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Change to Child Support Law for Incarcerated Individuals

IncarcerationThe Virginia legislature has made a significant change to Virginia Code § 20-108.1 concerning child support and when the court may find a party to an action is either voluntarily unemployed or underemployed. The change also affects what constitutes a material change in circumstances warranting a modification of a party’s child support obligation. The new law will protect an incarcerated party from a ruling that he or she is voluntarily unemployed or voluntarily underemployed as a result of the incarceration. The law will additionally allow the incarcerated party to petition for a change in an ordered child support obligation by citing the incarceration as a material change in circumstances.

No Imputation Based on Incarceration

Under the current child support statute, when the court determines each parent’s income level for a final child support amount, the court may impute income to a party if it finds that party is voluntarily underemployed or voluntarily unemployed. This means the court may determine that a party is not earning as much as they reasonably could and then base a child support award on the imputed income.

As an example, if a party were earning $75,000 per year with a company and then quit to take a job paying $30,000 per year, the court could impute an additional $45,000 per year on top of the $30,000 the party is currently earning. The court can then determine the child support calculation as if the party were still earning $75,000 per year.

In the case of a party who was employed and then became incarcerated for a long period of time, the court could previously determine that the incarcerated party was voluntarily underemployed or unemployed. The court could then impute income to that party for child support purposes based on that party’s past earnings. An imputation finding in these circumstances could lead to the incarcerated party owing a child support obligation as if they were earning a significant income but because of the incarceration, are now earning much less or nothing at all.

The new law establishes that when a party is incarcerated for a time period of 180 days or more, the court may not use this incarceration to find that the party is “voluntarily” underemployed or unemployed as a result of the incarceration. This provides increased protections for incarcerated individuals from being ordered to pay a potentially large child support obligation they have no means of paying while incarcerated. The changes also prevent the incarcerated party from having a large child support debt upon their release.

The new statutory language does carve out exceptions to the added protections. The law explicitly states that the provision applies if a person is incarcerated for a crime other than a crime against the child who is the subject of the child support order or the custodial parent of that child. In other words, if a party is incarcerated because of a crime committed against the child or the other parent, the court can still find that he or she is voluntarily underemployed or unemployed and proceed to impute income.

Modification Based on Incarceration

The change in the law will apply to actions for child support modification as well.

Generally, a party can petition the court to modify child support if there has been a material change in the circumstances of the parties or the children, that warrants a change in the child support amount. If the court finds that the alleged change is significant, it can order a new support amount that the court determines to be in the children’s best interest.

The statutory revision relating to incarceration permits a party incarcerated for 180 days or more to file for a change in the ordered child support amount using the incarceration as the material change on which to base their request to modify. This change allows an incarcerated individual to meet the first threshold for a court to change the child support amount by creating an automatic material change in circumstances with the incarceration.

There are limitations to using incarceration as the basis for a material change in circumstances. As with consideration of imputation, the same exceptions apply; that to be a basis for a child support modification, the reason for incarceration cannot be a crime against the child who is the subject of the child support order or against the custodial parent of that child. The legislature also includes the limitation that the incarceration may not be used as a material change if it is the result of a failure to pay child support.


These changes will be effective as of July 1, 2021. Prior to this date, the current statutory version will remain in place and apply to any current proceedings.

If you have questions about child support, imputation of income, or changes in circumstances that may warrant a child support modification, be sure to consult with an experienced attorney in your area. From offices in Fairfax, Manassas, Ashburn, Arlington and Fredericksburg, the family law attorneys at Livesay & Myers, P.C. represent clients throughout Northern Virginia. Contact us to schedule a consultation today.