Can I Receive Child Support During Legal Separation?

The financial impact of a divorce can be significant. One of the biggest issues a couple with children will face when they decide to part ways concerns child support. However, child support isn’t only something that must be determined in a divorce. Whether spouses dissolve their marriage, were never married, or they choose to legally separate, both parents have an obligation to financially support their children.

What is Legal Separation in California?

California recognizes legal separation. While separation is not a requirement to obtain a divorce, many couples might choose to legally separate before parting ways permanently. They may also opt for legal separation for religious reasons, or if they do not meet the residency requirements to divorce in California.

When a couple legally separates, they are still married under the law. If spouses choose to divorce after the Judgment of Legal Separation has been issued, a separate case must be filed to dissolve the marriage. While marital status isn’t affected by legal separation, couples can live apart but still have the legal, tax, and healthcare benefits of marriage.

Child Support During Legal Separation

A legal separation deals with the same issues that must be determined in divorce — including child custody and support. Specifically, child support refers to the amount of money that is paid by the non-custodial parent to the custodial parent to provide for the child’s basic needs, living costs, and medical expenses. Child support applies regardless of whether a couple is separated or divorced.

California Family Code Section 4053 sets forth the statewide child support guidelines that must be followed when a court orders child support. While the best interests of the child are always a top priority, the guidelines also state the following:

• Each parent’s income and level of responsibility should be considered
• Each parent should support their children in accordance with their ability to do so
• Children should share in the standard of living enjoyed by both parents
• The financial needs of the children should be satisfied through private financial resources as much as possible
• It is presumed that the parent with primary physical responsibility for the children contributes a significant portion of available resources for the children’s support
• Fair and efficient settlements of conflicts between the parents are encouraged to minimize the need for litigation
• Child support orders must ensure that children received sufficient support to reflect the high costs of living in the state

Spouses are free to reach an agreement on their own, outside of court, regarding child support. A separation agreement can allow couples to address various issues that will arise during the period of separation, such as where the children will reside, how much time the children get to spend with each parent — and the amount of child support agreed upon. If couples cannot settle the issue of child support on their own or through alternative dispute resolution, a judge will issue an order based on the parents’ income and the amount of time each physically spends with the child.

Can You File for Child Support if You are Not Divorced or Legally Separated?

Even if you are not legally separated from your spouse — or in cases where parties were never married and have parted ways — you can still file for child support. An underlying separation or divorce action is not necessary to obtain support payments from the non-custodial parent. To open a separate case for child support without commencing a divorce or separation, a petition must be filed with the court.

Significantly, if you are not married to the other parent, a parentage action must first be filed. This means that you are requesting the court to legally establish who the other parent is. You may also ask for custody, visitation, and support at the same time.

Once the request for a child support or parentage order has been filed with the court, a hearing will be scheduled. The child’s other parent will need to be served with the papers at least 21 days before the hearing is to be held. If the Department of Child Support Services will be collecting child support, it must also be personally served. Proof of service must be filed with the clerk’s office as soon as possible.

The judge will follow California’s child support laws to determine the appropriate amount that should be paid — the judge can also issue an order regarding the child’s health insurance and how parents will pay healthcare costs not covered by insurance. The parent asking for a child support order may also request that childcare costs and other expenses related to the child’s needs be included in the order.

Contact an Experienced Fresno Divorce and Family Law Attorney

If you’re considering legal separation and have concerns about child support, it’s best to consult with a knowledgeable divorce and family law attorney. The Law Offices of Rick D. Banks has been dedicated to helping clients in Fresno and the surrounding area with legal separation and family law matters for more than two decades. To schedule a no obligation consultation, call (559)222-4891.