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Judgment Spousal Support May Not be Retroactive to the Date the Petition was Filed Unless the Spouse Had Previously Requested Temporary Spousal Support

Before the divorce trial commenced, the parties’ divorce lawyers settled several issues at their Mandatory Settlement Conference, and later stipulated to judgment spousal support.  Still, the issue as to whether the spousal support order could be made retroactive remained an outstanding issue for trial.  Specifically, Wife sought an order that the spousal support payments be made retroactive to the date she filed her Petition for Dissolution.

The divorce court denied Wife’s divorce lawyer’s request for a permanent spousal support order made retroactive to the date she filed her Petition for Dissolution, citing the absence of a separate request for temporary spousal support.  The divorce court ordered judgment spousal support without any retroactivity, and Wife’s divorce lawyer appealed.

The appellate court distinguished awards of temporary spousal support from awards of permanent judgment support:  the purpose of judgment support is meant to equitably apportion income between the parties, while the objective of temporary spousal support is “to allow a spouse to continue to live in the manner to which he or she is accustomed during the time the dissolution is pending,” and provide funds to that spouse to properly litigate the dissolution.

Family Code Section 4333 governs orders for judgment support, and limits the retroactivity of such orders to the date of the request for order of spousal support or to any subsequent date. Temporary spousal support orders, on the other hand, bear no such limitation, and the court has discretion to make a temporary spousal support award retroactive to the date on which the Petition for Dissolution was filed.

Wife’s divorce attorney admitted that she never requested temporary spousal support, but wanted the court to treat her Petition for Dissolution as her “notice of motion” for spousal support.  The appellate court agreed with husband’s divorce lawyer and declined, and affirmed the trial court’s order that spousal support would not be made retroactive to the date Wife filed her Petition for Dissolution as a “notice of motion” under Family Code 4333,.

In re Mendoza v. Cuellar (2017) 14 Cal. App. 5th 939