Debt to Society and to Children

A child support obligation is subject to review by a court when there is a change in the obligor’s financial circumstances. One may be surprised to learn, however, that this is true even when the change in financial circumstances is self-created by an obligor committing a crime that results in a prison sentence. If an incarcerated child support obligor can barely afford a snack at the commissary, it is the child who will financially suffer. A prison sentence is not an automatic get-out-of-jail-free card to avoid paying child support. But, upon a Motion filed by an inmate, a court can suspend or ‘arrest’ a child support obligation pending the inmate-obligor’s release from prison.

In Halliwell v. Halliwell, 326 N.J. Super. 442, 741 (App.Div.1999), the Appellate Division held that although an inmate’s incarceration may be the result of choosing to commit a crime, he or she may still be entitled to a suspension of child support pending release from prison. The Court found that an inmate has no ability to rectify his or her financial situation and earn more money, unlike an obligor who is voluntarily unemployed or underemployed. The Halliwell Court viewed incarceration in common with a long-term disability that prevents an obligor from earning income rather than as a voluntary reduction in income that can be rectified. Procedurally, the Halliwell Court found that in cases where a child support obligor has been sentenced to a lengthy period of incarceration and has no assets, a Motion to modify their support obligation should be heard after their release. At that point, the Motion would be considered after the parties submitted updated financial information. A court could then enter an order retroactive to the filing date of the Motion to determine a current support order and arrearage payment, based on the obligor’s financial ability.

In another Appellate Division case of Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000), the Court confirmed what was already evident, that an inmate’s request to suspend a child support obligation must be determined on a case-by-case basis. That determination includes not only whether to suspend an obligation, but also whether or to what extent arrears will accrue; the accrual of arrears during a prison sentence may be one of the biggest issues such cases. The accrual of arrears during a long-term sentence may result in the inmate being saddled with nearly insurmountable debt upon release. So, after repaying the debt to society, he or she may have substantial child support debt to repay as well.

The real financial victim in these cases is the child, who either does not receive child support during a parent’s prison stay, or may not receive it at all for the time period of the parent’s prison sentence.

Alexandra Ridgen, Esq.

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