Child support orders don’t change in Missouri when you become incarcerated. You must file a motion to modify a child support order to have your child support payments reduced or deferred, explains Kansas City divorce attorney Mark Wortman.
In addition, the courts can “impute” child support when you avoid child support payments in any way: They can decide payments on what you’ve made in the past and can make in the future. If you’re an inmate, the courts may decide that your incarceration can be considered voluntary unemployment or voluntary underemployment.
Imputed income is used to determine child support payments. It is based on the parent's capacity to earn money and on how much you’ve been able to earn in the past and present. Imputed income also includes estimates of what you could earn if you were using your best efforts to find employment. The court can order these child support payments to be paid retroactively over the time that an inmate is incarcerated.
Some courts take the stance that imprisonment is a result of a willful act or crime and so can be deemed voluntary unemployment, according to Laura Wish Morgan on the website Child Support Guidelines. Other courts reduce payment amounts or defer payments until after an inmate is released.
Filing a Motion to Modify Child Support
File a motion to modify child support as soon as your income changes, stresses attorney Wortman. Once the order is adjusted, the changes can be applied retroactively to the filing date. Otherwise, child support in arrears accumulates and cannot be erased.
Wortman advises using an attorney to make modification requests rather than going to the Family Services Division because the court can modify orders more quickly and can issue temporary relief orders until the child support order is sorted out. However, you can do it yourself with the Family Services Division.
The appellate judge Robert Ulrich writes of the court’s opinion on imputed income, inmates and child support modification following a 1993 case heard by the Honorable Daniel Chadwick.
An inmate was denied child support modification and appealed the decision, claiming that he should not be held responsible for the order when his $15 per month income in prison wouldn’t allow him to make the child support payments. He lost the case because he was to be released within 2 years and his income before he became incarcerated led the court to believe that he could earn enough to pay his arrears when he was released.
Trends in law concerning this matter include a reluctance to change child support orders and a view that the present ability of an incarcerated individual to pay is less important than his long-range capability to earn money.
Ulrich writes that while incarceration isn’t a matter of choice, the criminal act committed is and the act of committing a crime comes with the “forseeable consequence” of imprisonment. For this reason, the court doesn’t hold that incarceration excuses a parent’s responsibility for their children.
The Missouri court system considers each inmate’s child support modification on a case-by-case basis. How long an inmate can expect to be imprisoned, their earning potential upon release and the amount of payments in arrears that will accumulate are all considered.
- Missouri Divorce & Family Law Blog: If You Pay Child Support Per a Missouri Judicial or Administrative Order and Your Income is Reduced or Lost - A Motion to Modify is Required; Mark Wortman (Jun. 30, 2010)
- Court of Appeals of Missouri, Western District: Ervilla Suann Oberg v. Travis Dean Oberg; Robert Ulrich (Dec. 21, 1993)
- Child Support Guidelines: Imputing Income to The Incarcerated Parent; Laura Wish Morgan; (May 19, 2002)
- prison image by Albert Lozano from Fotolia.com