Can I file for child support if my husband and I are only separated?
He also has a pending motion to modify in another state from a previous marriage with two children, we have two children as well, will those proceedings supersede or effect mine?
3 attorney answers
You can file a petition with your local Juvenile and Domestic Relations District Court for child support. The intake office there can help you, or you can hire an attorney to help you draft and file the appropriate pleadings. Child support is calculated using both your income and your husband's income, and is based on the number of children you have in your custody. He can get a credit for the support he pays to his other children. This reduces his income for the purpose of making the support calculations.
You do have to be careful in this situation, however, because your husband is deployed. He is protected by law for being an active duty member of the military. You should speak to a family law attorney about how to properly serve him and obtain relief, since it can be tricky when a spouse is on active duty.
Keep in mind that the sooner you file your petition for child support, the earlier the Court can award it. Even if your hearing is delayed due to your husband's deployment, the Court can "back date" the support award to the date you filed your petition, so don't wait to seek an attorney's advice.
I agree with my colleagues that your husband's military service poses challenges for your child support motion. You need to consult with a local family law attorney to make sure that proper service is made. Without proper service, the court will take no action against him. If he has an existing court order to support children he has from a prior relationship, that could affect the amount of child support he could be ordered to pay to you.
Once you are separated you can file a Petition for child support in Juvenile and Domestic Relations District Court without filing for divorce (which is filed in the Circuit court). However, the process is more complex since your husband is currently deployed. You should contact an attorney to assist you with the process.
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