Permanent Spousal Support Orders Are Not Retroactive to Date of Filing Petition for Dissolution, but Temporary Spousal Support Orders Are

In Mendoza v. Cuelar a recent divorce case in Southern California a Wife’s request to the family law court to order permanent spousal support retroactive to the filing date of her petition for marriage dissolution was denied. In affirming, the Court of Appeal stated: “Unlike with temporary spousal support, a court’s discretion to make a permanent spousal support order is limited by Family Code section 4333. The statute allows retroactivity only to the date of filing of the notice of motion or order to show cause regarding permanent support, not the initiation of the action.” (In re Marriage of Mendoza and Cuellar (Cal. App. 4th Dist., Div. 3, Aug. 25, 2017) 2017 Cal. App. LEXIS 743. 

TAKE AWAY FOR CLIENTS: While temporary spousal support orders are retroactive to the date of the filing of the petition permanent (also known as long term) spousal support is not retroactive to the petition. California law provides for two distinct types of spousal support—temporary and permanent.  “Awards of temporary spousal support do not serve the same purpose, nor are they governed by the same procedures, as awards for permanent spousal support.  Temporary support and permanent support differ fundamentally in nature and function.” (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166.)  Whereas permanent support is intended to make a fair division of income between the parties, temporary support is meant to allow a spouse to continue to live in the manner to which he or she is accustomed during the time the divorce action is pending. Temporary support must be sought with a request for orders or an agreement by the parties on a support amount which the court then formally orders.  Permanent support can be agreed upon or determined at trial. Temporary and permanent support amounts are determined in different ways by the court. For more information see my post here on the difference between permanent and temporary support.

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