Rubino v. Rubino – Child Support and Incarceration

In nearly every case involving children, the New Jersey Court will make an order for support for the parties’ children. There are very limited circumstances under which a non-custodial parent will not be obligated to provide financial support to his or her children. There are circumstances that may warrant reexamining or adjusting child support obligations. One situation which may merit adjustment of a child support order is incarceration of the paying parent.

As with any other substantial change that may result in a child support modification, incarceration does not automatically suspend the child support obligation of the paying parent. He or she must file a motion with the court requesting that the child support obligation be suspended or at least reduced for the term of his or her incarceration. An incarcerated parent will not be entitled to a reduction or elimination of child support payments from before the date the motion is filed. In order words, the court will only look from the date of filing of the modification request going forward. An incarcerated parent will need to demonstrate that the incarceration is long term and also that he or she does not have any assets that could otherwise satisfy the obligation while he or she is incarcerated.

Modification of a child support order for an incarcerated parent was at issue in Rubino v. Rubino. In that case, the parties were divorced in 2006, and had a property settlement agreement that incorporated a child support order. The PSA also provided that the wife was obligated to pay the husband $80,000 for his interest in the marital home in two equal installments. After the divorce was finalized, the husband was arrested for several charges, and the wife requested and was awarded full custody together with weekly child support. The husband fell behind in his support obligation and the parties agreed to deduct the amount he owed the wife from the first payment he was due for the house equity. The husband was eventually incarcerated for additional charges. The husband requested a retroactive reduction in his support obligation as well as the enforcement of his right to receive the second payment from the home equity. The Appellate Court agreed with the trial court’s decision to allow the wife to indefinitely defer the payment of the second half of the equity. The Court noted that the husband owed the wife a large amount of money from past due child support payments, and forcing her to pay the second installment would be detrimental to the parties’ children as a result.

Although incarceration may serve as a reason to modify a child support order, it is far from automatic. in helping clients navigate child support modifications for all types of reasons. Call us today at (732) 529-6937 to talk about your case.