responses convince the court that the support order’s modification is appropriate, the court can perform the following:
- Recommend the obligor to file a motion for a support modification.
- Arrange for a hearing to help address relevant changes in circumstances.
New Mexico statutes regarding child support state that the court cannot impute or assign income to a parent incarcerated for 180 days or longer. Furthermore, the state doesn’t consider incarceration as voluntary unemployment.
Courts in New York determine whether a parent has reduced resources or income to lower or avoid child support obligation, provided that the incarceration isn’t voluntary unemployment unless due to a child support order nonpayment or an offense against the child or parent with child custody.
In North Carolina, a child support payment isn’t past due, and no arrearage accrues when that the person providing the support is in prison, isn’t on work release, and has no resources to pay.
North Dakota law states that a monthly support obligation in effect after December 31, 2017, expires upon the obligor’s incarceration under a sentence of 180 days or more, excluding credit for time served before sentencing.
In Ohio, when a court or agency calculates the parent’s income, that court or agency shall not determine the parent to be voluntarily unemployed or underemployed and shall not assign payment to an incarcerated parent.
The Oklahoma child support statutes mention that courts can modify child support orders upon a material change in the parent’s circumstances, including incarceration for more than 180 consecutive days.
Child support laws in Oregon specify that an obligor incarcerated for 180 consecutive days or more shall be presumed unable to pay child support. Also, the obligor’s child support obligation doesn’t accrue during incarceration unless the court rebuts the presumption.
In Pennsylvania, the Supreme Court shall establish procedures to notify interested parties of all proceedings that can help establish or modify support obligations. These parties shall receive a copy of any issued order within 14 days after issuance.
When the child support services office of Rhode Island’s human services department becomes aware that the noncustodial parent is or will be incarcerated for 180 or more days, the department can automatically file a motion to modify the child support order.
In South Dakota, the court can consider a deviation from the child support order schedule according to the entry of specific findings based on the parent’s voluntary and unreasonable acts that cause the parent to be unemployed or underemployed.
Texas courts can modify an order providing child support if the circumstances of the child affected by this order have materially and substantially changed.
Incarceration of a child support obligor in a federal, state, or local jail or prison for more than 180 days is a material and substantial change of circumstances.
In Utah, an individual incarcerated for at least six months may not be considered voluntarily unemployed when establishing or modifying a support order.
Vermont law on child support mentions that on motion of either parent, the child support office, other persons previously granted or charged support, and upon showing a substantial, unanticipated change of circumstances, the court can modify, annul, or vary a child support order.
Washington law on child support provides a rebuttable presumption that an incarcerated person cannot pay the child support obligation if the child support order contains language providing for reduction based on the imprisonment of the person paying support.
If the child support order does not contain such language, the person required to pay support, the payee under the order, or the person receiving support can commence an action to:
- Modify the support order to contain abatement (reduction) language.
- Abate the person’s child support obligation due to imprisonment for at least six months.
In West Virginia, parties can request assistance by submitting a written request form to the Bureau for Child Support Enforcement. This form must include all the requesting party’s relevant information to determine the child support amount.
After getting notified of an obligor’s incarceration in a regional, state, or federal correctional facility, the Bureau shall determine whether the expected incarceration period will exceed six months.
If the period exceeds six months, the Bureau shall file a petition for a child support modification.
State Programs Addressing Incarceration and Child Support
Different states have several programs that address incarceration and child support.
In Illinois, the Paternity Establishment Prison Program helps noncustodial parents establish paternity while incarcerated through voluntary acknowledgment or genetic paternity testing.
Meanwhile, South Carolina has a “Jobs not Jails” program that allows family court judges to enroll unemployed or underemployed noncustodial parents in a comprehensive parenthood program.
Child support policies have shifted since 2011, with subsequent rulemaking within the federal CSE office in 2016. Since then, courts have extensively considered the families’ needs and the unintended consequences and costs of parental incarceration when deciding on child support orders.
Policy Questions to Consider
Some questions you can consider when tackling the issue of child support and incarceration in your state are as follows:
- How many noncustodial parents are in jail for failing to pay child support?
- What policies or programs can help maximize child support payment while improving the parents’ access to employment and diversion programs?
- What is the cost of incarceration in county jails?
- What judicial or administrative processes exist to modify child support if a noncustodial parent gets incarcerated?
- Will interest and debt on child support accrue while the parent is in prison?
