BILL NUMBER: AB 1236 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 11, 2005
AMENDED IN ASSEMBLY MARCH 29, 2005
INTRODUCED BY Assembly Member DeVore
FEBRUARY 22, 2005
An act to add Chapter 4 (commencing with Section 1630) to Part 5
of Division 4 of the Family Code, relating to marital contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1236, as amended, DeVore. Marriage Choice Act of 2005.
Existing law establishes the procedures by which parties to a
marriage may seek a dissolution of marriage. Existing law also
governs marital agreements between a husband and wife.
This bill would enact the Marriage Choice Act of 2005. The bill
would establish procedures by which a couple may enter into a marital
contract rejecting the right to a "no fault"
"no‑fault" divorce, except in certain circumstances. The
bill would require couples seeking to enter into this type of
marital contract to undergo specified marital counseling and
education before entering into that contract, and also to
undergo specified marital counseling before divorcing. The bill
would require county clerks to develop and make available to the
public choice forms, as defined, in accordance with the act. The bill
would also require a county clerk to file and keep completed choice
forms within the county's permanent records and to establish a
directory of marriage education or skills training providers within
its office, as specified. By placing additional duties on local
officials, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) A primary purpose of government is to promote the general
welfare. Yet current divorce laws have created a situation that does
not further the general welfare, but rather degrades it.
(b) Children of divorce generally fare more poorly in school, in
the workforce, and in their own relationships relative to children
from intact homes.
(c) Divorced men smoke more, drink more, and have more unhealthy
diets than their married counterparts.
(d) The various cultural neuroses that are directly attributable
to divorce and its byproducts are a large part of why the
entitlements in our budget are growing at such a rapid rate.
(e) No fault No‑fault divorce
has contributed to an increased divorce rate, which in turn has
caused many negative impacts on society. For instance, because of the
increased incidence in divorce, more than one million children
annually experience the breakup of their parents' marriage.
(f) As one might expect, the dissolution of families negatively
affects children psychologically, economically, and socially. Several
studies of children in broken homes found they had higher
occurrences of psychiatric illness, substance abuse, suicide
attempts, and premarital sexual activity.
(g) Additionally, a child who repeats a grade is more likely to
come from a family shattered by divorce.
(h) Divorce impoverishes many women and children, and research
shows that families that were previously middle class saw their
incomes drop by half after divorce.
(i) Moreover, broken marriages often require the enforcement of
child support, since many noncustodial parents fail to pay for their
children's reasonable financial upkeep. In 2000, state and federal
governments spent $4.5 billion to enforce child support programs.
(j) All of these consequences produce tremendous public costs and
a self-perpetuating cycle. According to Rutgers University's National
Marriage Project, 18 to 34 year olds are marrying at greatly reduced
rates, largely because many are the products of divorce. Certainly,
all grew up in a culture of divorce. Many are afraid that if they
marry, they too will get divorced and if they are the product of
divorce, the odds are they will.
(k) Consequently, many couples live together out of wedlock, which
creates several other problems. Those who cohabit are 50 percent
more likely to divorce when they do marry and have a higher rate of
pregnancy complications compared with those who are legally wed.
These two factors can also produce a significant outlay of taxpayer
funds.
(l) It is in the interest of government policymakers to reverse
these financially destructive and personally devastating trends. One
way of doing this would be to give couples the choice of
strengthening marriage. Studies show that if couples persevere for
five years from the onset of their marital problems, their marriage
will be stronger and happier than before. Conversely, a significant
number of those who divorce say they later wish they had not.
(m) By giving couples time and incentive to stay married, we will
bring down the rate of divorce and the costs associated with it that
our society can increasingly ill afford to pay.
(n) Thus it is incumbent upon the state to find some way of
encouraging marriages to stay together. In a state that values
individual freedom to the extent that California does, giving couples
the option to freely to make it more difficult to
dissolve their marriages harms no one and actually helps society as
a whole.
