26.09.315  <<  26.09.320 >>   26.09.325

Child supportProcedures for abatement based on incarcerationRebuttable presumption of inability to payReinstatement of support obligation. (Effective February 1, 2021.)

(1) When a child support order contains language providing for abatement based on incarceration of the person required to pay child support, there is a rebuttable presumption that an incarcerated person is unable to pay the child support obligation. Unless the presumption is rebutted, the provisions of subsection (3) of this section apply.
(2)(a) If the child support order does not contain language providing for abatement based on incarceration of the person required to pay support, the department, the person required to pay support, the payee under the order, or the person entitled to receive support may commence an action in the appropriate forum to:
(i) Modify the support order to contain abatement language; and
(ii) Abate the person's child support obligation due to current incarceration for at least six months.
(b) In a proceeding brought under this subsection, there is a rebuttable presumption that an incarcerated person is unable to pay the child support obligation. The department, the payee under the order, or the person entitled to receive support, may rebut the presumption by demonstrating that the person required to pay support has possession of, or access to, income or assets available to provide support while incarcerated.
(c) Unless the presumption is rebutted, the provisions of subsection (3) of this section apply.
(3) If the court or administrative forum determines that abatement of support is appropriate:
(a) The child support obligation under that order will be abated to ten dollars per month, without regard to the number of children covered by that order, while the person required to pay support is confined in a jail, prison, or correctional facility for at least six months or is serving a sentence greater than six months in a jail, prison, or correctional facility. Either the department, the payee under the order, or the person entitled to receive support may rebut the presumption by demonstrating the person required to pay support has possession of, or access to, income or assets available to provide support while incarcerated.
(b) If the incarcerated person's support obligation under the order is abated as provided in (a) of this subsection, the obligation will remain abated to ten dollars per month through the last day of the third month after the person is released from confinement.
(c) After abatement, the support obligation of the person required to pay support under the order is automatically reinstated at fifty percent of the support amount provided in the underlying order, but may not be less than the presumptive minimum obligation of fifty dollars per month per child, effective the first day of the fourth month after the person's release from confinement. Effective one year after release from confinement, the reinstatement at fifty percent of the support amount is automatically terminated, and the support obligation of the person required to pay support under the order is automatically reinstated at one hundred percent of the support amount provided in the underlying order.
(i) Upon a showing of good cause by a party that the circumstances of the case allow it, the court or administrative forum may add specific provisions to the order abating the child support obligation regarding when and how the abatement may terminate.
(ii) During the period of abatement, the department, the person required to pay support, the payee under the order, or the person entitled to receive support may commence an action to modify the child support order under RCW 26.09.170 or 74.20A.059, in which case the provision regarding reinstatement of the support amount at fifty percent does not apply.
(d) If the incarcerated person's support obligation under the order has been abated as provided in (a) of this subsection and then has been reinstated under (c) of this subsection:
(i) Either the department, the person required to pay support, the payee under the order, or the person entitled to receive support may file an action to modify or adjust the order in the appropriate forum, if:
(A) The provisions of (c)(i) and (ii) of this subsection do not apply; and
(B) The person required to pay support has been released from incarceration.
(ii) An action to modify or adjust the order based on the release from incarceration of the person required to pay support may be filed even if there is no other change of circumstances.
(4) The effective date of abatement of a child support obligation based on incarceration to ten dollars per month per order is the date on which the person required to pay support is confined in a jail, prison, or correctional facility for at least six months or begins serving a sentence greater than six months in a jail, prison, or correctional facility, regardless of when the department is notified of the incarceration. However:
(a) The person required to pay support is not entitled to a refund of any support collections or payments that were received by the department prior to the date on which the department is notified of the incarceration; and
(b) The department, the payee under the order, or the person entitled to receive support is not required to refund any support collections or payments that were received by the department prior to the date on which the department is notified of the incarceration.
(5) Abatement of a child support obligation based on incarceration of the person required to pay support does not constitute modification or adjustment of the order.

NOTES:

Reviser's note: For the purposes of this section, "department" appears to refer to the department of social and health services, division of child support.
Effective date2020 c 227 §§ 3-13: "Sections 3 through 13 of this act take effect February 1, 2021." [ 2020 c 227 § 16.]
FindingsIntent2020 c 227: "(1) The legislature finds that a large number of justice-involved individuals owe significant child support debts when they are released from incarceration.
(2) The legislature finds that these child support debts are often uncollectible and unduly burdensome on a recently released justice-involved individual, and that such debts severely impact the ability of the person required to pay support to have a successful reentry and reintegration into society.
(3) The legislature finds that there is case law in Washington, In re Marriage of Blickenstaff, 71 Wn. App. 489, 859 P.2d 646 (1993), providing that incarceration does not equate to voluntary unemployment or voluntary underemployment.
(4) The legislature finds that there is a statewide movement to assist justice-involved individuals reenter and reintegrate into society, and to reduce state-caused pressures which tend to lead to recidivism and a return to jail or prison.
(5) The legislature finds that, although there is currently a statutory process for modification of child support orders, it is in the best interests of the children of the state of Washington to create a process of abatement instead of making it the sole responsibility of the justice-involved person to take action to deal with his or her child support obligation while incarcerated.
(6) The legislature intends, therefore, to create a remedy whereby court or administrative orders for child support entered in Washington state may be abated when the person required to pay support is incarcerated for at least six months and has no income or assets available to pay support.
(7) The goal of this act is to ensure that the person required to pay support makes the maximum child support monthly payment amount appropriate to comply with an order for child support, notwithstanding other provisions related to abatement herein." [ 2020 c 227 § 3.]
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