BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1482
                                                                  Page  1

          Date of Hearing:  June 29, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    SB 1482 (Wright) - As Amended:  June 17, 2010
           
                     PROPOSED CONSENT (As Proposed to Be Amended)
           
          SENATE VOTE  :  Not relevant
           
          SUBJECT  :  SPOUSAL SUPPORT: MODIFICATION: SUNSET EXTENSION

           KEY ISSUE  :  SHOULD THE SUNSET ON EXISTING LAW WHICH ALLOWS A  
          PARTY TO "AUTOMATICALLY" BE PERMITTED TO SEEK NEW OR MODIFIED  
          SPOUSAL SUPPORT WHEN A CHILD SUPPORT ORDER TERMINATES (TYPICALLY  
          BY THE CHILD REACHING THE AGE OF MAJORITY) BE EXTENDED FOR  
          ANOTHER THREE YEARS TO ALLOW THE LEGISLATURE TO CONTINUE TO  
          EVALUATE THE EFFECTS OF THIS LAW CHANGE?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.
                                          
                                      SYNOPSIS

          This non-controversial family law bill addresses those family  
          law cases where a child support order terminates by what is  
          called "operation of law," which typically results when the  
          child or children reach the age of majority and are no longer  
          entitled to support.  Prior to 2008, where some or no spousal  
          support was in effect when a child support order ended, the  
          termination of the child support order by operation of law did  
          not automatically allow the party who had received the child  
          support to go back to court to seek either new spousal support  
          (if they had not been receiving it already) or an increase in an  
          existing order of spousal support.  Under this traditional  
          approach prior to 2008, other supporting facts -- constituting a  
          so-called "change of circumstances" -- were required before the  
          spouse seeking new or additional spousal support was permitted  
          to return to court to seek new or additional spousal support.

          However in the 2007 legislative session Senator Harman carried  
          SB 415 (Chap. 247, Stats. of 2007) on behalf of the Family Law  
          Section of the State Bar ("FlexCom") which altered the  
          traditional rule on an experimental basis to allow a party to  
          "automatically" be permitted to seek new or modified spousal  








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          support when a child support order terminates.  That bill was  
          "sunsetted" after three years by this Committee to allow time to  
          see whether the process led to increased family law litigation  
          or other impacts.  That sunset ends this year, and the author  
          introduced this legislation this month at FlexCom's request to  
          extend the measure.

          This bill, as proposed to be amended, in addition to extending  
          the sunset for three more years, reasonably limits the  
          availability of such "automatic" spousal support request cases  
          to those cases that are filed within six months from the date  
          the child support order terminated, in the interest of fairness  
          and certainty.  In addition, the bill adds a new provision  
          permitting in such "automatic" spousal support request cases  
          either party to request the appointment of a vocational training  
          counselor.  This is consistent with the approach taken with  
          spousal support requests at the initial dissolution proceedings.  
           Finally, again as proposed to be amended, the extended law will  
          not be available in cases that resolve pursuant to a stipulated  
          marital settlement agreement, in order not to discourage  
          settlements of family law disputes at the time of dissolution.   
          Like the original law change in 2008, this bill is sponsored and  
          supported by FlexCom.

           SUMMARY  :  Seeks to extend by three years the sunset date on the  
          provision regarding change of circumstances that may be the  
          basis for a request for modification of spousal support.   
          Specifically,  this bill  :  

          1)Extends by another three years the sunset date for the  
            provision which provides that in a proceeding in which a  
            spousal support order exists or in which the court has  
            retained jurisdiction over a spousal support order, if a  
            companion child support order is in effect, the termination of  
            child support shall constitute a change of circumstances that  
            may be the basis for a request for modification of spousal  
            support.

          2)Requires that a motion to modify spousal support on the basis  
            of the change in circumstances caused by the termination of a  
            child support order be filed within 6 months of the  
            termination of the child support order.

          3)Authorizes either party to request the appointment of a  
            vocational training counselor if a motion to modify spousal  








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            support on that basis is filed.

          4)Bars the availability of this "automatic" change of  
            circumstances doctrine in cases that resolve pursuant to a  
            stipulated marital settlement agreement, in order not to  
            discourage settlements of family law disputes at the time of  
            dissolution.

           EXISTING LAW  : 

          

          1)Authorizes the court, in a judgment of dissolution of marriage  
            or legal separation, to order one party to pay spousal support  
            to the other party in an amount and for a duration that the  
            court deems just and reasonable based on the standard of  
            living established during the marriage.  (Family Code section  
            4330.  All further statutory references are to this code  
            unless otherwise noted.)



          2)Imposes on parents a duty to support an unmarried child who  
            has not attained the age of 18 years.  For a child who has  
            attained the age of 18 years, but is still a full-time high  
            school student and is not self-supporting, the duty of support  
            is extended until the time the child completes the 12th grade  
            or attains the age of 19 years, whichever occurs first.   
            (Section 3901.)



          3)Prohibits, until 2008, a court from considering the  
            termination of a child support order by operation of law as a  
            change of circumstances warranting a request for modification  
            of spousal support.  (  In re Marriage of Lautsbaugh  (1999) 72  
            Cal. App. 4th 1131.)



