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What happens if a parent that should pay child support is in jail?

 

Can the court order my child's other parent to pay child support if the other parent is in jail?

Yes, but the order does not have to follow the Child Support Guidelines if the other parent is in jail and is likely to remain in jail for three more years and does not have enough money to pay support.

If I am on welfare, and the Department of Revenue has the right to get child support for me, will they do it even if the other parent is in jail?

Yes. When you are on welfare, you give the right to collect child support to the Department of Revenue Child Support Enforcement Division. They will go ahead and get a child support order unless you have given them "good cause" not to. An example of "good cause'' is when the other parent has been violent to you. DOR treats cases where the other parent is in jail the same as other cases.

What if there already is a child support order, but the other parent goes to jail?

Going to jail does not automatically change a child support order. Only a judge can change (modify) a child support order. If a parent that is in jail has income or assets that can be used to pay for your child's support, he or she has to continue to pay child support.

If there already is a child support order, and the parent who was ordered to pay child support goes to jail (is incarcerated), the child support order does not automatically end. The order remains in effect until the court changes it (modifies it).

The incarcerated parent may be able to pay child support if he or she still has income or assets that could be used to support your child.

Remember

An incarcerated parent (in jail) may still have income or assets that he or she must use to support your child.

How can someone be in jail and still have income or assets that can be used to support a child?

Even though you are in jail, you might still have:

  • interest or dividend income from investments such as stocks or bonds
  • money from selling investment assets such as stocks or bonds.
  • rental income
  • disability, retirement, or other similar benefits.
  • bank accounts, retirement accounts, or other accounts which could be used to support the child
  • money from selling property (real estate, a vehicle, or other valuable property)

How do I enforce a child support order if the person who is supposed to pay child support is in jail?

You can file a contempt action in court. The court can hold a person in contempt of court for failing to pay a child support order even if he or she is in jail. The parent who is in jail must show that he or she cannot pay the support. An incarcerated parent may actually be able to pay the support. If the incarcerated parent claims inability to pay the child support, he or she will have to convince the judge. The judge will decide and can take into account other sources of child support described above.

Even if the judge decides that the other parent is not in contempt that does not automatically mean that the child support order ends. If the judge does not actually modify the child support order, the unpaid child support will continue to add up. Unpaid child support is called "arrears." The judge can later order the other parent to pay the arrears when he or she is able.


Produced by Massachusetts Law Reform Institute
Created July, 2009


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