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

By Angie Gambone

Father isolated from mother and children

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In most states, married couples ending their relationship can do so either by getting divorced or by getting a legal separation. A legal separation is similar to a divorce in that it will result in a binding court order, which outlines your rights and responsibilities. This will include all issues with respect to your children, including parenting time and child support. This means that you can be -- and likely will be -- required to pay child support, even if you are legally separated but not divorced from your partner.

Legal Separation

A legal separation is very similar to a divorce. Some couples choose this route when they want to formally separate but wish to remain married, in the event they reconcile later or for other personal reasons, such as religion. A legal separation results in a court order that resolves all outstanding issues in the marriage. This includes the division of property, the payment of spousal support and the allocation of joint debts. It also includes all issues with respect to your children, including parenting time, custody and child support.

Separation Agreement

When a couple legally separates, they enter into a separation agreement. The agreement explains how each outstanding marital issue is to be handled after the separation. If children are involved, the separation agreement will address all issues with respect to those children. Child support will be calculated based on the income of one or both parents, depending on the state, as well as how much time each parent spends with the children. If the parents are unable to reach an agreement on their own, the contested issues will go before the court and a judge will make a determination for the parents.

Divorce Following a Legal Separation

Often, a couple with a legal separation will later move to convert that separation into an actual divorce. When this occurs, the court will use the terms of the separation agreement as a basis for the divorce itself. Therefore, if you are paying child support pursuant to a separation agreement, that support obligation will likely continue, once you divorce. However, keep in mind that child support is always modifiable if either parent's financial circumstances change. Therefore, it is always possible that your child support can increase or decrease in the future, based upon the facts of your case. Also, if you get divorced after having a separation agreement, you will probably continue to exercise the same parenting time with your children as you did during the legal separation.

States Without Legal Separation

Some states do not offer legal separation as an option. However, if you and your spouse remain married but live separate and apart, you may still be required to pay child support. Instead of a separation agreement, the custodial parent would file a motion in court that seeks child support and would serve that motion on the noncustodial parent. A hearing is typically scheduled where a judge gathers information regarding the children and parental income then issues a court order that specifies the amount of child support to be paid each month. The bottom line is that you can be required to pay child support, even if you stay married to your child's parent, with or without a formal separation agreement.

Temporary Support Pending Divorce

A divorce can take up to a year or more to complete. During this time, if the parties have not reached an agreement with respect to child support, the custodial parent can file a motion for temporary support. The custodial parent would serve the paperwork on the noncustodial parent and the judge would make a decision regarding the amount of temporary child support to be paid pending the finalization of the divorce. Once the divorce is complete, the temporary child support order goes away and child support is paid pursuant to the terms of the divorce decree. The important thing to remember is that a noncustodial parent can still be ordered to pay child support while a divorce is pending but not yet finalized.