California Family Code § 3651: Modification of Support Orders

Plain-Language Summary

Overview: California Family Code § 3651 governs when and how child or spousal support orders can be modified (changed) or terminated. In general, a court can modify a support order “at any time” if it finds the change is necessary. However, courts typically require a material change in circumstances (such as a significant change in income, job status, or needs of the child) before revisiting a support order. This rule prevents constant re-litigation – you must show something has substantially changed since the last order.

No Retroactive Modification: Importantly, the law does not allow retroactive changes to support that has already come due. In other words, you cannot ask the court to forgive or reduce payments that were owed before you filed your request to modify. Any support amount that has accrued as arrears (past due) is essentially set in stone – a judge cannot retroactively cancel or decrease that debt. For example, if you lost your job in January but didn’t file a motion to lower support until March, you still owe full support for January and February. The modification, if granted, can only affect payments going forward from the date you formally requested the change.

Parties’ Agreements: Section 3651 also recognizes that parties may agree to limit modifications in certain cases. Notably, spouses can agree that spousal support will be “nonmodifiable.” If they put in a written agreement (or an oral agreement on the record in court) that spousal support cannot be changed or ended, then the court will honor that and not allow any future modification of that spousal support order. This is often done in divorce settlements – for example, agreeing to a fixed spousal support amount for a set period and specifying it can’t be changed by any court. However, without such a clear nonmodification clause, spousal support remains under the court’s jurisdiction to modify or terminate.

Special Circumstances – Military Duty: If a support payor is called up to active military service and deployed out-of-state, § 3651 provides some special protections. The service member can file a notice of their deployment and request an order modification without the usual formal motion. The law aims to adjust support to the changed income during deployment and prevent unfair accumulation of debt. In fact, if the deployed parent’s income decreases, the portion of child support that would not have been due (had an order been modified timely for deployment) won’t be counted against them in penalties, and no interest will accrue on that portion of the obligation. (However, if the court finds the service member unreasonably delayed seeking a modification, interest can be imposed.) The service member must notify the court and other parent upon return from duty and formally pursue any still-pending modification within 90 days of returning, or else lose the right to have the order changed under these special rules.

In summary, § 3651 allows flexibility to change support orders when circumstances change or justice requires, but it has important limits. You can’t undo the past – unpaid support can’t be retroactively forgiven – and spousal support can be locked in if the parties agree. Any request to change support should be made promptly when circumstances change, to avoid accumulating non-modifiable arrears. Courts retain ongoing authority to adjust support, absent an agreement not to, ensuring support orders remain fair over time.

Real-World Examples

Parent Loses Job and Seeks Lower Child Support: Imagine a father paying $1,000 per month in child support loses his job or has a significant pay cut. Under § 3651, he can file a request to modify the child support order because his ability to pay has changed. The court will require evidence of this material change in circumstances (such as proof of job loss and new income). If the court finds the change substantial, it can reduce his support going forward. However, importantly, the father will still owe any support amounts that were due before he filed for the modification – the judge cannot forgive those past due amounts. So if he lost his job in June but didn’t file to modify until September, he remains on the hook for June, July, and August support at the old rate.
Spousal Support with Non-Modifiable Agreement: In a divorce settlement, let’s say both spouses agreed in writing that spousal support of $500/month will last for 5 years and is “non-modifiable.” Two years later, the paying ex-spouse retires early and asks the court to end or lower the spousal support due to reduced income. Under § 3651(d), the court cannot grant that request because of the original agreement expressly making support non-modifiable. Even though the payor’s income dropped, the agreement stripped the court of power to change the support terms. The spousal support continues as originally agreed (unless the parties mutually modify their agreement).
Attempt to Forgive Back Support Fails: Suppose a mother is owed $10,000 in past-due child support from the father. They verbally agree that the mother will forgive the debt if the father resumes regular payments going forward. Later, the father tries to get the court to approve this forgiveness of arrears. The court will refuse because § 3651(c) forbids wiping out accrued support debt. Even though the parents made an agreement, it’s not enforceable as to the arrears. The father still owes the full $10,000 (though the mother could voluntarily decline to enforce collection, the legal debt remains). This example shows that once support is due, it can’t be retroactively modified or settled for less, absent a bona fide dispute about the amount.

