Spousal and Child Support Rights While Still Legally Married
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed March 9, 2025
Legal Inquiry
Consumer Legal Issue
Me and my ex soon to be ex-husband are still legally married with no legal separation it's almost going on 2 years that we've been away from each other I've been struggling financially the whole time we both have 50/50 custody of our children but he is not helping me financially in any way and I'm still struggling and I need to know can I request help from the courts and of course there's more to the stories than that….
I need to know if I have rights. I have been separated from my husband going on two years, but we are still legally married. I have been struggling financially we both have 50/50 custody of our two children but he has kept property from me. I went to court and got my part through a restraining order but we had an agreement that we both get to claim a child on our taxes. But he changed his mind and claimed both. I have been struggling financially the whole time I've been away. I just lost my job and I'm trying to make it and I need to know my rights on what I'm allowed to claim. He's saying he had the kids with the most here but that's only because I was able to provide for them. I left because it was physically abusive.
Attorney Answer
Yes — you can ask a California court for spousal support and child support right now, without filing for divorce or legal separation, and the private understanding you and your husband had about who claims a child on taxes is not binding on the IRS by itself.
Being married does not require you to file for divorce before asking a court for help. California law lets a spouse bring an action for custody of the children of the marriage without ever filing a divorce or separation petition, and it separately lets a parent sue to enforce the child support duty and lets a spouse sue to enforce the spousal support duty. The fact that you have been living apart for two years does not, by itself, cut off either kind of support.
There is one wrinkle on spousal support. A person is not liable for supporting a spouse while the two are living separately by agreement, unless support was stipulated in that agreement. If you and your husband never made an agreement to live apart that dealt with support, that limitation likely does not apply to you — but whether such an agreement existed is a fact-specific question a court would decide.
Child support works differently. Both parents have an equal responsibility to support their children, and that responsibility does not depend on marital or separation status. Even with a true 50/50 schedule, California's guideline calculation still runs on both parents' incomes, so an income gap between you and him can produce a support order in your favor even though you split time evenly.
On the tax claim: an informal "we each claim one child" understanding is not enforceable against the IRS. Federal law generally treats the child as the qualifying child of the parent who had the child for more nights during the year — which is what controls the child-related credits — unless that parent signs a written IRS release handing the claim to the other parent. Where custody is genuinely equal and neither parent has more overnights, the tiebreaker generally goes to the parent with the higher income.
What you can do
1. File a request for order in family court asking for spousal support and child support — you do not need to file for divorce first.
2. Bring documentation of the custody split and both incomes so the court can run a guideline child support calculation.
3. Ask the court to address the property he kept, since that is a separate issue from support.
4. Talk to a tax preparer or attorney about whether you can still claim a child for the year in question and whether any written release was ever signed.
5. Because you mention a restraining order and past abuse, ask the family court about handling support, custody, and the domestic violence history together rather than in separate pieces.
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Frequently Asked Questions
Do I have to file for divorce before I can get spousal or child support in California?
No. California allows a spouse to bring a stand-alone action for custody of the children of the marriage, and separate actions to enforce the child support duty and the spousal support duty, without a divorce or legal separation case pending.
Does living separately from a spouse automatically end the right to spousal support?
No. The marital duty of support continues during the marriage. There is an exception where the spouses live separately by agreement and support is stipulated in that agreement — but absent such an agreement, either spouse can still ask a court to order support while the marriage continues.
Who gets to claim a child for tax purposes after parents separate?
Federal tax law generally treats the child as the qualifying child of the parent the child lived with for more nights during the year, unless that parent signs a written IRS release giving up the claim. A private agreement between parents about who claims which child is not enforceable against the IRS without that signed release.
