What happens if he goes to jail


#1

My ex husband is on probation. He also just lost his job (he has paid one cs payment since then…$11 less than what it should have been, does he still have to pay the court appointed amount even though he doesn’t have a job?). What happens if he goes to jail? I know it would depend on how long and what it was for but if it was for the short term would he have to back pay child support when he got out? If it was for the long term could I go after sole custody and have his rights taken away? I also have the issue of our house. I am still on the loan and the deed. We only verbally agreed he could have the house and equity if he sold it, our paperwork from the divorce states we settled it ourselves. However, he WILL NOT remove me from it. Do I still have rights? I did speak to a real estate attorney and he said I would need to file a partition if he was in jail for a long period of time…I cannot survive without child support. Do I have any chance of having rights to any equity to support the kids? Very nervous just trying to be prepared. Thank you.


#2

In general, if your husband is in jail then his child support obligation will remain ongoing. If he doesn’t pay, then it will be added to an arrears balance. If your husband is in prison, then it is possible that the child support obligation will be forgiven during the months he is in prison.

You still have rights even though your husband is in jail or prison. You can still file for equitable distribution against him (assuming you are not already divorced). This is the claim that will divide the marital property. He can be served with the claim in jail or prison and he can still be brought to court to attend any court dates.

It’s possible that you could receive an unequal distribution based on the fact that you have minor children to support and are not likely to receive reliable child support from your husband.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

Ok Thank you. We are divorced. Currently he is transferring the child support on his own. So if he goes to jail I will just need to keep track of how many payments he has missed and report that to child support enforcement?

As for the house since we are divorced but my name is still on the property and loan…if he goes to jail would I just need to find a way to make payments until he gets out to save my credit? I guess it will depend on how long he is in jail of course. However, if he is there long term or in prison do I have a right to sell it and get the equity to support the kids? I am assuming it will still require his agreement and signature? I am just concerned how I will support the kids and save my credit if something happens. Would I need to go back to court to revisit equitable distribution for the property?

Also what would I do about custody? I have primary, he sees them every other weekend if he takes them at all. For this as well, I assume it would be based off of what terms he is in jail/prison, how long, etc. But basically when could/should I take action to have his rights removed?

Thank you. This is a very possible scenario so I just want to be prepared.


#4

If he goes to jail or prison, keep track of the payments and inform child support enforcement. They will help you recoup this and it’s possible they can keep him in jail for failure to pay child support after his criminal sentence is served.

Since you are divorced, you cannot revisit equitable distribution. If you have a court order or separation agreement that requires him to do something and he has not (for example: sign a deed, refinance a mortgage, etc.), then you can file a contempt motion or a breach of contract lawsuit to enforce the document. If you do not have either in regards to the house, then you would need to file a petition to partition the property so that it can be sold. You will not be able to sell it without his consent assuming his name is also on the deed.

If he is in jail or prison, he will not be able to exercise his visitation rights pursuant to the court order. You will not be able to have his parental rights terminated because of being in jail or prison. He would have to willfully abandon the minor children for at least 6 months in order to begin a termination of parental rights proceeding.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

Thank you. Follow up question from a change of events. He has given up his last two weekends of visitation. Post losing his job his first child support payment was short and late (most of the time they are late). The most recent one I have had to ask for daily, he would not answer. Today he told me he is trying to get the money to pay…it will be a week late if he pays. However, he was seen at the bar. He was also able to pay the mortgage. I have printed out statements and text messages to prove all of this. I will be taking a picture of his vehicle at the bar to show that he is spending money. At what point to do I call CSE? Do I give it a month? I do not have the money to take him to court. I actually am making plans to move out of my apartment since I cannot afford a place to live without CS and this irregularity is making me nervous. I am going to stop asking him daily for money. I feel like its not my responsibility to beg.


#6

You can contact your case worker at CSE that the payments are late and not for the full amount. The case worker may be able to issue a motion/order to appear and show cause against him requiring him to come to court and either pay or face jail time for failure to pay. Oftentimes, the threat of going to jail for child support will cause payors to find the money to catch up their payments.

Be sure to have your evidence together for the case worker.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.