          4)Provides, commencing in 2008 until January 1, 2011, that in a  
            proceeding in which a spousal support order exists or in which  
            the court has retained jurisdiction over a spousal support  
            order, if a companion child support order is in effect, the  
            termination of child support shall constitute a change of  








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            circumstances that may be the basis for a request for  
            modification of spousal support.  (Section 4326.)



          5)Provides that in a proceeding for dissolution of marriage or  
            for legal separation, the court may order a party to submit to  
            an examination by a vocational training counselor upon a  
            noticed motion, for good cause, by one of the parties.   
            (Section 4331(a).)

           COMMENTS  :  This non-controversial family law bill addresses  
          those family law cases where a child support order terminates by  
          what is called "operation of law," which typically results when  
          the child or children reach the age of majority and are no  
          longer entitled to support.  Prior to 2008, where some or no  
          spousal support was in effect when a child support order ended,  
          the termination of the child support order by operation of law  
          did not automatically allow the party who had received the child  
          support to go back to court to seek either new spousal support  
          (if they had not been receiving it already) or an increase in an  
          existing order of spousal support.  Under this traditional  
          approach prior to 2008, other supporting facts -- constituting a  
          so-called "change of circumstances" -- were required before the  
          spouse seeking new or additional spousal support was permitted  
          to return to court to seek new or additional spousal support.

          However in the 2007 legislative session Senator Harman carried  
          SB 415 (Chap. 247, Stats. of 2007) on behalf of the Family Law  
          Section of the State Bar ("FlexCom") which altered the  
          traditional rule on an experimental basis to allow a party to  
          "automatically" be permitted to seek new or modified spousal  
          support when a child support order terminates.  That bill was  
          "sunsetted" after three years by this Committee to allow time to  
          see whether the process led to increased family law litigation  
          or other impacts.  That sunset ends this year, and the author  
          introduced this legislation this month at FlexCom's request to  
          extend the measure.

          This bill, as proposed to be amended, in addition to extending  
          the sunset for three more years, reasonably limits the  
          availability of such "automatic" spousal support request cases  
          to those cases that are filed within six months from the date  
          the child support order terminated, in the interest of fairness  
          and certainty.  In addition, the bill adds a new provision  








                                                                  SB 1482
                                                                  Page  5

          permitting in such "automatic" spousal support request cases  
          either party to request the appointment of a vocational training  
          counselor.  This is consistent with the approach taken with  
          spousal support requests at the initial dissolution proceedings.  
           Finally, again as proposed to be amended, the extended law will  
          not be available in cases that resolve pursuant to a stipulated  
          marital settlement agreement, in order not to discourage  
          settlements of family law disputes at the time of dissolution.
           
           Precise Amendment Language To Be Crafted Following Hearing With  
          Assistance From Sponsor  :  The amendments described in the  
          analysis will be crafted with the help of FlexCom  
          representatives following passage of the measure. 
           
          ARGUMENTS IN SUPPORT  :  FlexCom, the sponsor of this legislation,  
          wrote a helpful letter to the Committee explaining the strong  
          foundations of each of the provisions in this legislation.   
          Regarding the 6 month deadline for filing under the bill's  
          provisions, FlexCom noted helpfully, for example:

               This amendment is a result of the opinion in Kacik v.  
               Kacik (2009) 179 Cal.App.4th 410, where the court  
               stated: "Because of the unusual circumstance of  
               construing a piece of legislation that has less than  
               18 months before it sunsets, we address the  
               Legislature directly:  Section 4326 is scheduled to  
               terminate on January 1, 2011. If you decide to renew  
               it, please consider saying exactly what you mean by  
               'is in effect.' One easy solution: Specify a time  
               frame around the termination date of child support:  
               say, plus or minus six months, when a spousal support  
               modification request based on the termination of child  
               support may be filed. (Cf. Code Civ. Proc.,  473.)."   


               The six month filing deadline for a party to file a  
               motion to modify spousal support based on the change  
               of circumstances outlined in section 4326 is supported  
               by current law.  Six months is the time-frame stated  
               in the Code of Civil Procedure 473 to file a motion  
               to set aside an order or judgment; six months is the  
               deadline in Family Code 3690 and 3691 to set aside a  
               support order; and six months is the timeline  
               suggested by the court in Kacik v. Kacik.
             








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           Prior Related Legislation  :  As noted in detail above, SB 415  
          (Harman, Chap. 247, 2007) provides that in a proceeding in which  
          a spousal support order exists and a companion child support  
          order is in effect, the termination of child support by  
          operation of law shall, contrary to historical approach, itself  
          constitute a change of circumstances that may be the basis for a  
          request for modification of spousal support.
           
          REGISTERED SUPPORT / OPPOSITION  :

          Support 
           
          Family Law Section of the State Bar (FlexCom) (sponsor)
           
            Opposition 
           
          None on file


           Analysis Prepared by  :   Drew Liebert / JUD. / (916) 319-2334