Incarceration is Not Voluntary Underemployment

Under NH Law a child support order can be modified when a petition is filed three (3) years or more after the issuance of the order, or if there is a substantial change in circumstances that warrants modification of the order. In the latter circumstance a party can file anytime after the change of circumstance occurs.

In the case of In the Matter of New Hampshire and Cory R. Lounder, the Court addressed the issue of whether incarceration constitutes a substantial change in circumstances that would warrant a change in an existing child support order. Mr. Lounder was subject to a child support order requiring him to pay $109 per week. Subsequently he was convicted of arson and sentenced to incarceration. He filed a motion to modify his child support order arguing he lost his job, which constituted a change of circumstance.

The trial court denied his request reasoning his incarceration was tantamount to voluntary unemployment. A court can impute income to an obligor who is voluntarily unemployed or underemployed.

On appeal the NH Supreme Court disagreed and found that unless there was evidence that Mr. Lounder was motivated to commit his crime by an intent to lessen his child support payments, he could not be considered to have lost his job intentionally. The Court then ordered his payment be lowered to the statutory minimum amount of $50.

Child support is one of the most litigated issues in family law. It is important to keep in mind that one need not and should not wait three (3) years to petition to modify an award if circumstances change. Additionally, it is important to note that one cannot avoid an obligation by voluntarily losing a job or by taking a job that pays far less than the person could reasonably make.

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