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 a windfall.
Also, 3602 follows section 3601, which addresses the termination of support orders, so it makes greater sense that the legislature was next talking about suspension of support orders in 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 quite delicate.
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 law advice!
Be safe out there!
Author: Thurman W. Arnold III, CFLS