In Georgia, a parent in prison cannot have child support income imputed from the wages earned before incarceration, and being unable to work in prison is not willful unemployment.
What the Statute Says
Two sentences in OCGA 19-6-15(f)(4) govern. Under subparagraph (A), “[i]f a parent is incarcerated, the court or the jury shall not assume an ability for earning capacity based upon pre-incarceration wages or other employment related income, but income may be imputed based upon the actual income and assets available to such incarcerated parent.” Under subparagraph (D), “[a] determination of willful or voluntary unemployment or underemployment shall not be made when an individual’s incarceration prevents employment.” Both were added by the amendment that took effect July 1, 2018.
What This Means on the Worksheet
An incarcerated parent’s gross income is what that parent actually has, such as prison wages, if any, and assets, not the salary earned before conviction. The earning capacity route is closed as well: the willful unemployment finding that lets a court set support on what a parent could earn, described in a separate post, cannot be made while incarceration prevents work. The duty itself does not end. OCGA 19-7-2 ends a parent’s obligation at majority, death, marriage, or emancipation, and imprisonment is not on that list.
The Earlier Case Law
In Staffon v. Staffon, 277 Ga. 179 (2003), a father who began a six-year sentence for drug possession asked to be relieved of support while incarcerated. The Georgia Supreme Court refused, holding that “a child support obligor’s imprisonment for voluntary criminal acts is not grounds for a downward modification of child support obligations,” because “no person can object to the natural consequences of his own act voluntarily performed.” The guidelines were amended in 2018, after that decision, to add the two provisions quoted above. Staffon concerned changing an existing order; whether an order can be modified because of incarceration is addressed in our post-divorce modification posts.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!