My ex is taking me to court for a modification of child support. He is $25,000 in arrears and plans to use his recent 18 month term in prison and lack of employment and drivers license to show hardship. He is currently ordered to pay $42 per week per child.
Hard to give you a definite answer, but since he was in prison for 18 months, he did not have the ability to pay, but that in itself does not mean that the modification should be granted. If he had a substantial arrearage before the prison sentence, and I am guessing he did, then you can argue unclean hands to deny the modification. However, if he is bringing this based on the three year review, and it is being brought by child support enforcement, he may get the reduction. However, at 42/week, that is below minimum wage, so it is not likely going to be go any lower than that, unless he has significant timesharing with the child or the child is receiving income from social security. Good luck.
The fact that he was in prison does not excuse him from his support obligation. The child support continues to accrue the arrearage. He cannot be held in contempt for not paying, but the debt is still there. Most courts will order him to pay child support at the calculated guideline amount based on him earning minimum wage at 40 hours per week.
The child support the is currently paying is pretty minimal, so I doubt he'll be able to get it lowered. You should consult with Child Support Enforcement in your area though as they provide free legal services for child support cases.
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