Child Support Modification Due to Payer’s Incarceration

©William D. Slicker, 2012

Child support in Florida is based on the payer’s income, the payee’s income, and the number of children. In cases when a payer has voluntarily lowered his income, the courts have imputed a higher income to the payer.

Cases dealing with situations in which the payer was incarcerated and sought to modify the child support based on the inability to earn money while in prison led to a split among Florida’s appellate courts. In Waugh v. Waugh, 679 So. 2d 1 (Fla. 2nd DCA 1996) and in Dept. of Revenue v. Jackson, 780 So. 2d 342 (Fla. 5th DCA 2001), the courts held that it was wrong to impute income to a person while incarcerated because there was no showing that the inmate had the capability to earn the amount being imputed. On the other hand, in Mascola v. Lusskin, 727 So. 2d 328 (Fla. 4th DCA 1999) the court held that a child support obligation could not be decreased where the payer had been convicted of a crime that was a voluntary action.

In order to resolve this conflict, The Florida Supreme Court issued an opinion in Dept. of Revenue v. Jackson, 846 So. 2d 486 (Fla. 2003). In that opinion, the court stated that the child’s interest in receiving child support trumped the payer parent’s substantial change in circumstances resulting from incarceration. Therefore, the child support could not be modified due to incarceration of the payer parent. However, the court recognized that when coming out of prison the payer would probably not have the means to pay the large accrued child support debt. Therefore, the payer parent, upon release from prison, could seek to modify the monthly amount of the child support payments so the arrearage would not be reduced but the payments on that arrearage could be reduced to spread repayment of the debt out over a longer period of time.

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