Does it really make sense to incarcerate child support debtors if it is clear that they have no funds to pay, or even the ability to borrow funds to satisfy their obligations?

Take the case of Damian. In 1999 a child support hearing was commenced with respect to his CSSA income, and the appropriate amount of child support he should pay to his estranged wife. In 1999, Damian earned a corporate income of approximately $230,000, but had corporate expenses in excess of $140,000. In addition, many of the expenses (almost $90,000) were “reimbursed expenses” which vendors merely repaid the corporation for expenditures made on their behalf for supplies and related expenses. In other words, it was simply “money in-money out”, with no net income or profit to the corporation.

From 1999, through 2005, the hearings continued, and Damian stayed current with all Court ordered obligations, despite the fact that his income had dwindled to virtually nothing, based on technological advances in his industry, which decimated his business.

More than six years after the hearings commenced, on or about December of 2005, the Support Magistrate rendered a decision based solely on his 1999 corporate income, and disallowed any and all corporate expenses, even including the “reimbursed expenses”. Deciding that his personal income was $230,000 per year, from 1999 through 2005, Damian was immediately $350,000 in arrears when the order issued, although he had struggled to make every payment previously ordered by the Court. Damian’s license was suspended, judgments entered, his meager bank accounts seized, tax refunds forfeited, etc. In addition, the Court ordered a counsel fee award of $50,000 to Damian’s wife’s attorney.

The estranged Wife then sought to have Damian found to be in “willful violation” of the order, seeking, among all other remedies, incarceration. After another four years of proceedings, and exhausting all objections and rights of appeal, Damian, although currently receiving “food-stamps” from the state, and having actual personal income of less than the “self-support reserve” (about $12,000 per year), was found to be in “willful violation” of the Court’s order in late 2010. The evidence clearly showed that Damian was just barely surviving, having no assets, paltry income, no health insurance or other ability to afford medical or dental care, and was living “hand-to-mouth”. In addition, the Court even denied Damian’s application for a downward modification of the massive monthly obligation, leaving the arrears accumulated at approximately $450,000. Damian now awaits a determination by a Family Court Judge, on whether he will be incarcerated for up to six (6) months on Riker’s Island.

Whether or not he is incarcerated, in all likelihood, Damian will never be able to satisfy, or ever recover financially from the Judgment rendered. Such Judgments are not dischargeable in bankruptcy, and Damian will never be able to get a license to drive, or even maintain a bank account, for the rest of his life!