SEC. 2. Chapter 4 (commencing with Section 1630) is added to Part
5 of Division 4 of the Family Code , to read:
CHAPTER 4. MARRIAGE CHOICE ACT OF 2005
1630. This chapter shall be known and may be cited as the
"Marriage Choice Act of 2005."
1631. For purposes of this chapter, the following definitions
apply:
(a) "Choice form" means a form provided by the county clerk's
office to a married couple, or a couple entering into a marriage,
which shall be completed by the couple and filed with the county
clerk as set forth in this part.
(b) "County clerk" means the clerk of the county in which the
parties have applied for a marriage license, or, if the parties are
already married, the county in which the married couple resides.
(c) "No-fault dissolution of marriage" means a dissolution of
marriage on the grounds of irreconcilable differences.
1632. (a) For married couples subject to this chapter, a
dissolution of marriage on grounds of irreconcilable differences
shall not be granted unless both parties have given consent, as
prescribed in Section 1634.
(b) This section applies to married couples who voluntarily choose
to have this chapter apply to their marriage by completing and
filing a choice form pursuant to Section 1634, including, but not
limited to, couples married outside this state, couples married
before the effective date of this chapter, and married couples
without children.
1633. A couple who voluntarily chooses to be subject to this
chapter, pursuant to subdivision (b) of Section 1632, shall do all of
the following:
(a) Receive premarital education or marriage education in
accordance with this chapter from any of the providers described in
Section 1635.
(b) Complete a choice form indicating their choice that a no-fault
dissolution of marriage will not be available and filing that form
with the county clerk after receiving marriage education together
from any of the providers described in Section 1635. A choice form
shall not be valid unless it is signed by both spouses, with each
signature acknowledged or witnessed by a notary public or the county
clerk.
(c) The county clerk shall develop and make available to the
public choice forms in accordance with this section. The county clerk
shall also file and keep completed choice forms within the permanent
records of the county. The forms shall be in substantially the
following form:
MARRIAGE OF ______________ AND _________________
Marriage Choice Form
WAIVER (option 1): "We hereby choose that a no-
fault dissolution of marriage
____ will be available to us."
____ will not be available to us."
WAIVER (option 2): "We understand that,
pursuant to the laws of the State of California,
married persons may obtain dissolution of their
marriage only by claiming that the parties'
marriage is "irretrievably broken." We
understand that most, if not all, states in the
United States may have similar laws permitting
dissolution of marriage without requiring the
proof of any reasonable grounds for dissolution
of marriage.
By signing this written marriage contract, we
knowingly and voluntarily waive any right to a
dissolution of my our marriage by any
and all other
statutory rights and provisions and specifically
limit the availability of dissolution of
marriage to only those specific reasonable
grounds for dissolution of marriage which are
herein enumerated."
Signature of both married parties:_______________
_________________________________________________
Dated: _________________________
Acknowledgment by notary public
or county clerk:
NOTICE: This form is not valid unless signed by
both spouses, with each signature acknowledged
before, or witnessed by, a notary public or
county clerk.
(d) A written agreement executed before or during marriage, in any
other state or country, may specify whether, and under what
conditions, "no-fault" grounds may be grounds for dissolution of
marriage when the parties have children and do not both consent to a
dissolution of marriage. The agreement may also specify a waiting
period for a dissolution of marriage when the parties do not both
consent to the dissolution. For these purposes only, any form
provided by a court for the purpose of making a choice, in any state
or country, if signed by both spouses and retained by the court or
other governmental agency or religious institution in its records,
shall be presumed to be a valid agreement. "No-fault" grounds include
such grounds as living apart, legal, judicial, or de facto
separation, irretrievable breakdown, incompatibility, or
irreconcilable differences, as are variously provided in the laws of
various states and countries.
(e) For those who reject recourse to no-fault dissolution of
marriage, dissolution of marriage prior to the expiration of the
counseling and consideration period set forth in subdivision (e) of
Section 1634 is restricted to the following grounds:
(1) Adultery.
