Before 1999, child support orders could only be made retroactive to the date of filing the request, and not to the date of filing the Petition.  County of Santa Clara vs. Perry.  In 1999, the Legislature amended Family Code Section 4009 to give Family Courts the discretion to make child support orders retroactive to the filing of the Petition or other initial pleading.  However, despite Section 4009, many Courts choose to limit the retroactivity of child support orders to the date the request for support is filed, rather than the date of the initial petition or pleading.  For this reason, unless the parents are co-habitating, sharing income and expenses or making a voluntary support payment, it is a good practice to consider filing a child support request as early as possible in the litigation.

Family Code Section 3600 recognizes the right of a party to request temporary spousal support while the case is pending and before a Judgment is entered.  Family Code Section 3600 does not mention retroactivity.  However, in Marriage of Dick (1993) the Trial Court made a temporary spousal support order retroactive to the filing of the Petition.  The payor/husband appealed that the decision arguing that retroactivity should only reach back to the filing of wife’s motion or request for a temporary spousal support order.  Family Code Section 4333 (formerly Civil Code Section 4801).  However, the Appellate Court concluded that 4333 did not apply to temporary spousal support;  and had the legislature intended to limit retroactivity for temporary spousal support it would have done so.

In 2017, the Court of Appeals decided Mendoza v. Cuellar.  In Mendoza v. Cuellar, the wife petitioned for a dissolution of marriage but never made a request for temporary spousal support.  The parties then settled the issue of Judgment Support and agreed to submit the issue of retroactivity to the Trial Court.  The wife argued that the Trial Court had jurisdiction to award her support retroactive to the filing of her initial pleadings.  The Trial Court denied the wife’s request for retroactive spousal support on the basis that the wife never sought temporary spousal support.  This holding was affirmed on appeal. Based upon Mendoza v. Cuellar, where temporary spousal support is appropriate the better practice is to request a support order while the case is pending.

JUDGMENT SPOUSAL SUPPORT The Court in Mendoza v. Cuellar, denied the wife’s request for a retroactive support order at Trial, finding that Family Code Section 4333 controls.  Family Code Section 4333 states: “An 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 any subsequent date.”  Mendoza holds that Family Code Section 4333 controls the permissible date on which a judgment spousal support order may begin.  However, Judgment Spousal Support orders rarely come up because of the filing of a “Notice of Motion or Order to Show Cause.”  Judgment Spousal Support is typically determined without a Motion or Order to Show Cause, instead, it comes up as an issue for Trial or by agreement at the end of the case.  A literal reading of Mendoza v. Cuellar seems to say that before the Court decides a Judgment Spousal Support issue a party must file a formal motion, which is contrary to current practice.

Support orders are an important part of almost every Family Law case.  How these matters should be handled is something that requires careful consideration and should be discussed with an experienced Family Law attorney.

Do you want to hear more about the latest information about retroactive support orders in divorce? If you have questions about divorce information, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handle legal issues regarding adoption, annulment, mediation, child custody, child and spousal support, community property, visitation, separation, and domestic violence as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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