Published Case Law on § 3651

In re Marriage of Tavares (2007) 151 Cal.App.4th 620 The court rejected the father’s attempt to retroactively modify a child support order.
In re Marriage of Goodman & Gruen (2011) 191 Cal.App.4th 627 – The Court of Appeal held that the trial court exceeded its jurisdiction by retroactively modifying a temporary support order without a pending motion, since temporary support orders cannot be modified retroactively.
In re Marriage of Freitas (2012) 209 Cal.App.4th 1059 – The court distinguished Gruen and upheld a retroactive modification where the trial court had expressly reserved jurisdiction and scheduled a further hearing, thereby permitting a retroactive adjustment in that specific circumstance.
Stover v. Bruntz (2017) 12 Cal.App.5th 19 – The Court of Appeal found that even a stipulated agreement for retroactive modification of child support was invalid, as it exceeded the court’s jurisdiction and violated public policy.
In re Marriage of Stanton (2010) 190 Cal.App.4th 547 – This Court of Appeal case underscored that a child support order may be modified only if there has been a significant change in circumstances. The father in Stanton sought to reduce his support payments. The court reaffirmed the general rule that “courts will not revise a child support order unless there has been a ‘material change of circumstances’” since the prior order. Because the change in Stanton’s situation was not sufficient, the court denied his modification request.
In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203 – In this case, a husband and wife had agreed post-divorce that the husband would pay a portion of owed support and the rest of the arrears would be forgiven. The Court of Appeal invalidated that agreement, holding that under § 3651(c)(1) a trial court has no authority to “modify or forgive” accrued support arrearages. The statute (and public policy) precludes wiping out past due support, even if the parties agreed to settle the debt. The court confirmed that the husband remained liable for the full arrears, because allowing the waiver would contradict the law’s prohibition on retroactive modifications.
In re Marriage of Jones (1990) 222 Cal.App.3d 505 – This case involved a spousal support order that was set to step down and terminate on a specified date. The paying spouse argued the court lacked jurisdiction to extend support beyond that date due to their settlement terms. The Court of Appeal disagreed, finding that the divorce agreement did not contain the required explicit language to restrict future modifications. Because the parties had not “specifically provided” that spousal support was nonmodifiable, the court retained the power to modify the amount and even extend the support period. In Jones, the court in fact extended the wife’s spousal support indefinitely (subject to further order) after concluding no non-modification clause existed. This case illustrates that without a clear nonmodifiability provision (as now described in § 3651(d)), spousal support remains open to modification.
In re Marriage of Bennett (1983) 144 Cal.App.3d 1022 – In contrast to Jones, the Bennett case is an example where the parties’ agreement successfully made spousal support nonmodifiable. The husband and wife had a written settlement stating that the spousal support obligation “shall be nonmodifiable and … no court shall have jurisdiction to modify said sum in any way”. The Court of Appeal held that this language was sufficiently specific to waive the court’s power to modify – meaning the support amount and duration as agreed could not be changed by the court. Bennett demonstrates the level of clarity required for a nonmodification clause (now reflected in § 3651(d)’s requirement of a written or on-record agreement).
In re Marriage of Comer (1996) 14 Cal.4th 504 – This California Supreme Court case dealt with an extreme scenario: a mother had concealed the children from the father for years, and large child support arrears accumulated. The father argued that the mother’s misconduct (hiding the children) should prevent her from collecting the back support. The Supreme Court acknowledged the egregiousness of the mother’s actions but held that a parent’s concealment of a child is not a defense to owing child support arrearages. In other words, despite the mother’s wrongdoing, the father was still responsible for the full amount of past support. Additionally, because the mother had received public assistance, the state (as assignee) could also pursue the father for reimbursement. Comer reinforces that support owed to a child cannot be negated due to parental behavior – the duty to support remains, consistent with § 3651(c)’s ban on retroactive modifications.

