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Incarcerated NCPs: Ordering $0 Support vs. Imputing Income

Incarceration Definition

Incarceration means that a person is sentenced to the Oklahoma Department of Corrections, another state’s prison system, or the Federal Bureau of Prisons.

When an NCP is expected to be incarcerated for at least six consecutive months from the date the support amount is reviewed or established, request the court enter a temporary child support and medical support order amount of $0.

If the court declines to use actual income and imputes minimum wage or another amount to NCP and orders the child support obligation to begin while the NCP is incarcerated, follow the court’s order.

Practice Tip: There may be other situations where the NCP is in a county jail awaiting criminal trial for a lengthy period of time. These types of cases should be dealt with on a case-by-case basis. State’s Attorney determines whether to treat it as an incarcerated case.

No Temporary Order Requested

The only time you do not request a temporary child support order of $0 is when:

  • The NCP has income or assets outside the correctional institution.

NCP does not have income or assets outside the correctional institution

CSS asks the court to order the following based upon whether there is an existing child support order at the time of incarceration or it is an establishment case.

Pre-incarceration child support order

    • If there is an existing child support order, request the child support obligation be temporarily modified to $0 per month during incarceration.
      • Also, request the support revert to the pre-incarceration order amount the first day of the month following a lapse of 90 calendar days from NCP’s release. See RSO User Guide for examples.

No pre-incarceration child support order

    • If there is no existing child support order, request the child support obligation temporarily be set at $0 per month during incarceration.
      • Calculate child support based on minimum wage for a 40 hour work week and requests NCP pay that amount beginning the first day of the month following a lapse of 90 calendar days from release.  See RSO User Guide for examples.

Request for review within 90 days

    • When an NCP makes a written request for review of the child support order amount within 90 days of release, the post incarceration child support amount does not begin until the review or modification is complete.
      • Consider the parent’s current income and job search activities to decide what income to use for the NCP in the modification action.
    • When a review is requested and the NCP fails to appear for a hearing, the monthly child support obligation is either the pre-incarceration order amount or an amount based upon minimum wage, whichever applies.

NCP has income or assets outside the correctional institution

Examples of income outside the correctional institution may include a trust fund, rental income, royalties, income from investments, and any other source of outside income.

Pre-incarceration child support order

    • If there is a pre-incarceration order, determine whether the child support obligation should be modified at the time of incarceration, based on a change in income or other change of circumstances.
    • If the child support is modified, request the obligation to begin the date of filing of the motion to modify. Unless, NCP and CP agree to another date, or the court orders another effective date.  See RSO User Guide for examples.

No pre-incarceration child support order

    • If there is no pre-incarceration order, determine the appropriate amount to use in the child support computation based on NCP’s income and assets.
    • Request the obligation begin effective the date of filing the establishment action. See RSO User Guide for examples.

Citations

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