(2) Infection with a sexually transmitted disease when the spouse
seeking the dissolution of marriage did not know at the time of
marriage that the other spouse was infected, or the other spouse
acquired the disease after marriage from someone other than the
spouse petitioning for dissolution of marriage.
(3) Infection with a fatal disease when the spouse seeking the
dissolution of marriage did not know at the time of marriage that the
other spouse was infected with the disease.
(4) Abandonment by the other spouse for one or more years
preceding filing.
(5) Habitual addiction to alcohol or drugs.
(6) Failure to financially provide for the family.
(7) Imprisonment for two or more years.
(8) Physical abuse, extreme mental cruelty, or sexual abuse of a
spouse or child.
(9) Legal insanity.
(10) Mutual consent of both parties.
(f) Common law equitable principles may be raised as defenses to
the action. The contract may provide for remedies for violation of
the contract, including damages, dissolution of marriage, or
separation. A decree of dissolution that does not conform to the
marriage contract is null and void. A marriage contract that limits
the availability of dissolution of marriage to only those reasonable
grounds specified above shall contain an express waiver of the right
to obtain a dissolution of marriage because of "irreconcilable
differences" or because the marriage is "irretrievably broken." When
obtaining a dissolution of marriage, the petitioner shall allege the
grounds pursuant to the contract. A dissolution of marriage shall be
granted if the other party does not deny the alleged grounds or if
the court finds that the alleged grounds exist. The restrictions also
apply to legal separations.
1634. (a) Consent to dissolution of marriage shall be either: (1)
unconditional, or (2) part of a written agreement, such as a
separation agreement, marital agreement, or premarital agreement that
is enforceable in its entirety.
(b) Consent shall be in writing unless it is given in open court.
Asking a court for a dissolution of marriage on any ground
constitutes consent.
(c) Consent may be given at any time before the judge signs a
final judgment for dissolution of marriage. Consent is not effective
if given only when the other spouse is not proposing or seeking a
dissolution of marriage, except when given in an agreement as
described in subdivision (b).
(d) Whenever consent has been given by both parties, and no other
grounds have been proven satisfactorily, the court may grant a
dissolution of marriage on grounds of mutual consent.
(e) A party who has filed a choice waiver rejecting the option of
a no-fault dissolution of marriage shall not ask a court for a
dissolution of marriage until after the counseling and consideration
period set forth in subdivision (f) has elapsed. After this time
period has elapsed, the party may obtain a dissolution of marriage
even if the other spouse refuses consent.
(f) The counseling and consideration period is two years, less six
months for each of the following circumstances:
(1) The parties have never had children.
(2) The parties have a written agreement for dissolution of
marriage and the agreement covers all relevant issues.
(3) After the period begins, the parties obtain marriage
education.
(g) The counseling and consideration period pursuant to
subdivision (f) begins when one spouse delivers a marriage help
request notice, as set forth in subdivision (h), to the other spouse.
The counseling and consideration period shall not require the couple
to live in separate residences and in abstinence from marital
relations. This period may begin with a formal declaration of intent
by the parties, which would initiate a probationary period for
attempting to save and reevaluate the marriage. During this period,
and after filing for dissolution of marriage, the parties shall not
be penalized for trying to reconcile with each other. Marital
counseling provided during this period shall address the issue of how
minor children fare as a result of a dissolution of marriage and
what parents can do to ease the effects of dissolution of marriage on
minor children. Parents who agree to a dissolution of marriage shall
submit detailed parenting plans covering all aspects of
child-rearing, including, but not limited to, visitation, discipline,
and education.
(h) The marriage help request notice shall be in substantially the
following form:
MARRIAGE OF ______________ AND _________________
Marriage Help Request Notice
TO: __________________________
FROM: _______________________
I am giving you this notice because I think our
marriage has serious problems that may lead to
separation or dissolution of marriage.