Full Text of California Family Code § 3651

(a) Except as provided in subdivisions (c) and (d) and subject to Article 3 (commencing with Section 3680) and Sections 3552, 3587, and 4004, a support order may be modified or terminated at any time as the court determines to be necessary.

(b) Upon the filing of a supplemental complaint pursuant to Section 2330.1, a child support order in the original proceeding may be modified in conformity with the statewide uniform guideline for child support to provide for the support of all of the children of the same parents who were named in the initial and supplemental pleadings, to consolidate arrearages and wage assignments for children of the parties, and to consolidate orders for support.

(c)(1) Except as provided in paragraph (2) and subdivision (b), a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.

(c)(2) If a party to a support order is activated to United States military duty or National Guard service and deployed out of state, the servicemember may file and serve a notice of activation of military service and request to modify a support order, in lieu of a notice of motion or order to show cause, by informing the court and the other party of the request to modify the support order based on the change in circumstance. The servicemember shall indicate the date of deployment and, if possible, the court shall schedule the hearing prior to that date. If the court cannot hear the matter prior to the date of deployment out of state, and the servicemember complies with the conditions set forth in the Servicemembers Civil Relief Act, Section 522 of Title 50 of the United States Code, the court shall grant a stay of proceedings consistent with the timelines for stays set forth in that section. If, after granting the mandatory stay required by Section 522 of Title 50 of the United States Code, the court fails to grant the discretionary stay described under that law, it shall comply with the federal mandate to appoint counsel to represent the interests of the deployed servicemember. The court may not proceed with the matter if it does not appoint counsel, unless the servicemember is represented by other counsel. If the court stays the proceeding until after the return of the servicemember, the servicemember shall request the court to set the matter for hearing within 90 days of return from deployment or the matter shall be taken off calendar and the existing order may not be made retroactive pursuant to subdivision (c) of Section 3653.

(c)(3) A servicemember who does not file a notice of activation of military service and request to modify a support order or order to show cause or notice of motion prior to deployment out of state nonetheless shall not be subject to penalties otherwise authorized by Chapter 5 (commencing with Section 4720) of Part 5 on the amount of child support that would not have accrued if the order had been modified pursuant to paragraph (2), absent a finding by the court of good cause. Any such finding of good cause shall be stated on the record.

(c)(4) Notwithstanding any other law, interest shall not accrue on that amount of a child support obligation that would not have become due and owing if the activated servicemember modified the support order upon activation to reflect the change in income due to the activation. Upon a finding by the court that good cause did not exist for the servicemember’s failure to seek, or delay in seeking, the modification, interest shall accrue as otherwise allowed by law.

(d) An order for spousal support may not be modified or terminated to the extent that a written agreement or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination.

(e) This section applies whether or not the support order is based upon an agreement between the parties.

(f) This section is effective only with respect to a property settlement agreement entered into on or after January 1, 1970, and does not affect an agreement entered into before January 1, 1970, as to which Chapter 1308 of the Statutes of 1967 shall apply.

(g)(1) The Judicial Council, no later than 90 days after the effective date of the act adding this section, shall develop forms and procedures necessary to implement paragraph (2) of subdivision (c). The Judicial Council shall ensure that all forms adopted pursuant to this section are in plain language.

(g)(2) The form developed by the Judicial Council, in addition to other items the Judicial Council determines to be necessary or appropriate, shall include the following:

(A) The date of deployment and all information relevant to the determination of the amount of child support, including whether the servicemember’s employer will supplement the servicemember’s income during the deployment.

(B) A notice informing the opposing party that, absent a finding of good cause, the order will be made retroactive to the date of service of the form or the date of deployment, whichever is later.

(C) Notice that the requesting party must notify the court and the other party upon return from military duty and seek to bring any unresolved request for modification to hearing within 90 days of return, or else lose the right to modify the order pursuant to this section.

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