Can I file for child support if we are still married and not leagally separated but I have our son full time?

Asked over 2 years ago - Oceanside, CA

My husband and I separated in April 2009 and I moved into my own apartment in June of 2010 but we contiunued to share custody until January 2011. In January 2011, he decided to take a job as an over the road truck driver and he is gone for around 2 to 3 months at a time and then shows up with no notice for around 5 days. I have our son all other times and receive no support other than he pays half of my son's preschool tuition directly to the school. On paper my income is pretty good (but I really don't have anything left by the end of the month to pay for legal support or a divorce right now) and I don't know what he makes or where he is. Can I still file a child support case?

Attorney answers (3)

  1. Mary J Quin


    Contributor Level 10


    Lawyers agree

    Answered . You will need to open a case in the county where you reside. Yes, you then can file a motion for Child Support but you will need to determine your timeshare with Dad. You may need to file a motion for both custody/visitation and support.

    Contact the self help department at your courthouse for assistance or seek legal counsel.

  2. Carla Leslie Hartley

    Contributor Level 13


    Lawyers agree

    Answered . I agree with my colleague's answer, but I must ask whether you have considered at least opening a case and filing for legal separation, in addition to support?

    You are unclear with how long the two of you were married. And, did not state at all what sort of property the community had during marriage. Even if its very little, it would behoove you to open the court case by filing a Petition for Legal Separation, in which you can also ask the court for orders for custody, visitation, and child support. If you are unsure of his income, I would not ask the court to make orders concerning spousal support on your Petition. One reason I encourage you to get moving with the Petition is to establish jurisdiction conclusively in California for your entire case.

    In addition to the Petition (FORM FL-180) you would want to file an Order to Show Cause (OSC) for child support and custody orders. The Petition establishes the case; the OSC is what gets you on calendar to actually be heard by a judge. The OSC is in two parts: FL-300 and FL-310. The FL-300 is more or less the cover sheet which tells the court what you are looking for; the FL-310 is entitled Application for Order and SUpporting Declaration. If you need more room for your supporting declaration, you can check the appropriate box under Item 10 and attach additional pages.

    I strongly suggest that you at least go to your local courthouse's self-help department to get information on precisely how to fill out these forms, and to get some information on your legal rights and responsibilities.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The... more
  3. Nicholas Basil Spirtos

    Contributor Level 20


    Lawyer agrees

    Answered . You can contact the child support office of the district attorney and they will help you without charge. Most courts also have a child support facilitator available.

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