U.S. Efforts to Prevent Unpaid Child Support
Efforts in the U.S. to help minimize or prevent unpaid child support vary by state. For example, Florida-based parents can register their child support orders with the state disbursement unit that facilitates payments and provides enforcement actions if payments are not made.
In some states, child support payments can come from wage garnishments, a form of collection that automatically deducts the support payment from the payor’s paycheck.
You can also have your tax refund withheld and your state-based lottery winnings deducted to pay for child support.
Don’t Be Found in Contempt of Court: Request a Modification
To help you prevent facing the difficulty of being found in contempt of court, take action to avoid these harsh punishments beforehand.
For example, if you struggle to pay your child support in full, consider filing a modification request for your support order and gathering the necessary proof that you’re eligible for such changes.
How to Avoid Jail for Unpaid Child Support
Suppose you have unpaid child support, and someone charges you with contempt. You can avoid jail by attending the contempt of court hearing and showing that you didn’t deliberately disobey the order to pay child support.
Prepare your evidence to help convince the judge that you’re not irresponsible.
First, show why you didn’t pay. If you couldn’t pay because you didn’t have work, get a sworn statement from your last employer stating why you left.
Next, explain why you didn’t request a modification hearing when you knew you couldn’t meet your support obligation. For example, you may have been sick, injured, or depressed. Ensure to get sworn statements from the medical professionals who treated you.
If you do these things and provide convincing evidence to the judge, you may have a better chance of avoiding jail.
Also, consider working with a family law attorney from a reputable law firm to help you build a strong defense for your case.
Steps for Modifying Child Support in the U.S.
If your circumstances make it difficult, if not impossible, to pay your child support while maintaining financial stability, a judge may grant a modification to help lower your support obligation.
First, request for a review. Depending on who ordered you to pay for child support, your request can go through the circuit court (intermediate-level courts in the U.S. federal court system) or a child support program.
If your request is approved, the reviewer will evaluate your situation, including your income and any changes. The reviewer will also consider your potential earnings and whether you have injuries that can affect your ability to work.
Child Support Obligations
Child support is a legal obligation that a biological parent has to provide for the basic living expenses of a child, such as food, clothing, shelter, healthcare, and education. It is a noncustodial parent’s financial obligation to make monthly or periodic payments to a custodial parent.
How Someone in Jail Can Still Have Income or Assets
Depending on the charges you’ve been convicted of and the details of your sentence, you may still access your assets and income. In most cases, your money will remain in your bank account.
Some assets or income you may have even when in jail are as follows:
- Dividend or interest income from investment assets like stocks or bonds
- Money from selling investment assets
- Rental income
- Bank accounts and retirement accounts that may support the child
- Money from selling property like vehicles or real estate
- Disability, retirement, or other similar benefits
Refusing to Pay Child Support
Suppose you’re one of those people who refuse to pay your child support obligation despite being able to do so. A judge will likely not tolerate disregarding your responsibility to care for your child or children.
In this case, you have at least two choices: prepare to go to jail or go to court to pay for your outstanding arrears.
What Is the Maximum Duration of Imprisonment for Nonpayment of Child Support?
Title 18 Section 228 of the United States Code makes it illegal to willfully fail to pay child support under specific circumstances. Violating this law is a criminal misdemeanor, and convicted offenders face jail time of up to six months.
If you intentionally refuse to pay the court-ordered child support for a child living in another state, you can be subject to federal prosecution. This penalty also applies if your payment is past due for over one year or exceeds $5,000.
If you have difficulty paying your child support obligations, contact a lawyer well-versed in child support matters. Some law firms provide free consultations for your convenience.
Visit LookUpInmate.org for more information about child support, incarceration, other crime-related topics, and the U.S. justice system.
1. How much child support do parents actually receive?
2. Child Support and Incarceration
3. Civil and Criminal Contempt
4. § 16–916.01. Child Support Guideline
5. Sec. 505. Child support; contempt; penalties.
6. Chapter 63: CHILD SUPPORT GUIDELINES
7. 518A.32 POTENTIAL INCOME
8. 45 CFR § 303.8 – Review and adjustment of child support orders.
9. § 4352. Continuing jurisdiction over support orders
10. § 15-5-16.2. Child support.
11. Title 15 : Domestic Relations Chapter 011 : Annulment And Divorce Subchapter 003A : Child Custody And Support
12. §48-18-202. Request for assistance by party.
13. CITIZEN’S GUIDE TO U.S. FEDERAL LAW ON CHILD SUPPORT ENFORCEMENT