Dothan, AL asked in Family Law and Child Support for Alabama

Q: Im 5k behind on child support since covid hit. I'm wondering what I should do & will I be going to jail for this?

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1 Lawyer Answer
Shane Michael Oncale
Shane Michael Oncale
  • Birmingham, AL
  • Licensed in Alabama

A: You should immediately consult an attorney or file yourself to have your child support payments suspended or at least reduced. One of the big secrets of child support that they should make you aware of when you are first ordered to pay but don't is that if something happens in your life that causes you to be unable to pay the amount in full you MUST GO TO COURT IMMEDIATELY to adjust the amount. Even if it takes months or years to get a court date the Judge has the authority to forgive payments back to the day you file. The judge CANNOT make adjustments to any child support payments that came due before your sought relief...again CANNOT regardless of the reason. The example I often use is "What if I was in a comma. Could not pay. Could not file and ask for relief." The answer is well, tough. Sad but true and they don't tell you that when you are put on child support. No matter how valid your excuse or how much the judge believes you and wants to help you they can't. With all the discretion that is given a trail court judge, a reduction fo child support before relief is sought is not within that discretion. Even lawyers that do not practice are astounded that this is the law.

Second, you can't go to jail for being unable to pay child support. That would be debtor prison and fortunately debtors prison is no longer part of our society. The definition of unable however is up for debate and that is what you will find yourself arguing when you are before a judge. I always advise my client to pay what they can when they can even if that is but a fraction of what is owed or even $1. It is easier to make the argument that someone was unable to pay but payed what they could when something has been paid than when nothing at all has been paid. Regardless the burden is on the party receiving the support to prove that you were able to pay and did not.

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