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Incarcerated Parents and Child Support in Virginia

JailWhat happens to a non-custodial parent’s child support obligation in Virginia if they are incarcerated and child support has already been ordered? Does their obligation to pay support automatically freeze, modify, or terminate? Should the incarcerated parent petition the court for a modification in their obligation? Is the parent in jail entitled to a modification after and because of their incarceration?

The answers to these questions may surprise

Will the Incarcerated Parent’s Child Support Obligation Be Modified?

In Virginia, the answer to this question is: probably not. A Virginia court is unlikely to modify an already existing child support order in lieu of a non-custodial parent’s recent incarceration.

In order to modify an existing child support order in Virginia, the petitioning party must demonstrate that a material change in circumstances has occurred, since entry of the last order, that warrants a modification. Naturally, incarceration is a material change in circumstances, but it is not usually a change in circumstances that warrants a modification in the support obligation. The Virginia Supreme Court has held that:

[the] party seeking a change in court-ordered child support has the burden to prove by a preponderance of the evidence a material change in circumstances justifying modification of the support requirement. In discharging this burden, a father seeking a reduction in support payments must… show his claimed lack of ability to pay is not due to his own voluntary act or because of his neglect.

Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 118-19 (1991).

For purposes of the Virginia child support guidelines, Virginia Code Section 20-108.1(B)(3) provides that income will be imputed to a non-custodial parent who is “voluntarily unemployed” or “voluntarily under-employed.” The Virginia Court of Appeals held in Brooks v. Division of Child Support Enforcement, No. 1928-96-2 (Va. Ct. App. 6/3/97) and Layman v. Layman, 25 Va. App. 365, 488 S.E.2d 658 (1997) that an obligor’s incarceration is voluntary unemployment under the statute and income may be imputed. As stated in Edwards v. Lowry, 232 Va. 110, 348 S.E.2d 259 (1986), the non-custodial parent cannot shift to his children and the custodial parent the consequences of his wrongdoing.

Therefore, although Virginia law recognizes that the non-custodial parent’s incarceration is a material change in circumstances, it also acknowledges that the change is the result of the non-custodial parent’s voluntary wrongdoingand is thus voluntary unemployment under Virginia Code Section 201-108.1(B)(3).

Is the Incarcerated Parent on the Hook for Support That Accrues During Their Incarceration?

Under Virginia Code Section 20-60.3(14), child support becomes a judgment by operation of law at the time that it becomes due and unpaid. Thus, a non-custodial incarcerated parent is on the hook for child support due and owing during their incarceration. The support will continue to be owed and the interest will continue to accrue on the unpaid support.

Whether you are the family member of an incarcerated non-custodial parent or a custodial parent receiving child support from an incarcerated co-parent, be sure to review the facts of your case with an experienced family law attorney. The family lawyers at Livesay & Myers have years of experience with child support cases in the courts of Northern Virginia. Contact us to schedule an appointment today.