Legal Separation & Child Support

By Heather Frances J.D.

In many states, legal separation is a formal process that resembles divorce but stops short of dissolving the marriage, though some states don’t recognize legal separation at all. Depending on your state’s separation laws and child support process, child support orders may be part of the legal separation or can be done separately.

Child Support Obligations During Legal Separation

If your state allows legal separation, your legal separation agreement will likely address the same topics a divorce decree would, such as child custody, alimony, distribution of marital assets and child support. Your agreement may then be approved by a court that will issue orders enforcing that agreement. Depending on your state’s laws, you may have the same obligation to pay child support during your legal separation as you’ll have if you get divorced.

Calculating and Paying Child Support

If your state’s legal separation process involves obtaining a court order – as in states like New York, Arizona and California, for example – your child support arrangements will look very similar to those for divorced couples. The court in these states uses the same formula used for divorcing couples to calculate the amount of child support payments. Depending on the state, the court may also order that payments must be made directly to the state’s central processing agency. Your state’s laws may also allow you and your spouse to agree to a child support amount higher or lower than what the state would require.

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Child Support Obligations Without Legal Separation

Even without any kind of court order in place, parents have a legal responsibility to provide for their child’s needs. Parents who stop providing all support to their children may be subject to claims of abandonment or neglect. Depending on your state and situation, you or your spouse may be required to pay court-ordered child support even if your separation is not formalized. For example, California law allows a judge to enter a child support order based on a parent’s Petition for Custody and Support of Minor Children, even if the parent does not wish to file for legal separation or divorce.

Retroactive Child Support

Some states, like Arizona, permit courts to award retroactive child support payments as part of another court process, such as a divorce or formal legal separation. If your state allows this, the custodial parent could receive child support, dating back to the date the spouses physically began living apart, as well as future child support. For example, if you and your spouse began living apart in April 2011 but didn’t file for legal separation until April 2012, your legal separation order may include a full year of retroactive child support in addition to the monthly child support payments that would begin in April 2012.

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