Information about marriage education and
counseling resources is available from the
superior courts in the State of California, and
from www.smartmarriages.com.
Delivering this document makes dissolution of
marriage legally possible after the
counseling and consideration period expires.
Steps that must be taken to repair the marriage:
______________________________________
______________________________________
______________________________________
Date delivered to my spouse _______________
Method of delivery _______________________
Address of delivery ______________________
Signature of spouse
who delivered this notice:
_________________
1635. (a) Marriage education or skills training required by this
chapter may be provided by any of the following:
(1) An official representative of a religious institution, or any
clergy person authorized to perform marriages, or his or her
designee, including mentor couples or other lay volunteers, if
working in a clergy-supervised program.
(2) Marriage education providers or programs listed, funded, or
authorized by any of the following:
(A) The United States Department of Health and Human Services.
(B) The United States Department of Agriculture Cooperative
Extension Service.
(C) The United States Department of Defense and the individual
military services of the United States.
(D) Any other federal, state , or local government
agency or court.
(E) Smart Marriages / The Marriages/The
Coalition for Marriage, Family and Couples Education, which
maintains a Web site available at http://www.smartmarriages.com, or
any of its component programs.
(3) Any marriage education provider or program approved by the
person who has solemnized or is solemnizing the marriage.
(4) Marriage education or skills training providers listed in any
other online or printed directories whose use has been authorized by
the Clerk of the Supreme Court.
(5) Marriage education or skills training providers listed in
directories that shall be maintained by the county clerk's office.
Each directory shall consist of a binder in which the county clerk
may place the names of local providers and materials sent by them,
copies or Web site addresses of other lists or directories authorized
by this chapter, printouts of local sections of Internet online
directories, and other materials or lists that the clerk deems
suitable.
(b) Proof of completion of marriage education or skills training,
or marriage counseling, for all purposes for which it may be required
by this chapter shall be submitted as follows:
(1) Proof of completion of training should be signed by a
provider, on the stationery, or other form or certificate, that is
used by the provider, program or sponsoring institution, but it need
not be notarized.
(2) If the provider is not yet in the county clerk's directory and
appears to the county clerk to be qualified as a marriage educator
under the terms of this section, the county clerk may add the
provider or the program to the directory, regardless of whether the
provider or program is already in another online or printed directory
or is clergy.
(c) (1) If a person who desires to reject
recourse to no-fault dissolution of marriage applies to the county
clerk for a marriage license, the county clerk shall ask if the
couple has received or are receiving marriage skills training, and
from whom. If that couple has not, or if the answer is vague, the
clerk or deputy shall inform that person that training may be
available from clergy, from programs offered by religious
institutions, and that both nonreligious and religious marriage
educators are available from the providers and directories that are
authorized by subdivision (a).
(d) Whenever marriage skills training is available in a geographic
area, information describing what marriage skills training is, where
it is available, and the purpose for marriage training, shall be
made available to the public. This information may be provided to the
public by the Internet, and also may be provided to the public in
any of the following circumstances:
(1) Upon application for a marriage license.
(2) Within offices of civil marriage celebrants.
(3) Within governmental offices that offer family services or
counseling, including any that provide services to single or married
parents or to newly released former prison inmates.
(4) Court clerk's clerks' offices
that deal with domestic relations or juvenile delinquency cases.
(5) Providers of court-referred or government-referred dissolution
of marriage education, parenting education, or custody education
programs.
(6) When taking marriage preparation classes, the couple shall
undergo the training together. If required by law or court procedures
as a prerequisite to dissolution of marriage, the individual parties
may undergo it separately and need not both choose the same program
or provider.
1636. (a) Except for evidence of living apart, a minor child of
either of the parties to a proceeding for dissolution of marriage
shall not give evidence of grounds for dissolution of marriage and
any statement of a child, by hearsay or otherwise, shall not be used
as evidence of grounds for dissolution of marriage.
(b) Except for evidence of living apart, imprisonment, or
conviction of a crime, evidence of grounds of dissolution of marriage
shall not be heard in open court, but instead shall be heard in
closed proceedings of the court.
