Do You Have to Be Divorced to Pay Child Support or Can You Be Legally Separated?

By Jennifer Kiesewetter, J.D.

Do You Have to Be Divorced to Pay Child Support or Can You Be Legally Separated?

By Jennifer Kiesewetter, J.D.

Both parents must support their children financially. If you are going through a divorce or are legally separated, child support may be required before your final divorce. The amount of support and when it's paid depends upon your state's divorce laws and whether a court has issued a temporary or permanent child support order.

Smiling little girl holding a woman's hand

Legal Separation

A legal separation is a court order describing the rights and obligations of each spouse when they are living apart but not divorced. Couples may decide to get a legal separation instead of a divorce for a variety of reasons, including religious, financial, or other family-related decisions, such as the impact it will have on their children.

Additionally, a legal separation provides certain benefits over divorce. For example, both spouses can remain on one another's health insurance plan since they are still married. Additionally, spouses may choose legal separation to preserve immigration status or specific tax benefits.

Child Support During Legal Separations

When you decide to legally separate, you and your spouse create and sign a separation agreement. This agreement will address visitation, custody, and child support during the separation.

As with a divorce, the court will calculate child support based upon the children's needs, the amount of visitation, and the parents' incomes. Each state has varying laws on how child support is calculated. Be sure to check your local laws to understand these calculations or hire an experienced family law attorney to help guide you through the process.

Temporary Child Support During Legal Separation or Divorce

Depending upon the reasons for your legal separation, the court may temporarily order child support until the spouses decide how to proceed. Called pendente lite orders, these remain in place until the couple follows through with a divorce or decides to reunite.

Courts often also grant pendente lite applications while couples await a settlement in their divorce proceedings. Usually, the divorce process is lengthy. These temporary orders ensure both parents continue to fulfill their financial obligations to their children. The court then confirms the child support payments in the final divorce decree.

To receive a temporary child support order, the spouse requesting child support should file as soon as possible after the separation or after the decision to file for divorce. If the spouse desiring support doesn't approach the court with the request, then temporary child support will not be awarded.

Child Support After Legal Separation or Divorce

If you have a valid court order for child support, you must obey the court's order. Whether you're separated, divorced, or somewhere in the middle of the process, your child support order is legal and binding.

You can face negative consequences if you don't pay child support. For example, if you're behind on child support, a court can take money from your paycheck or bank accounts to settle your debt. Additionally, depending on the circumstances, you could lose your driver's license or even face jail time.

Going through a separation or divorce is stressful on all parties. Check your local state laws to understand how child support is awarded during a divorce or legal separation. Not all laws are the same. If you have court-ordered child support through a pending divorce or separation, be sure you comply with the payments, so you don't add another stressful issue to your list.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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