Q. Last year I filed for divorce after my wife moved out with our twin
daughters. My wife got orders for child support for our twins, and spousal
support. We've decided to try marital counseling, and she and the
girls are going to move back in with me. I asked her if she would agree
to cancel the support orders, but she says she isn't willing to do that.
What happens to the support orders after they move back in? I mean, if
we get into some argument and she moves out again, will I still owe her
the court ordered support even though they were all living with me and
I paid all the bills?
Luke, San Francisco
Greetings Luke -
Thanks for bringing this question to my attention and you are smart to
do so - in my experience, most people make decisions around separation,
divorce and reconciliation without first seeking family law legal advice,
and then often suffer for not becoming informed about the legal or practical
consequences of their decisions.
Family Code section 3603 states the general rule that if a person who is paying child support successfully
seeks to later reduce or terminate it, the support that accrued prior
the date of filing of your application still remains due and owing. (Family Code section 4333 does the same thing as to spousal support). Thus, if someone fails to
act - for instance on the assumption, or on the oral promise, that support
is being suspended or terminated for some reason (like you are getting
back together) and later that agreement blows up - until a motion to the
Court is filed, support will continue to accrue and if the Court does
change the amount of the support, that modification (or termination) can
only affect support that became due after the filing date.
Also, FYI, most support orders are made payable one-half on the 1st and
one-half on the 15th day of the calendar month, and if you do file a Request
for Orders modifying support and it is granted in your favor, Courts typically
will only make the new order retroactive (i.e., effective) back to the
1st or 15th day of the month that next follows the date you filed. For
instance, if you file a modification request on September 1 and the matter
is heard in October, most courts will make the new amounts payable as
of September 1. But if you file on September 3, it is likely that new
order will not kick in until September 15. Thus, try to file your RFO
at the earliest date.
The statute that applies to your situation is
Family Code section 3602, and you might characterize it as an exception to section
3603. Section 3602 provides that, unless your support orders say otherwise,
the obligation to pay child or spousal support is not enforceable "during
any period in which the parties have reconciled and are living together."
If this attempt to reconcile doesn't work and your wife later contends
that you owe her the back support that you didn't pay when everyone
was in the same house, it will become a factual issue for the Court as
to whether or not her returning was a reconciliation sufficient to trigger
the suspension of payments.
The statute is somewhat ambiguous, however, in that your wife could argue
that all it means is that she could not get enforcement orders during
the reconciliation period but that the monies still accrue, while you
would argue "no, the amounts that otherwise would have been due are
suspended and are never owed." I cannot locate a reported appellate
decision on the subject, but I think your argument would be more persuasive
and, since family law courts are courts of equity, it would be manifestly
unfair that you potentially pay twice and your wife therefore receive
section 3601, which addresses the termination of support orders, so it makes greater
sense that the legislature was next talking about suspension of support
3602. Section 3601(b) makes termination of child support "subject to"
the circumstance carved out by 3602, which likewise implies that support
orders don't accrue if the parties or parents reconcile. Finally,
this section is entitled "Reconciliation" and this label implies
that the marriage has resumed and that parties are no longer separated.
Particularly as to spousal support, the reason for alimony evaporates
where parties are not living separate and apart; this statute is within
a part of the Family Code that primarily addresses child support, so an
argument can be made that it does not apply to spousal support - I think
that would fail, however, because this "Chapter" in the statutes
is entitled "Spousal and Child Support During Pendency of Proceeding."
One reported appellate decision (Marriage of Goodman & Gruen (2011) 191 Cal.App.4th 627) applied section
3603 to both child and spousal support orders, so section 3602 must apply to
spousal support too, despite the child support wording of the neighboring statutes.
Please note, this statute is not restricted to marriages but will apply
to unmarried parents who cohabit (as with paternity support orders).
As is common in California matrimonial law, this is another area where
parties can litigate to their heart's content. Obviously, the best
way to anticipate and avoid a future hearing or argument about what really
happened (and all the attendant attorney fees) is to enter into a written
Stipulation that states that the support obligation will not accrue while
you are living together. Stipulations get filed with the Court, and usually
are signed by a Judge. If the other party won't sign such a stipulation,
then a written agreement between the two of you that doesn't get filed
would be a prudent thing to obtain, if you can, to submit the Court later.
It is an unfortunate fact that most people tend to be timid about requests
for something in writing in these circumstances, which are admittedly
It may be easy enough to prove that you have resumed living together, but
does that mean that you've "reconciled" within the meaning
of section 3602? I would look to the law on
date of separation for cases that explain what proves or refutes an intention to end the
relationship, if you wind up having a battle. I'd interpret "living
together" as living under the same roof and difficulties to your
defense can arise where the other person maintains their another residence
while moving back in with you, possibly part-time. Also, many people in
relationship distress are "on again" "off again" and
that sort of behavior will muddy and confuse the waters as to whether
you really had reconciled or could be considered to be living together.
That may mean that many months downstream after believing you were off
the hook as to the Court support orders, suddenly this unexpected financial
obligation surfaces to snag you in the wallet.
As always, the permutations of fact patterns are infinite in the land of
relationship-end. It never hurts to (secretly?) seek competent family
Be safe out there!
Author: Thurman W. Arnold, III, CFLS