Is a Divorce Decree a Modification of a Legal Separation As Far As Child Support Goes?

by Rob Jennings J.D.
Some people remain separated, without divorcing, for an indefinite period.

Some people remain separated, without divorcing, for an indefinite period.

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State laws vary on how soon after separation a couple can divorce, but sometimes spouses need to resolve issues of child support before a court can legally enter a divorce decree. During separation, you can decide financial, parenting and property issues in a separation agreement or through court. Whether or not child support changes with the entry of a divorce decree, however, depends upon your state's child support laws.

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Legal Separation

What constitutes a legal separation varies from state to state. Some states recognize legal separation in their statutes and couples can receive a separation decree issued by the court. In other states, separation is deemed "legal" if there is a valid separation or marital settlement agreement. For example, in New Jersey you cannot ask a judge for assistance in declaring you legally separated because New Jersey does not recognize legal separation. The distinction may be meaningless, however, in that you can still resolve child support issues in a separation agreement or by filing a complaint for child support.

Separation to Divorce

When a separation becomes a divorce, the resulting divorce judgment usually just changes the parties’ legal status from legally separated to legally divorced. All else remains unaffected and unchanged. Therefore, the terms of any existing separation decree carry over into a divorce decree. However, courts can sometimes override the terms of a separation decree or settlement agreement when ordering a divorce decree. One situation where separation terms may not carry over to the divorce is if the parties reconciled at some point and state law voided the separation agreement.

Child Support

Child support is never carved in granite. It can and probably will change until the child reaches the age where support is no longer required, usually 18 years of age. In some states, modification of child support depends on whether the support was embodied in a separation agreement or court order. When a separation is converted into a divorce, a parent can ask the court to recalculate the support obligation as part of the divorce decree, if warranted. Even if a separation is not converted into a divorce, child support can still be modified when warranted. What warrants a modification to child support depends on your state's laws.

Court Order

Typically, a court will modify a child support order if there has been a substantial change in circumstances. For example, a substantial change in the income of one or both parents, the lapse of a significant period of time, or the birth of another child could warrant a modification to child support. A court will only consider changes incurred since the last child support award was established. In some states, the amount of support would have to change by a certain percentage or amount, based on the current financial situation of the parents and needs of the child, before the court would approve modification of the order.