Retroactive Modification of Support Orders

It is sometimes necessary for a spouse to ask the court for an interim support order before discovery on the other spouse’s income has been completed. In these situations, it can be beneficial to ask the court to make the interim support order retroactively modifiable, so that it can be retroactively adjusted when further discovery on the other spouse’s income has been obtained.

In Marriage of Gruen (2011), the Court of Appeal held that temporary child and spousal support orders ordinarily cannot be modified retroactively.  While such orders can of course be modified prospectively based on a change in circumstances, as a general rule retroactive modification is not permitted.  This is because temporary child and spousal support orders are considered final, appealable orders, and the trial court loses jurisdiction to make retroactive changes once such orders become final.

In Marriage of Freitas (2012), the Court of Appeal recognized an exception to this general rule against retroactive modification.  In Freitas, the trial court had expressly reserved jurisdiction to make retroactive changes to the interim support order, and the supported spouse had not taken his request for order off calendar.  The Court of Appeal ruled that, under these circumstances, the interim support order had not become a final, appealable order at the time of modification, such that it could be changed on a retroactive basis.

The Court of Appeal’s decisions in Gruen and Freitas indicate that, where a spouse contemplates that later-discovered evidence may warrant a retroactive increase in support, that spouse may want to consider asking the court to make the interim support order expressly modifiable on a retroactive basis.  Further, the spouse may want to consider continuing the request for order, so that it stays on calendar and prevents the interim order from becoming final and appealable.