Recently I had a consult with a man who was in my office who was having problems with a child support. His story was not that different from many who have come to see me. He had missed so many payments that not only did he who owe current child support he owed a lot of back child support. It was so bad that half of his paycheck was going to child support.
The one difference in his story was that the reason he was so far behind in child support was that he had been incarnated for 8 years. Being incarcerated change many aspects of his life. One aspect that did not automatically change was his child support. What he owed continued to accumulate. In this article, we will discuss:
- How incarnation affects the paying parent?
- How being incarnated affects the receiving parent?
How does incarceration affect the paying parent?
Some parents assume that child support automatically stops when they are in jail or prison. However, that is not the case. Something I tell parents who hire or consult with us is that the Order is the Order until a Judge signs a new Order.
This means until an order a parent petitions to modify the existing child support order, the parent will continue to be liable for the monthly amount due to child support. This is also why the man who consulted me was so far behind in child support when he came to see me. He had never done anything to try and change his current Order.
What can a paying parent do regarding child support once they are incarnated?
One thing you can do is file an Incarcerated Noncustodial Parent Affidavit of Income/Assets for a change in the court where the child support obligation was established. This brings the incarnated parents situation to the attention of the Texas Office of the Attorney General.
The Attorney General does not have the power to unilaterally modify a child support order. This power still rests with the Judge who made your current order. By filing this document the attorney general attorney general can file the necessary paperwork with the court. The Judge can decide whether to modify child support.
Child Support Order Modification
A faster way to get things done is if the incarcerated individual, family member, or friend hires a private attorney to file the necessary documents with the court and to request a modification of the child support. The other parent will also have the opportunity to present their own case to the court.
To obtain modification of an existing child support order, an incarcerated parent must file the proper request with the appropriate Texas court. A Texas family law attorney help an incarcerated individuals seek to a modification of the current child support order. When these types of hearings occur, the custodial parent frequently appears to contest modification of the existing order.
It is not uncommon for a Judge to stop child while a parent is incarcerated one reason is that they do not have a job that allows them to pay child support and their situation is already bad no reason to make it worse. Normally the lack of a job is not enough to stop child support. Generally, a court will construe a person as having a job at least making minimum wage. One exception is incarnation under Section 154.068 of the Texas Family Code.
Texas Family Code 154.068. WAGE AND SALARY PRESUMPTION
(a) In the absence of evidence of a party's resources, as defined by Section 154.062(b), the court shall presume that the party has income equal to the federal minimum wage for a 40-hour week to which the support guidelines may be applied.
(b) The presumption required by Subsection (a) does not apply if the court finds that the party is subject to an order of confinement that exceeds 90 days and is incarcerated in a local, state, or federal jail or prison at the time the court makes the determination regarding the party's income.
Part b that makes the presumption inapplicable to paying parents who are confined for over 90 days was recently passed in 2015.
How does being incarcerated affect the recipient parent?
If you are the parent who is receiving child support and are incarcerated and you do not contact the OAG, payments will continue to be sent through the payment method you selected:
- Direct deposit to a bank account or debit card, or
- Mail to the address previously provided.
The OAG will continue to send your child support payments to you unless a court order redirects them to another person. For example, the court may order that payments go to the person with physical custody of your children while you are incarcerated.
While in prison can I redirect my child support payments?
If you are the parent who is receiving child support, you may have the Texas child support payments sent to the person who is taking care of your child while you are incarcerated. You will need to:
- Complete an Authorization for Release of Information and Payment
- Return it to the OAG
- Include the name of the person who is to receive the payments. to have the payments sent to another person
Incarnation is a reason to seek a Change to your Child Support Order
Under Texas Family Code Section 156.409:
(a) The court shall, on the motion of a party or a person having physical possession of the child, modify an order providing for the support of the child to provide that the person having physical possession of the child for at least six months shall have the right to receive and give receipt for payments of support for the child and to hold or disburse money for the benefit of the child if the sole managing conservator of the child or the joint managing conservator who has the exclusive right to determine the primary residence of the child has:
- voluntarily relinquished the primary care and possession of the child;
- been incarcerated or sentenced to be incarcerated for at least 90 days; or
- relinquished the primary care and possession of the child in a proceeding under Title 3 or Chapter 262.
Person in Possession of Children Can also Get Unpaid Support
If the court modifies a support order under this section, the court shall order the obligor to pay the person or entity having physical possession of the child any unpaid child support that is not subject to offset or reimbursement under Section 157.008 and that accrues after the date the sole or joint managing conservator:
(1) relinquishes possession and control of the child, whether voluntarily or in a proceeding under Title 3 or Chapter 262; or
(2) is incarcerated.
(a-2) This section does not affect the ability of the court to render a temporary order for the payment of child support that is in the best interest of the child.
(a-3) An order under this section that modifies a support order because of the incarceration of the sole or joint managing conservator of a child must provide that on the conservator’s release from incarceration the conservator may file an affidavit with the court stating that the conservator has been released from incarceration, that there has not been a modification of the conservatorship of the child during the incarceration, and that the conservator has resumed physical possession of the child. A copy of the affidavit shall be delivered to the obligor and any other party, including the Title IV-D agency if appropriate. On receipt of the affidavit, the court on its own motion shall order the obligor to make support payments to the conservator.
(b) Notice of a motion for modification under this section may be served in the manner for serving a notice under Section 157.065.
Child support obligor's release from prison
Under Section 156.401(d) of the Texas Family code "The release of a child support obligor from incarceration is a material and substantial change in circumstances for purposes of modifying child support if the obligor's child support obligation was abated, reduced or suspended during the period of the obligor's incarceration."
This means the person who should be receiving child support could ask the court to start or reevaluate child support if the parent who should be paying is no longer incarcerated.
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Other Articles you may be interested in:
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- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
- Why Ignoring Child Support Obligations is a Bad Idea in Texas
- Can I get child support and custody of my kids in Texas if we were never married?
- Child Custody Basics in Texas
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Law Office of Bryan Fagan | Spring Divorce Lawyers
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