The answer is: sometimes. In narrow circumstances, a Florida state court may find that someone who owes child support is in civil contempt of court and order him or her incarcerated.
But Florida law governing civil contempt as a legal remedy for failure to pay child support is very complicated, so any parent on either side of this issue should find an experienced family lawyer for advice and representation.
Civil contempt
Basically, civil, as opposed to criminal, contempt of court can be the result of failing to follow a court order. In Florida, a judge may find that a parent with a valid, enforceable child support obligation, who can pay and willfully refuses to do so, is in civil contempt and subject to potential incarceration.
Requirements for contempt and for incarceration
A specific set of facts must exist. First, a court order must have clearly established the child support obligation, either by incorporating a marital settlement agreement containing an agreed-upon child support obligation or by including a judge’s child support order. The idea is that no one should go to jail if his or her child support obligation was not clear.
Second, the parent must be behind in child support payment.
Third, the failure to pay must have been willful, meaning an intentional or deliberate refusal to pay.
Fourth, the parent must be able to pay the amount owing. In other words, the court cannot jail someone whose reason for nonpayment of child support is inability to pay. Put another way, the policy behind this proceeding is to pressure someone to pay who has the money or assets to do so and has refused.
Fifth, the court must clearly include in its order for incarnation a purge amount. This means that the order must say the specific dollar amount of child support arrearages owed, payment of which would form the basis for avoiding, ending or “purging” the incarceration.
The requirement that the parent must be able to pay the child support owed has roots in the Florida Constitution that forbids incarceration for debts owed.
Other options
Instead of civil contempt, other legal remedies may be appropriate. For example, should one of the parties seek child support modification based on changed circumstances? For example, maybe the paying parent is unable to bring in the level of income anticipated due to unexpected illness.
