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Civil: Child Support May Be Modified To Account For Later Incarceration
Posted in Litigation

On Thursday, the Indiana Supreme Court handed down two opinions concerning the modification of child support orders to reflect limitations on earning capacity while incarcerated, further extending the rationale it expressed in Lambert v. Lambert, 861 N.E.2d 1176 (Ind. 2007). 

In Lambert, the Indiana Supreme Court held that when a court is setting an initial order for child support after the parent is incarcerated, it is unreasonable to use pre-incarceration income as the basis for child support calculations when that income would not be available during the incarceration.  Rather, the Court found that support calculations should be based on the assets and income available to the incarcerated parent.  The Court left unresolved the issues of whether incarceration after the initial order was so substantial a change in circumstances that a child support award should be modified and, if so, the effective date of that modification.  The Court answered both questions Thursday.

In Clark v. Clark, the Court unanimously held that “incarceration may serve as a changed circumstance so substantial and continuing” that a child support order entered prior to incarceration is no longer reasonable.  Thus, consistent with Lambert, a child support modification may be warranted so that a support obligation can be calculated based on actual earning and assets available while incarcerated.  However, the Court observed that, in accordance with Lambert, “a court may order the child support obligation to revert to the pre-incarceration level upon release, consistent with the modification recommendation,” to save the custodial parent from having to seek a new modification order when the incarcerated parent is released.

In a companion case, Becker v. Becker, the Indiana Supreme Court unanimously held that any modification to a child support order to reflect the incarceration of the obligated parent “may not take effect on a date earlier than the date on which the petition to modify is filed.”  The Court held that neither Lambert nor Clark apply retroactively to modify child support orders already final and observed that a trial court has discretion to modify child support only for the period triggered by the filing of the petition to modify, not before.

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