Retroactive Spousal Support: How It Works

Flicker, Kerin, Kruger & Bissada LLP

Spousal support, sometimes referred to as alimony, is a payment made by one spouse to another during and after the divorce or legal separation process. Spousal support orders may be temporary or permanent and, in some cases, may even be ordered retroactively, so they apply to a period before the order was issued. 

Retroactive spousal support is more common than many people realize. Below, we explain retroactive spousal support and California’s legal precedents for ordering it in a divorce or legal separation. 

What is Retroactive Spousal Support?

Retroactive spousal support consists of the owed funds that accrued before a judge issued a temporary support order. 

Pendente lite spousal support (more commonly known as “temporary spousal support”) is court-ordered financial support from one spouse to the other while the divorce proceedings are pending. Permanent support (also known as a “spousal maintenance” order) is ordered by the court at the end of a divorce proceeding (i.e., upon a final determination by the court).

A request for temporary spousal support is typically made at the beginning of divorce proceedings by filing a motion with the court called a “Request for Order.” In some circumstances, spouses may not concurrently file a request for spousal support with their Petition for Dissolution of Marriage. In this instance, the spouse requesting support (commonly referred to as the “supported spouse”) may file a motion to request the court order spousal support retroactive to the date they filed the divorce or legal separation petition. 

Is Retroactive Spousal Support Mandatory or Discretionary?

Pursuant to Family Code section 3600, the court may order a party to pay temporary spousal support to the other party during the pendency of the dissolution or legal separation proceedings. Temporary spousal support is intended to maintain the status quo pending a final judgment. In determining if temporary spousal support is appropriate, as well as the amount of temporary spousal support, the court typically looks to a guideline formula that assesses the needs of both parties and their respective abilities to meet those needs. 

The Family Code is silent regarding the retroactivity of original temporary spousal support orders. In Marriage of Dick (1993) 15 Cal.App.4th 144, 166, the Court of Appeal upheld an award of temporary spousal support retroactive to the date wife filed her Petition for Legal Separation, in which she requested spousal support, even though she did not file a formal motion with the court requesting temporary spousal support until a year and a half later. 

On appeal, the husband argued that the court could only order temporary spousal support retroactive to the date the wife filed a motion requesting temporary spousal support. In support of his position, the husband cited Family Code section 4333, which governs permanent spousal support and provides that “[a]n order for spousal support in a proceeding for dissolution of marriage or for legal separation of the parties may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date.” 

The Court, however, concluded that if the Legislature intended to limit the retroactivity of a temporary spousal support award to the date on which the motion for order to show cause was filed, it would have expressly stated such, as it had in section 4801 (replaced in relevant part by Family Code section 4333), but since it did not, the Court would not imply such a limitation. 

Generally, the supported spouse will interpret the holding in Dick as a grant of discretionary authority for the Court to order temporary spousal support retroactive to the date of filing the petition rather than the date the motion requesting it was filed. 

What Does the Court Consider When Deciding on Retroactive Spousal Support?

The court may consider a number of factors when deciding whether to order retroactive spousal support, including the financial standing of each spouse, whether the supporting spouse made any informal payments to the supported spouse during the time in question, and whether a retroactive spousal support order places an undue burden on the paying spouse. After taking these factors into account, the judge may order retroactive spousal support to be paid in conjunction with temporary support for the duration of the temporary support order. 

Consult With Skilled Family Law Attorneys Regarding Retroactive Support Orders

Retroactive spousal support orders may become a significant point of contention in high-conflict divorces. Parties concerned about potential retroactive orders may consult with the expert divorce attorneys at Flicker, Kerin, Kruger & Bissada LLP to better understand their options during their divorce or separation. 

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