How Does Child Support Work If Your Ex-Spouse Is in Jail?

Child support is an important type of court order that enables a custodial parent to continue providing for the needs of a child after a divorce. If your ex-spouse gets incarcerated, this could interfere with child support payments and make things harder for your family financially. In general, a parent in California will not owe child support if he or she is incarcerated for more than 90 days. If this is an issue for you, contact a child support attorney in San Diego to learn more about your potential options.

The 90-Day Rule for Incarcerated Parents

As of September 27, 2022, a child support order will automatically be paused if the parent required to pay is confined in jail for more than 90 consecutive days. This is the law under California Family Code § 4007.5. This law also applies to confinement against the individual’s will in a mental health facility, juvenile detention center, prison or another type of institution.

Under this rule, an individual will not owe child support during the time of confinement if it lasts for more than 90 days. If an individual is confined for less than 90 days, however, the child support order will remain in place and the incarcerated individual will be responsible for making payments that were due while he or she was in jail.

If your ex-spouse goes to jail but is still legally required to pay child support, failing to pay could place the payments in arrears. This means the unpaid child support will accrue interest while it remains unpaid. Continuing to accrue arrears can result in consequences such as being held in contempt of court and the parent being sent back to jail.

Exceptions to the Rule

If a child support order in California began or was modified between October 8, 2015 and December 31, 2019 or January 1, 2021 and September 26, 2022 and a parent was in jail for more than 90 days during the same timeframe, this parent may qualify for relief from a child support obligation. There is also an exception if the parent has money available to pay a child support obligation while he or she is in jail. Finally, if the parent is incarcerated for domestic violence or for not paying child support, the support order will remain in effect.

Child Support Orders Restart Upon Release

Any child support order that is paused during a jail sentence will restart after the individual is released. The child support obligation will continue at the same amount as it was prior to the incarceration, beginning on the first day of the 10th month after the parent is released. However, the recipient parent can ask the court to restart the order sooner if the released parent gets a job prior to this date.

What if Your Spouse Can’t Afford to Pay?

Being sent to jail can interfere with an individual’s ability to get work in the future. If your ex-spouse lost his or her job due to incarceration and can no longer afford to pay child support, he or she may request an official support order modification. A modification may be granted by the courts if a parent can show a substantial change in his or her financial situation. However, the individual must show proof that he or she is actively trying to get a job and is unable to.

For legal advice about your specific child support situation in California, contact the San Diego family lawyers at Boyd Law for a free consultation.