(c) The court may nonetheless consider any evidence that it finds
to be relevant to matters before it. The sufficiency, credibility,
weight, role and use of admissions by the parties, shall be the same
in dissolution of marriage actions pursuant to this chapter as in
other actions in equity or at law.
(d) The court shall, on a case-by-case basis, determine the assets
and liabilities of the parties and equally divide the assets unless
the court finds upon good cause shown that the interests of justice
require an unequal division of the assets or liabilities.
(e) The court shall apply existing law regarding
child support, spousal support, visitation, and custody matters for
proceedings subject to this chapter.
(f) This section only applies to dissolution
of marriage proceedings for marriages subject to this chapter.
1637. (a) If a couple was married in another state or country
whose law at the time allowed a couple to make a choice of
dissolution of marriage rules at the time of the marriage or later
during the marriage, or if a couple made such a choice in another
state at some time during the marriage pursuant to legislation, and
if that couple has not completed a choice form in this state, then
the grounds for dissolution of marriage and other substantive
requirements chosen by the couple at the time of the marriage or
later, as provided by the law of the state where they did so, shall
apply instead of the dissolution of marriage grounds and other
substantive requirements provided by this state's law.
(b) If the place of last marital cohabitation was a state,
district, territory, province, or country that adjoins this state,
and one party to the marriage still remains in that place, then this
state shall not exercise any jurisdiction that it has to grant a
dissolution of marriage unless the out-of-state party consents to a
dissolution of marriage, and to the proceedings for dissolution of
marriage being heard in this state's courts.
(c) Regardless of where the couple entered into marriage, if they
have been married less than five years, they shall either show proof
of having completed or shall complete premarital education courses
through providers listed in Section 1635. If the couple has been
married for five years or more, they may dispense with the premarital
education requirement.
1638. In any dissolution of marriage proceeding commenced on or
after the effective date of this act, if there is a choice form,
agreement, or an out-of-state marriage of the kind described in
Section 1637, which may affect whether Section 1632 applies to the
marriage, then any petition for dissolution of marriage shall refer
to the choice form or other agreement. Failure to do so shall not
affect the validity or timeliness of the pleading, and later written
or oral amendment or stipulation shall be allowed
permitted up to the time of the hearing on grounds for dissolution of
marriage.
1639. Any marriage counseling or education
required before dissolution of marriage may be provided by any of the
providers listed in Section 1635, or by licensed behavioral
health professionals, psychologists, social workers, marriage and
family therapists, psychiatrists, pastoral counselors, certified
family life educators, or professional counselors, but not by a
therapist who is treating or has treated one of the spouses
separately. The individual parties may undergo it separately and need
not both choose the same program or provider. listed
in Section 1635. However, any marriage counseling required
before dissolution of marriage shall only be provided by one or more
of the following:
(a) A psychiatrist who meets the criteria of subdivision (a) of
Section 1010 of the Evidence Code.
(b) A psychologist who meets the criteria of subdivision (b) of
Section 1010 of the Evidence Code.
(c) A licensed clinical social worker who meets the criteria of
subdivision (c) of Section 1010 of the Evidence Code.
(d) A licensed marriage and family therapist who meets the
criteria of subdivision (e) of Section 1010 of the Evidence Code.
(e) A priest, rabbi, or minister of the gospel of any religious
denomination when performing counseling services as part of his or
her pastoral or professional duties.
(f) A person who is licensed to practice law in California, when
providing counseling services as part of his or her professional
practice.
(g) A person who is licensed to practice medicine in California,
when providing counseling services as part of his or her professional
practice.
(h) A person who is employed to provide marriage counseling by a
governmental entity, school, college, university, or an institution,
both nonprofit and charitable, if the person performs the counseling
under the supervision of the organization and the person was employed
to perform the counseling as part of his or her employment with the
organization.
SEC. 3.
If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.