Non-custodial Illinois parents who are subject to a child support order and who then become incarcerated are permitted to ask for a modification if their income is reduced after they are sent to prison, but in 14 states, this is not permitted. Prison reform advocates argue that this results in parents being released from prison to face child support payments plus interest that they are unable to pay. As a result, they may be incarcerated again.
A 2010 study by the federal government estimated that about 29,000 federal inmates had fallen behind on their child support obligations. The average that was owed was almost $24,000. One man was released from prison after serving an armed robbery sentence and was faced with a civil judgment of $50,000 for child support and interest. He had attempted to get his child support payments modified since he only made about $40 per month in prison. However, the judge said that based on state law, his incarceration was not a material change in circumstance. Instead, his payments went up from $50 to $400.
The Obama administration is attempting to put regulations in place that will allow inmates in all states to request a modification. Sources say that by the time the president leaves office in January, the regulations should be finalized.
Child support is one of a number of issues that may need to be negotiated during a divorce. Once an amount is decided upon, it might be necessary to later modify it due to a change in circumstances such as a job loss, but this has to be done through the legal system. Attorneys will remind their clients that, even if a modification is approved by a judge, it applies only to future payments and has no effect on any past due amounts.