“Do you have to be divorced to get child support – or can you be legally separated?”

The above is one of the most common questions law firms get when it comes to child support and divorce.  Legal separation and divorce are not the same things, even though both mean the parties are asking the Court and the law to recognize the couple’s split.  Here’s what you should know about claiming and paying child support (also known as child maintenance) as well as the divorce or separation that often goes along with it.

Do You Have to Be Divorced to Get Child Support (or Can You Be Legally Separated)?

The term “child support” or “child maintenance” refers to funds paid in order to facilitate the financial and medical care for the child in question. Usually, divorce is what most commonly gives rise to the need for the payment of child support and maintenance, and the process happens through the court.

The term “child support” or some states use “child maintenance” to refer to the money paid by one parent to the other to help financially support their children. Anytime two parents are separated the court can order child support.  It can be ordered in a divorce action, legal separation action, paternity or custody action, or even an action solely regarding child support. There is no requirement that the parents were ever married to order child support and no requirement that the parents aren’t married in order to receive child support payments.

Defending a child support claim doesn’t always mean that the party disagrees with child support having to be paid, but it can refer to the amount. Oftentimes, divorced parents will seek legal advice regarding the amount they believe they are owed. In Nebraska, the Nebraska Supreme Court Guidelines are the method used to calculate the amount of child support.  The method to calculate child support varies by state.

What is Legal Separation?

Divorce is when two married parties file a court action to sever their legal marriage ties, usually with the aid of a lawyer.  The final divorce decree divides the parties’ assets and debts and addresses child custody and child support issues regarding the parties’ minor children.

Legal separation is when the parties are to remain legally married but no longer reside together and no longer share financials directly.  Sometimes parties choose to do this when they wish to remain married but have difficulties residing together or difficulties trusting each other with their financials.  Other times, parties choose to do this due to not wanting to be divorced for religious reasons or in order to continue to have the other party qualify as a spouse for health insurance coverage purposes.  In a Decree of Legal Separation, the Court may address some financials, order custody, order child support and/or alimony, but the parties remain legally married.

Child Support Before Divorce

The custodial parent doesn’t have to file for divorce before beginning a child support case. If you and your spouse aren’t ready to initiate divorce but aren’t residing together, the custodial parent may file a complaint or petition with the court to establish a temporary child support order. Your state’s child support enforcement agency or local prosecutor may offer assistance with filing this complaint about child support.  If other issues need to be addressed, such as custody or alimony, the party generally need to file their own action and often as a legal separation action if the parties are married and not wanting to divorce.

What Other Circumstances Allow for Child Support Claims

Even though it’s called child support, it can still apply to those over what’s called the “age of emancipation” or “age of majority” in your state.  For example, a teenager still in high school or a special needs child may qualify for additional support after the age of majority in some states.  In Nebraska, child support generally terminates upon the child reaching the age of majority at 19 years old, regardless of the child remains in high school or has special needs.

States Without Legal Separation

Some states do not offer legal separation as an option. However, if you and your spouse remain married but live separately and apart, you may still be required to pay child support. 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.

Additional Reading: State of Nebraska Judicial Branch Article 2: Child Support Guidelines.

Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha

Child Custody | Child Support | Divorce Lawyers Omaha

If you are looking for an attorney in a child support case in Omaha, Nebraska or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, Lancaster), contact our office to set up a consultation.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.