BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1482 (Wright)
As Amended August 2, 2010
Hearing Date: August 12, 2010
Fiscal: No
Urgency: No
KB:jd
PURSUANT TO SENATE RULE 29.10
SUBJECT
Spousal Support: Modification: Change of Circumstances
DESCRIPTION
This bill, sponsored by the Family Law Section of the State Bar,
would extend the sunset date by three years on provisions
regarding change of circumstances that may be the basis for a
request for modification of spousal support.
BACKGROUND
Under current law, child support obligations are calculated
utilizing mandatory statewide guidelines. (Fam. Code Sec.
4055.) Spousal support, on the other hand, is calculated
utilizing the factors enumerated in Family Code Section 4320.
Among the factors considered are the ability of the supporting
party to pay spousal support and the obligations and assets of
each party. (Fam. Code Sec. 4320(c) & (f).)
Assuming continuing spousal support jurisdiction, a spousal
support modification may be granted only if the party seeking
the modification shows a material change of circumstances since
the most recent order. (In re Marriage of Tydlaska (2003) 114
Cal.App.4th 572, 575; In re Marriage of Bower (2002) 96
Cal.App.4th 893, 899.)
Prior to 2008, 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 (In re Marriage of Lautsbaugh (1999) 72
(more)
SB 1482 (Wright)
Page 2 of ?
Cal.App.4th 1131). However, in 2007 the Legislature enacted SB
415 (Harman, Chapter 247, Statutes of 2007), which provided 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 constitute a change of
circumstances that may be the basis for a request for
modification of spousal support. SB 415 contained a sunset of
three years to allow the Legislature sufficient time to evaluate
the impact of the legislation. This bill seeks to extend the
sunset for an additional three years.
CHANGES TO EXISTING LAW
Existing law 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. (Fam. Code
Sec. 4330.)
Existing law 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. (Fam. Code
Sec. 3901.)
Existing law 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
circumstances that may be the basis for a request for
modification of spousal support. (Fam. Code Sec. 4326.)
Existing law 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. (Fam.
Code Sec. 4331(a).)
This bill would, until January 1, 2014, provide 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
SB 1482 (Wright)
Page 3 of ?
termination of child support shall constitute a change of
circumstances that may be the basis for a request for
modification of spousal support.
This bill would provide that a motion to modify spousal support
based on the change of circumstances described above be filed
within six months of the termination of the child support order.
This bill would authorize either party to request the
appointment of a vocational training counselor if a motion to
modify spousal support on that basis is filed.
This bill would provide that the termination of a child support
order would not constitute a change of circumstances in cases
that have resolved pursuant to a stipulated marital settlement
agreement where one of the following is true: (1) the agreement
or judgment contains a provision regarding what is to occur when
the child support order terminates; or (2) the agreement or
judgment provides that the spousal support order is
nonmodifiable, spousal support has been waived, and the court's
jurisdiction over spousal support has been terminated.
COMMENT
1. Stated need for the bill
The author states:
Since child support is calculated prior to spousal support,
the amount of spousal support ordered when a child support
order is also in effect is usually significantly lower than it
would be "but for" the child support. Thus, when a child
graduates from high school and there is no longer a child
support order, the amount of spousal support may be
insufficient to meet the supported spouse's needs. [Family
Code] Section 4326 considers a child graduating from high
school a change of circumstances, so a party may seek a
modification of spousal support when the child support order
is no longer in effect. If [Section] 4326 is not extended, a
termination of child support will no longer constitute a
change of circumstances and a modification of spousal support
on these grounds may not be permitted.
2. Bill would extend sunset for three years with a few
modifications
SB 1482 (Wright)
Page 4 of ?
a) Motions must be filed in six-month time frame
In In Marriage of Kacik (2009) 179 Cal.App.4th 410, the Court
of Appeal of California, Fourth Appellate District, determined
that a party's request for modification of spousal support
under Family Code Section 4326 was untimely because it was
made long after the termination of the child support order.
Although Section 4326 does not contain a filing deadline, the
court construed the statute to require reasonable
contemporaneousness between the modification and the
discontinuation of child support. However, in its opinion,
the court specifically requested that the Legislature, should
it decide to extend the sunset, specify a timeframe during
which a spousal support modification request based on the
termination of child support may be filed.
Accordingly, this bill would require that the motion to modify
a spousal support order be filed within six months of the
termination of the companion child support order. This
timeframe provides a reasonable amount of time for a party to
file the motion, and would remove ambiguity from the current
statute.
b) Parties may request appointment of vocational
training counselor
Under current law, 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. (Fam.
Code Sec. 4331(a).) This bill, consistent with current law,
would also permit either party to request the appointment of a
vocational training counselor when a motion is filed for
modification of the spousal support order based on the
termination of child support.
c) Bill would not apply to cases that have resolved due to
marital settlement agreements
This bill would provide that its provisions shall not apply to
cases that have resolved as a result of a marital settlement
agreement or judgment which (1) contains a provision regarding
what is to occur when the child support terminates; or (2)
provides that the spousal support order is nonmodifiable, or
spousal support has been waived and that the court's
jurisdiction over spousal support has been terminated. These
SB 1482 (Wright)
Page 5 of ?
provisions are intended to ensure that settlements of disputes
at the time of marital dissolution are not discouraged.
Support : None Known
Opposition : None Known
HISTORY
Source : Family Law Section of the State Bar
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
**************