Retroactive Support Orders Modification Gruen Freitas

Retroactive Support

Retroactive Support Orders Modification Gruen Freitas/Photo by cottonbro from Pexels


You and your ex are in the middle of a divorce.  Your ex is self-employed and pays himself a salary.

As is usually the case in divorce, you cannot agree on what his “income” is available to pay support.

Discovery needs to be done.  But there is a court hearing coming up.  Should you temporarily agree to a support amount, pending modification, once discovery unveils the correct income?

What if it turns out later that he is suppose to pay you MORE?  Do you get to go BACK and recoup the months you got less?


For example, let’s say you agree that he pays $5,000 per month in support, starting September 1, 2021.  Later, if it turns out he owes you $6,000 a month, can you recoup the extra $1,000  you were suppose to be getting from September 1, 2021?

Original Child Support Orders

An original child support order can be made “retroactive to the date of filing the petition, complaint, or other initial pleading,” or to the date of service if the payor was not served within ninety days.

California Family Code � 4009. Original order made retroactive_

For example:

September 1, 2021:   You file for divorce.

October 1, 2021:    You file a Request for Order (RFO) requesting child support, in the amount of $5,000 per month.

December 5, 2021:  You serve your ex with papers, giving him notice.

January 1, 2022:     Court hearing on your RFO.   You served your ex with these papers on December 5, 2021.

At the court date (January 1, 2022), Judge can order $5,000 per month starting on any of these dates:

September 1, 2021 (date you filed the divorce);

October 1, 2021 (date you filed the RFO), or

December 5, 2021 (date he was served, because it was after 90 days from when you filed).

Ovbviously, for the payee, the earlier date the better, because they would get all these arrears paid.

Original Spousal Support Order

An order for spousal support in a proceeding for dissolution of marriage or for legal separation of the parties may be made “retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date.”

California Family Code � 4333. Order made retroactive to date of filing notice_

An original order of spousal support is different than an original order of child support, because unlike child support, it cannot backdate to the initial filing of the Petition.  In the prior example, the earliest date would be the date of the filing of RFO.

Original Support Orders v Modification of Support Orders

Unlike original orders, subsequent modified orders can only backdate to the date of the filing of the RFO for modification.

“An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date…”

California Family Code � 3653. Order made retroactive_

So I have to File a RFO to Preserve Retroactivity?

Being forced to file an RFO to preserve retroactivity is no fun, because it costs money.  So can the parties simply AGREE to retroactively modify it?

Enter two important cases:  191 Cal.App.4th 627, D055950, In re Marriage of Gruen 


209 Cal.App.4th 1059, D060281, In re Marriage of Freitas

IRMO Gruen

In Gruen, the trial court made temporary support orders “on an interim, without prejudice basis, pending the next hearing”.

It then appointed a forensic accountant to determine H’s cash flow available for support.

H did not file a request to modify that order.

9 months later, at a review hearing on the accountant’s report, the court made new support orders  retroactive to the effective date of the original support orders.

The Court of Appeal reversed, holding that the retroactive modification exceeded the court’s jurisdiction; and, that to the extent the new orders were prospective, they were improper because no OSC or motion requesting modification was pending. “The court’s view that it could always retain jurisdiction to retroactively modify a temporary order was mistaken.” ( Gruen, supra, 191 Cal.App.4th at 639.)

IRMO Freitas

Different case with similar facts.  Parties agreed on temporary order, later modified.

Unlike Gruen, however, the Freitas court specifically reserved jurisdiction to take another look at W’s income based on any such additional evidence and to retroactively amend the original support order.

Notwithstanding such reservation, at the subsequent hearing (triggered by H filing a new OSC to modify support retroactively after stipulating that the original OSC could go off calendar) the court concluded that pursuant to Gruen, it lacked jurisdiction to take another look at W’s income. H appealed.

The Court of Appeal reversed, holding that under the facts of Freitas, its ruling in Gruen did not preclude the trial court from retroactively modifying its earlier support ruling:

[T]he trial court expressly reserved jurisdiction to amend its original support awards as to September and October 2010 based on further consideration of evidence pertaining to [W’s] income. Thus, unlike in Gruen, in the present case, the parties’ clear expectation was that the original support awards were not final as to these months.

Retroactive Support Orders Modification Gruen Freitas – IMPORTANT!

After reading these two cases, we can conclude these things.

  1.  Do NOT expect the Court can automatically retroactively modify support.  Explicitly reserve jurisdiction.
  2. To avoid Gruen’s unfair ruling, put in a “Gruen” waiver.
  3. Wise to reserve a date for look back not to exceed a year for RFO Mod to be filed, if not filed, Court loses jurisdiction.
Sample Language

The Court retains jurisdiction to retroactively modify spousal support to the effective date
of August 1, 2020, and the parties waive any objection to that reservation of jurisdiction pursuant to
In Re Marriage of Gruen.

If neither party files a Request for Order seeking to modify spousal support by August 1, 2021, then the Court’s jurisdiction over retroactive spousal support as set forth herein shall expire. If a party files a Request for Order on or before August 1, 2021, spousal support shall be ordered retroactive to August 1, 2020.

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