Hello, this is attorney Eom Sang-yoon of Cheongchul Law Firm.

While a divorce lawsuit is pending, the court sometimes issues an interim order directing one spouse to pay a fixed amount of living expenses so that the financially weaker spouse and the children can maintain their livelihood. In doing so, the court may order a single monthly payment without distinguishing between spousal support and child support.

The problem arises when the dispute over the divorce itself has ended but litigation over property division or child support continues. If the interim order requires living expenses to be paid ‘until the judgment on the merits becomes final,’ must the same amount continue to be paid until every claim is resolved? And if it has already been paid, can part of it be recovered?

In Supreme Court Decision 2024Da255113 rendered on October 1, 2026, the Court held that where an interim order directs the performance of several obligations, the point at which each obligation ceases to be effective must be determined individually, taking into account the substantive right of the other party corresponding to that obligation. Accordingly, once the divorce claim becomes final first and the spousal support claim between the spouses is thereby extinguished, the spousal support portion of the interim order likewise ceases to be effective at that point. This column examines the decision and the points to keep in mind in divorce litigation.

Background of the Case: Monthly Living Expenses of KRW 18 Million Paid Until the Litigation Ended

In this case, claims for divorce, property division, and child support between the spouses were litigated together. During the proceedings, the court issued an interim order requiring the plaintiff to pay the defendant KRW 18 million per month in support until the judgment on the merits became final. This amount covered all living expenses, including child support.

The plaintiff paid the fixed monthly amount under the interim order from around February 2020 to around June 2022. Meanwhile, as to the divorce claim, the first-instance court had granted only the defendant's divorce claim and the plaintiff did not appeal that part, so the divorce claim became final on February 17, 2022, the date the appellate judgment was rendered. The remaining claims for property division and child support proceeded to the Supreme Court, where the entire litigation concluded on June 30, 2022. The plaintiff then argued that because the divorce claim had become final earlier and the duty to support the spouse had thereby been extinguished, the spousal support paid after that date should be returned.

The lower court rejected the claim for return, reasoning in part that the interim order had directed payment until the judgment on the merits became final and that the order itself constituted a legal basis for the payments. The Supreme Court, however, held that once the divorce claim became final on February 17, 2022, the spousal support claim between the spouses was extinguished at that same point, and the spousal support portion of the corresponding interim order likewise ceased to be effective at that point. As a result, among the sums paid from February 18, 2022 to June 30, 2022, the portion corresponding to spousal support constitutes unjust enrichment, and the lower court's judgment, which had denied any obligation to return unjust enrichment solely on the basis of the erga omnes formative effect of the interim order, was reversed.

Extinguishment of the Spousal Support Claim After Divorce Becomes Final and the Effect of the Interim Order

Family Litigation Act Article 62(1) (가사소송법 제62조 제1항) allows the family court, when it finds it particularly necessary for resolving a family case, to order the preservation of property, the custody of children, or any other appropriate interim measure. Once such an interim order becomes final, a legal relationship matching its terms is provisionally formed; that formative effect binds all persons and requires no separate act of enforcement.

The question is exactly which point in time 'when the judgment on the merits becomes final' refers to. In family litigation where several claims, such as divorce, property division, and child support, are joined, it is not uncommon for only some of the claims to be appealed to the Supreme Court. For instance, the divorce claim itself may become final at the first instance or on appeal, while only the ancillary claims for property division and child support are taken to the Supreme Court. If, in such a case, 'when the judgment on the merits becomes final' were read uniformly as the date the entire litigation concludes at the Supreme Court, spousal support would continue to be paid for a considerable period even though the divorce itself had already become final.

On this issue, the Supreme Court held in the above Decision 2024Da255113 that where an interim order directs the performance of several obligations, the end point of its effect must be determined with regard to the substantive right of the other party corresponding to each obligation. Therefore, once the divorce case becomes final and the spousal support claim that formed the basis of the interim order is extinguished, the spousal support portion of the interim order must also be regarded as ceasing to be effective at that point, and any amount of spousal support paid after the interim order lost its effect constitutes unjust enrichment absent special circumstances.

Implications and Points to Note in Family and Divorce Practice

What deserves attention in this case is the point at which the divorce claim became final. The Supreme Court found that the divorce claim became final on February 17, 2022, the date the appellate judgment was rendered (since the parties had not appealed the divorce part, it was not within the scope of the appellate court's review). Accordingly, the Supreme Court reversed the lower court's judgment as to the portion of the sums paid from the following day, February 18, 2022, through June 30, 2022 that corresponded to spousal support, and remanded the case. In litigation where divorce, property division, and child support are contested together, the date the entire case ends and the date the divorce claim becomes final may thus differ. It is therefore necessary to determine precisely when the divorce claim became final by checking the actual scope of the appeals and the course of the proceedings.

Nor is the full amount of living expenses paid subject to return. Where the interim order amount includes several items, such as child support, education costs, and medical expenses, the scope of restitution cannot easily be determined from the total amount paid alone. It is necessary to confirm which costs were reflected by reviewing the content of the application for the interim order, the reasons given in the decision, and the living-expense calculation materials submitted at the time. To reduce disputes, it helps to separate the basis for calculating spousal support from that for child support from the stage of applying for the interim order or negotiating the amount. If a lump sum has already been set, the relevant materials should be secured and it should be checked whether the payment obligation has changed as the litigation progressed.

Taking these points into account, the party paying living expenses should review not only the interim order itself but also the judgments at each instance, the scope of the appeals, and the payment records. Unilaterally reducing payments simply because the amount awarded in the judgment on the merits was lower, or stopping all child support simply because the divorce has become final, is inconsistent with the purport of this decision.

On the other hand, the party receiving living expenses likewise cannot assume that the previous interim order amount can continue to be received simply because the overall case is still pending. If the divorce claim became final first, the spousal support portion of the amounts received thereafter may become subject to a claim for return.